Opinion
WWMCV156009422S
03-06-2018
GENERAL INSURANCE COMPANY OF AMERICA v. Anton Mark WAGENBRENNER et al.,
UNPUBLISHED OPINION
OPINION
Cole-Chu, J.
On February 2, 2014, a home at 480 Westford Hill Road in Ashford, Connecticut, which was interpleader claimant Mark Wagenbrenner’s (Mark) home, was so substantially destroyed by fire as to be uninhabitable. Mark had a homeowners insurance policy issued by the plaintiff on the day of the fire. The policy took effect on May 27, 2013, and expired exactly one year later. Both Mark and his brother Joseph Wagenbrenner (Joseph) claim they are entitled to all of the proceeds under the policy. This interpleader action is the result of that dispute: the plaintiff having deposited with the court the money it admits is due under Mark’s insurance policy, the only parties now are Mark and Joseph, as claimants to those funds.
On September 22, 2016, Joseph filed a motion (# 144) for summary judgment on count one of his amended claim (# 136) and, as to liability only, on count six of that claim. After Mark failed to oppose the motion- or to reply at all- the motion was granted on January 30, 2017. See ruling # 144.15. On February 28, 2017, Mark moved (# 159) to open the partial judgment. That motion was granted (# 159.10), resulting in Mark being able to oppose and argue Joseph’s motion for summary judgment, which Mark has done: the motion was argued and resubmitted on December 18, 2017.
At the outset, the court clarifies that the pleadings for purposes of the present motion for summary judgment are those as of September 22, 2016, when the motion was filed. Those are Mark’s amended claim (# 133) and Joseph’s answer (# 135); and Joseph’s amended claim (# 136) and, since Mark did not answer Joseph’s amended claim before the present motion was filed, Mark’s answer (# 125) to Joseph’s original claim. See McNeil v. Riccio, 45 Conn.App. 466, 473-74, 696 A.2d 1050 (1997). The court disregards Mark’s November 6, 2017, answer (# 183), but that does not mean Mark cannot oppose the present motion by facts which he claims show a triable issue of fact preventing the court from concluding Joseph is entitled to judgment as a matter of law. See Practice Book § 17-49; Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985).
DISCUSSION
The party seeking summary judgment has the burden of showing that there is no pertinent issue of fact. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). On a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Id., 320, 77 A.3d 726. If the movant does not establish that there is no genuine issue of material fact, the nonmovant need not submit evidence establishing that there is a material issue of fact in dispute. Id., 320-21, 77 A.3d 726. If, however, the movant sustains his burden, the party opposing summary judgment can only defeat it by establishing that there actually is a disputed issue of material fact. Id., 320, 77 A.3d 726.
Seeking summary judgment as to count one of his amended claim, for real estate casualty insurance proceeds deposited with the court, Joseph argues that, based on his ownership, of record, of a 75% interest in the 480 Westford Hill Road, Ashford, home (" the home" ) and because he is listed as an " additional insured" on the subject homeowners insurance policy after the date of loss, he is entitled to disbursement of $109,854.73 from the interpleaded funds for loss of the home. Mark disputes that Joseph was properly added as an insured on Mark’s insurance policy: Mark offers evidence that Joseph was added to the insurance policy two days after the fire, retroactively, and avers that that was done without Mark’s consent or knowledge.
An " additional interest," for insurance purposes, cannot be equated to " insured" or " additional insured" status. See Portnoy v. Allstate Indemnity Co., 2010 N.Y. Misc. (2010); Westview Drive Investments., LLC v. Landmark American Ins. Co., 522 S.W.3d 583, 594-95 (2017). It appears from the evidence that, under the provisions of Mark’s homeowner’s insurance policy, Joseph does have an additional interest in the property, i.e., an interest in addition to the insured’s- Mark’s. But the court cannot find, as a matter of law, that he is an " additional insured" under the policy, let alone had that status on the date of loss. The homeowner insurance policy defines " insured" as: " (1) you; and (2) as long as you remain a resident of the residence premises, the following residents of the residence premises: (a) your relatives; (b) any other person under the age of 24 who is in the care of any person described in (1) or (2)(a) above." " You" refers to the " named insured shown in your Policy Declarations." (Internal quotation marks omitted.) (# 144, Exhibit N, 23.) Analysis of the policy reveals at least a triable issue of fact as to whether Joseph is an " insured" under the terms of the policy. The policy has a section entitled " Insurable Interest and Limit of Liability" which states, " [e]ven if more than one person has an insurable interest in the property covered, we will not be liable in any one loss: (a) for more than the amount of the insured’s interest at the time of loss; or (b) for more than the applicable limit of liability, whichever is less." (Emphasis in original.) See # 144, Exhibit N, 12.
Ironically, unless Joseph is an insured under the subject policy, the greater his interest in the home- and, thus, the smaller Mark’s interest in the home- the lower the insurance coverage would be under subsection (a) of the " Insurable Interest and Limit of Liability" section.
Joseph does have an insurable interest in the home, but there is a dispute as to whether Joseph was properly added to the insurance policy. Witness Kevin Schroeder, an insurance agent, testified (by affidavit) that Mark instructed him in 2009 to purchase an insurance policy for Mark and to name Joseph an additional insured. (# 144, Exhibit L.) Mark testifies that he never agreed to add Joseph to the policy. (# 184, Mark’s Affidavit.) In evidence is a letter stating Joseph was added two days after the fire. (# 184, Exhibit F.)
" In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). Accordingly, summary judgment is denied as to count one.
On the sixth count of Joseph’s amended claim, he seeks summary judgment on liability (not damages) for negligence on the ground that Mark negligently left frying potatoes unattended, which caused the fire that damaged the dwelling and its contents. In opposition, Mark argues that Joseph’s negligence count is barred by the statute of limitation for such claims (General Statutes § 52-584) and that there are genuine and material issues of fact as to the cause and circumstances of the fire- that, essentially, liability for negligence is not shown as a matter of law by one’s leaving frying potatoes unattended.
Mark also argues that Joseph’s claim of Mark’s liability to Joseph for negligence is not a proper count in an action for interpleader. The court is unpersuaded. This type of claim is a creature common and recognized in the forests of interpleader. See Topa Ins. Co. v. Singh, Docket No. 1:11-CV-01573-MJS (PC), 2012 WL 4747216, at *3 (E.D.Cal. October 3, 2012) (" [t]his [negligence] action, brought by a liability insurance company faced with multiple claims against a negligent insured in amounts multiple times greater than the liability policy covering the negligence, is a common and recognized basis for interpleader" ). In reply, Joseph argues the court should not consider Mark’s answer and special defenses, or any evidence produced in Mark’s opposition for summary judgment. The court will not consider Mark’s answer and special defenses, but will consider evidence produced in opposition. The trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment. See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012) (" [w]hether a trial court should consider documentary evidence submitted by a party in relation to a motion for summary judgment presents an evidentiary issue to which we apply an abuse of discretion standard" ). ---------
As a general rule, it is accepted that " [s]ummary judgment procedure is especially ill-adapted to negligence cases, where ... the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ... [T]he conclusion of negligence is necessarily one of fact ... [Therefore,] [i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). However, " the issue [of causation] becomes one of law when the mind of a fair and reasonable person could reach only one conclusion ..." (Internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997). " [I]f there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011).
In support of the present motion as to count six of his amended claim, Joseph has submitted the fire investigator’s report as exhibit R to his motion. Joseph argues the fire report concludes that Mark was the cause of the fire. The report only states the area of origin was determined to be on the stovetop where heating elements came into contact with combustible materials. Additionally, the report states that it could not be conclusively determined if there were other causes to the fire. (Exhibit R, 3.)
This evidence is insufficient to meet Joseph’s burden of establishing that there is no genuine issue of material fact as to whether Mark was liable for negligence in regards to the fire. Because Joseph has not met his burden of providing the court with evidence that is sufficient to establish that there is no question as to this material issue, the court denies his motion for summary judgment on this ground. The court does not need to analyze whether Mark’s alternate argument- that count six is barred by the statute of limitation- defeats the present motion: that claim, too, will be for the trier of fact.
CONCLUSION
The court finds genuine issues of material fact exist as to both of Joseph’s claims for summary judgment. Accordingly, the motion must be, and is, denied.