Opinion
No. HHD-CV-06-5002352-S
April 4, 2008
MEMORANDUM OF DECISION RE ACTION IN DAMAGES
I. STATEMENT OF CASE
This case involves a denial of a claim of loss made under a homeowner's insurance policy. The plaintiff alleges breach of contract and breach of covenant of good faith and fair dealing. The defendant claims as special defenses: insurance fraud, coverage limitations and deductibles, failure to cooperate with investigation, and failure to file suit within one year of the date of loss. The case was tried to the court on December 18, 2007, and December 19, 2007. The last post-trial brief was filed on January 22, 2008.
II FINDINGS OF FACT
The following facts were either admitted or proved at trial by a fair preponderance of the evidence.
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Internal quotation marks omitted.) In re Antonlo M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Smith v. Smith, CT Page 5548 183 Conn. 121, 123, 438 A.2d 842 (1981).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 770 (1986). "[T]riers of fact must often rely on circumstantial evidence and draw inferences from it . . . Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact." (Citation omitted; internal quotation marks omitted.) Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 285, 748 A.2d 875 (2000).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).
The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
The plaintiff Emilio Hernandez is the owner of the premises at 306 Victoria Road, Hartford, Connecticut. He purchased the home in 1997. He lives there with his mother, Teresa Hernandez, and his brother, Victor Hernandez. They have lived together since 1997. Under the policy, "`Insured' means you and residents of your household who are; a. Your relatives . . ." Ex. 3.
In 2003, the plaintiff worked for St. Francis Hospital as a mental health worker. He made $15 per hour. The plaintiff's current gross income is $35,000 per year. From 1999 to 2001, his gross income was $18,299, $34,000 and $29,000, respectively. His mortgage was approximately $900 per month, and he drove a 1985 Mercedes.
When the plaintiff bought the Victoria Road residence, he obtained homeowners insurance through the defendant Vermont Mutual Insurance Co. (VMIC). The policy was purchased through Lombardo Insurance Agency, Inc. (Lombardo). The plaintiff paid the premiums directly to Lombardo. In August 2003, the plaintiff was current on his premium payments. The dwelling was insured for $141,000. The homeowner's policy contained provisions regarding the policy period, duties after loss, and the bringing of suit. Ex. 3.
This policy is a legal contract between you and us.
POLICY PERIOD
From: 08/20/2002 To: 08/20/2003 12:01 A.M. Standard Time at residence premises.
The residence premises covered by this policy is located at 306 VICTORIA RD, HARTFORD, CT 06114-2846
2. Your Duties After Loss. In case of a loss to covered property, you must see that the following are done:
CT Page 5549
a. Give prompt notice to us or our agent;
b. Notify the police in case of loss by theft;
c. Notify the credit card or fund transfer card company in case of loss under Credit Card or Fund Transfer Card coverage;
d. Protect the property from further damage. If repairs to the property are required, you must:
(1) Make reasonable and necessary repairs to protect the property; and
(2) Keep an accurate record of repair expenses;
e. Prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss. Attach all bills, receipts and related documents that justify the figures in the inventory;
f. As often as we reasonably require:
(1) Show the damaged property;
(2) Provide us with records and documents we request and permit us to make copies; and
(3) Submit to examination under oath, while not in the presence of any other "insured" and sign the same;
g. Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(1) The time and cause of loss;
(2) The interest of the "insured" and all others in the property involved and all liens on the property;
(3) Other insurance which may cover the loss;
CT Page 5550
(4) Changes in title or occupancy of the property during the term of the policy;
(5) Specifications of damaged buildings and detailed repair estimates;
(6) The inventory of damaged personal property described in 2.e. above;
(7) Receipts for additional living expenses incurred and records that support the fair rental value loss; and
(8) Evidence or affidavit that supports a claim under the Credit Card, Fund Transfer Card, Forgery and Counterfeit Money coverage, stating the amount and cause of loss.
h. Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.
The loss claim arose from residential break-ins that occurred in August 2003. On August 3, 2003, the plaintiff went on a vacation to Florida with several members of his family, including his mother and brother. They planned to stay in Miami for two weeks. While they were away, one of the plaintiff's other brothers, Julio Hernandez, was going to check on the house.
On August 7, 2003, Julio Hernandez called the plaintiff in Florida to tell him that 306 Victoria Road had been broken into. Julio Hernandez and his wife had gone to check on the house on or about August 3, 2003. As Julio approached the front door, he noticed household items outside the house. When he opened the door, he saw items strewn about. There was also property damage. They called the police. After the police arrived, they noticed that the back door was unlocked. Items were brought back into the house. The police gave Julio Hernandez forms to fill out to report any stolen property. When Julio Hernandez spoke with the plaintiff, Julio said he was taking care of the situation, so the plaintiff decided not to return early from his vacation.
When Julio Hernandez and his wife returned the next day, August 8, 2003, to check on the house, they discovered the house had been broken into a second time. Items that were brought back inside were now gone. The police were again called and were dispatched to the residence. Julio Hernandez called the plaintiff later that day about the second break-in at 306 Victoria Road. The plaintiff decided to come home early from his vacation because of the break-ins. On August 9, 2003, the plaintiff and his mother flew back to Hartford.
When the plaintiff returned home, he immediately noticed that there was property damage and missing items. After looking around, the plaintiff believed the burglars had removed a room air conditioner and entered through the window. The plaintiff decided to call a nephew to pick up his mother, so she would not have to see the condition of the house.
The plaintiff testified that the burglars returned later that day. He said a car drove up to 306 Victoria Road, and four guys with weapons approached the house. When they realized someone was home, they got back in the car and left. According to the plaintiff, he followed them and called 911. The car stopped on Franklin Avenue, and the occupants fled. The plaintiff testified that when the police came they determined the vehicle was stolen. Weapons were found in the vehicle. No police testimony was offered at trial.
On August 10, 2003, Julio Hernandez gave the plaintiff the stolen property report to complete. The plaintiff never actually spoke to the police. After looking through the house, the plaintiff determined that numerous items were missing belonging to him, his mother and Victor Hernandez.
The plaintiff took a few days to complete the stolen property report with assistance from Victor and their mother. The report required a description of the stolen item, the quantity and the value. Values were determined through reviewing old receipts and going to the store to get prices. The plaintiff admitted that he did not have all the receipts for the items reported stolen. He went to several stores to determine the value of items, including Best Buy and Sears. The plaintiff testified that he did not exaggerate or misrepresent anything in the report. The quantities were accurate. None of the values were guesses. He did not speculate in any way.
The plaintiff reported numerous items stolen. The most expensive items included $7,000 cash and a gold Rolex watch valued at $5,000. Other items reported stolen included: 50 Abercrombie jeans valued at $3,000, 40 Abercrombie polo shirts valued at $1,600, and 10 leather jackets valued at $3,500. The plaintiff also claimed property damage to the floor, carpets, walls, doors and windows. More items were later reported missing, including 80 bottles of assorted alcohol.
Victor Hernandez testified that by the time he drove back from Florida, the plaintiff had already cleaned up much of the mess. He tried to determine what was missing. He was very organized and knew what was stolen. He assisted the plaintiff in completing the stolen property report and helped determine the value of items by going to stores. He testified that the values were accurate.
The plaintiff testified that he called the Lombardo Insurance Agency, Inc. right away to make a claim. After completing the stolen property report, he went to the office and gave Lombardo a copy of the report. While he was there, he requested a copy of the homeowner's policy. He later requested a copy of the policy from VMIC's investigator, Randy Harakas (Harakas). A copy of the policy was not received from the defendant until September 28, 2004.
After the claim was made to Lombardo, Harakas came to the plaintiff's house to investigate. Harakas asked the plaintiff if he could look through the house. He also examined the plaintiff under oath. The plaintiff gave Harakas a videotape of the home made by the nephew after the break-ins. Harakas talked to the plaintiff about making a claim and the information needed. On or about October 2, 2003, Harakas sent a letter to the plaintiff notifying him that his claim was being further investigated.
The plaintiff believed that he complied with the policy provisions at issue. He reported the break-ins to Lombardo and provided a copy of the stolen property report. His brother, Julio Hernandez, made a report to the police. The plaintiff talked to the VMIC investigator and gave Harakas a copy of the stolen property report and receipts. The plaintiff submitted to an examination under oath.
After a review of the claim, VMIC denied coverage for any losses or damages claimed by the plaintiff. On or about September 1, 2004, the plaintiff was notified by the bank holding his mortgage that he no longer had homeowner's insurance. The plaintiff testified that he never received any notice of cancellation from VMIC.
III DISCUSSION
"Whoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim of defense." (Citations omitted.) C. Tait J. LaPlante, Connecticut Evidence (3rd Ed. 2001) § 3.3.1, p. 136. "The testimonial evidence includes both what was said on direct examination and what was said on cross examination, without regard to which party called the witness." Connecticut Judicial Branch, Standard Jury Instructions, § 1-22.
A Breach of Contract
The plaintiff alleges that the defendant breached the homeowner's policy by denying the loss claim. The essential elements for a cause of action based on breach of contract are (1) agreement formation, (2) performance by one party, (3) breach of the agreement by the other party, (4) direct and proximate cause, and (5) damages. McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 7 (2006). "[A] breach of contract claim . . . requires proof by a preponderance of the evidence." Foley v. Huntington Co., 42 Conn.App. 712, 732 n. 7, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).
The defendant claims, by way of special defense, that the plaintiff insureds are not entitled to coverage due to their misrepresentation and concealment of material facts relating to the claimed loss. "[A] special defense is not an independent action; rather, it is an attempt to "plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Valentine v. LaBow, 95 Conn.App. 436, 447 n. 10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). The policy provides: "The entire policy will be void if, whether before or after a loss, an `insured' has: a. Intentionally concealed or misrepresented any material fact or circumstance; b. Engaged in fraudulent conduct; or c. Made false statements; relating to this insurance." Ex. 3.
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 10-50." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Practice Book § 10-50, entitled "Denials; Special Defenses," provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged."
In Rego v. Connecticut Insurance Placement Facility, 219 Conn. 339, 593 A.2d 491 (1991), the Supreme Court held that the preponderance of evidence standard is the burden of proof for a special defense of misrepresentation. In reaching this conclusion, the court stated that: "An insurer who raises this special defense must prove only that the insured willfully concealed or misrepresented a material fact with the intention of deceiving the insurer . . . Unlike a party asserting a cause of action for common law fraud, an insurer who raises the special defense of concealment or misrepresentation does not have to prove that the insurer actually relied on the concealment or misrepresentation or that the insurer suffered injury . . . in the case of an insurance contract, the consequence of the alleged concealment or misrepresentation is the forfeiture of a contractual benefit . . ." Rego v. Connecticut Insurance Placement Facility, supra, 219 Conn. 346-47.
In Ofstein v. Nationwide Mutual Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV-96-0478229 (May 5, 1999, Aurigemma, J.) ( 1999 Ct.Sup. 6239) [ 24 Conn. L. Rptr. 494], the defendant insurance company moved for summary judgment on the ground that insurance policy was void as a result of various misrepresentations made by the plaintiff insured concerning a theft claim for which the plaintiff was seeking to recover. In granting the motion, the court reviewed extensively the law relating to misrepresentation:
An insurer who claims the special defense of concealment or misrepresentation as to a claim "must prove only that the insured wilfully concealed or misrepresented a material fact with the intention of deceiving the insurer." Rego v. Connecticut Insurance Placement Facility, 219 Conn. 229, 346, 593 A.2d 491 (1991); Chauser v. Niagara Fire Ins. Co., 123 Conn. 413, 196 A. 137 (1937).
The concealment or fraud provision clearly provides that the penalty for making material false statements is a voiding of the entire policy. While the result may seem harsh, the rationale for such a penalty is to "ensure that the parties will deal fairly and honestly with each other." Morgan v. Badger Mut. Ins. Co., 181 F.Sup. 496, 499 (D.C.Fla. 1960). The basis for this rationale was articulated more than one hundred years ago:
The insured is presumed to know better than anyone else the value of his property and the amount of his loss, and is bound to make his statement of loss honestly, without any attempt to obtain more than his actual damages; and this rule of law [that] thus defeats all claims, unless honestly made, is intended to protect insurance companies from frauds which might otherwise be perpetrated on them. It is a rule which can do an honest man no harm.Huchberger v. Home Fire Ins. Co., 12 F.Cas. 793 (CC.Ill. 1870).
This rationale has been reaffirmed in more recent cases. In Longobardi v. Chubb Ins. Co. of New Jersey, 582 A.2d 1257, 1261, 121 N.J. 530 (1990), the New Jersey Supreme Court held that:
misrepresentations [made during the insurer's post-loss investigations] strike at the heart of the insurer's ability to acquire the information necessary to determine its obligations and to protect itself from false claims.
In American Diver's Supply Manufacturing Corp. v. Boltz, 482 F.2d 795, 798 (10th Cir. 1973), the United States Court of Appeals for the Tenth Circuit held that:
While discovered misrepresentations do not normally result in penalties to the unsuccessful defrauder — other than losing the unjustified benefits of whatever action he sought to induce — that situation is unlike the case where the attempted defrauder is also expecting the insurance company to comply with the reimbursement provisions of a contract which they have entered into. The penalty for attempted fraud in an insurance case where a fraud clause exists, on the other hand, is not simply forfeiture of the excess of inflated recovery amount but the voiding of all actual loss benefits as well. But we cannot accept that his is too harsh a consequence in view of the insured's being put on notice and the alternative of encouraging "an everything-to-win, nothing-to-lose proposition" for the insured.
Although the penalty under the fraud or concealment clause may seem harsh, it does not apply to innocent misrepresentations by an insured. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 692, 590 A.2d 957 (1991) . . .
False statements by an insured are material "if the false statement concerns a subject relevant and germane to the insurer's investigation as it was then proceeding." Fine v. Bellefonte Underwriters Insurance Co., 725 F.2d 179, 183 (2d Cir. 1984). False statements which might have affected the attitude or action of the insurer or which would discourage, mislead or deflect the insurer's investigation are also material. Id. at 184. "An insured's misstatement is material if when made a reasonable insurer would have considered the misrepresented fact relevant to its concerns and important in determining its course of action." Longobardi v. Chubb Ins. Co. of New Jersey, 582 A.2d 1257, 1263, 121 N.J. 530 (1990).
In Allstate Ins. Co. v. Priga, 810 F.Sup. 373 (D.Conn. 1992) (applying Connecticut law), affirmed, 1 F.3d 133 (2d Cir. 1993), Allstate Insurance Company sought a judgment declaring that a homeowner's insurance policy was void under the fraud and concealment clause after the homeowner made misrepresentations on his proof of loss. The misrepresentations concerned the contents of the insured house at the time it was destroyed by fire. In Priga the homeowner claimed that various items, including electronics equipment, a video-cassette recorder, and seventeen leather jackets, were destroyed by the fire. He later admitted that those items had never been in his house. The court held that:
the statements in the Proof of Loss constitute a material misrepresentation in that they were "calculated either to discourage, mislead or deflect [the insurer]'s investigation." . . . Under the terms of the policy, such misrepresentation to [the insurer] during the investigation of [the insured's] claim renders the policy null and void.
Id. at 378 (citing Fine v. Bellefonte Underwriters Insurance Co., 725 F.2d 179 (2d Cir. 1984)).
Courts in other jurisdictions have held that when an insured knowingly or intentionally includes items in a statement of loss which were not truly lost or destroyed, the misrepresentation is material and bars the insured's entire claim as a matter of law.
Ofstein v. Nationwide Mutual Ins. Co., supra, 1999 Ct.Sup. 6242-45. In a similar case, Bauco v. Hartford Fire Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 375290 (March 3, 2004, Levin, J.) ( 2004 Ct.Sup. 3324) [ 36 Conn. L. Rptr. 799], the court granted a motion for summary judgment in a case involving a misrepresentation defense to breach of contract and breach of covenant of good faith and fair dealing claims. In addressing the issue of materiality, the court found: "Connecticut appellate courts have not articulated a test for determining materiality in the context of an insurance policy provision such as that here, but [m]ost courts have construed materiality broadly, emphasizing that the subject of the misrepresentation need not ultimately prove to be significant to the disposition of the claim, so long as it was reasonably relevant to the insurer's investigation at the time." (Citations omitted; internal quotation marks omitted.) Bauco v. Hartford Fire Ins. Co., supra, 2004 Ct.Sup. 3333.
The court in Bauco also considered the wilful element of misrepresentation defense. "A material fact is wilfully concealed or misrepresented if the insured knew it was untrue when it was made . . . A mere honest mistake or failure of recollection will not forfeit payment under the policy . . . This is not a case of an insured making a misstatement due to oversight, a misstatement regarding an irrelevant trifle, or one made during a bad faith investigation . . . [T]he intent to defraud the insurer is necessarily implied when the misrepresentation is material and the insured wilfully makes it with knowledge of its falsity . . ." (Citations omitted; internal quotation marks omitted.) 2004 Ct.Sup. 3335-37.
During the trial, credibility issues arose regarding the testimony of the plaintiff and Victor Hernandez. The trial testimony conflicted in substantial respects with prior statements made regarding the stolen property as to value, quantity, ownership, source, location and condition.
As to quantity, the plaintiff and Victor claimed that very large quantities of certain items were stolen, including fifty pairs of men's jeans, forty polo shirts, and ten leather jackets were stolen. Based on the evidence presented, the quantities of items reportedly stolen were exaggerated. Victor Hernandez seemed to admit as much during his testimony.
The testimony on value was brought into question. The plaintiff and Victor Hernandez testified that they relied, in part, on receipts found in the house. These receipts, however, raised more questions than they answered. Although there were receipts reflecting Visa and MasterCard charges, no one had a Visa or MasterCard card. Many of the receipts were for items that were not reported stolen. Some receipts were illegible, and there were multiple copies of others. Receipts were supplied for items priced less than the values claimed on the stolen property report. For example, the sport fleeces were valued at $60 each, but there was a receipt for one purchased at $49.50. Although the sneakers were valued at $70 each, some of the receipts showed sneaker purchases for as low as $14.99. Signatures on some of the receipts were not recognizable.
The evidence was also conflicting as to the ownership of certain items. The plaintiff and Victor testified that they each owned half of many of the clothes reportedly stolen. Their testimony conflicted with prior statements in many respects. The discrepancies were never more apparent than on the issue of the cash reportedly stolen, $7,000. The plaintiff testified at trial that the money was from his mother's settlement. His testimony conflicted with prior statements indicating that either the entire $7,000 was his or only $3,000 belonged to his mother. Victor Hernandez had also previously claimed ownership of most of the money. The ownership of the expensive Hard Rock Café leather jacket was put in doubt. The plaintiff told Harakas that he bought the jacket in Cancun. But Julio Hernandez testified that his wife had bought him the jacket in Montreal. Julio Hernandez, however, is not one of the insureds.
The testimony was unclear as to the source of items. In one instance, the plaintiff testified that he purchased a 14K bracelet. When questioned later, he testified that it was a gift from his father. Many items were claimed to be originally owned by the plaintiff's deceased father, including the $5,000 Rolex watch. There was also conflicting evidence as to whether the eighty bottles of alcohol were purchased, received as gifts, or belonged to the father.
The evidence was inconsistent as to the location of items in the home before the break-ins. The plaintiff testified that a 27-inch Panasonic television was located in his brother's room, but stated previously that the television was located in the mother's room. The locations of the money and a computer before the break-ins were also put in doubt.
Finally, the testimony offered regarding the condition of items was questionable. The plaintiff initially testified that every item on the report was brand new. Later, he testified that some of the items, including the leather jackets, were as much as two years old. The evidence showed that many of the items were not new including those which belonged to the father who passed away several years before the break-ins. They were valued as brand new even though they were not.
After evaluating the credibility of the witnesses and determining the weight to be accorded to their testimony, the court makes the following findings. The evidence shows that the plaintiff's home was burglarized twice in early August 2003. Damage was done to the house, and property was stolen. However, the claim of loss was not proved by sufficient credible evidence. The evidence demonstrates that numerous material misrepresentations and exaggerations were made by the insureds to the defendant VMIC concerning their claim of theft from the break-ins. The misrepresentations were wilful and not innocent. VMIC properly treated the policy as void as to the claim in which it determined that material misrepresentations had been made concerning the extent of the loss. There was also insufficient credible proof of the extent of any property damage.
Based on the evidence presented, the court finds that the plaintiff has failed to prove this claim by a preponderance of the evidence. The evidence demonstrates that the plaintiff insureds are not entitled to coverage due to their misrepresentation and concealment of material facts relating to the claimed loss. The court finds the issues in favor of the defendant on the breach of contract count.
B Breach of the Covenant of Good Faith and Fair Dealing
The plaintiff alleges that the defendant breached the covenant of good faith and fair dealing by denying coverage. "[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the plaintiff must duly prove: first, that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; second, that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and third, that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." Ruiz v. Dunbar Armored, Inc., Superior Court, judicial district of Fairfield, Docket No. CV03 0404213 (July 19, 2005; Hiller, J.) ( 39 Conn. L. Rptr. 710); See also Austrian v. United Health Group, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 05 4010357 (July 17, 2007, Stevens, J.) ( 43 Conn. L. Rptr. 852).
In Bauco, the second count alleged that the defendant acted in bad faith by refusing to pay the plaintiff's benefits for the loss sustained on the insured property. The court determined that: "the plaintiff wilfully misrepresented material facts to the defendant in violation of the concealment or fraud provision in the policy. Accordingly, the defendant may not be held to have acted in bad faith for refusing to pay the plaintiff's benefits to which they were not entitled . . ." (Citations omitted; internal quotation marks omitted.) Bauco v. Hartford Fire Ins. Co., supra, 2004 Ct.Sup. 3340-41.
In this case, the court finds, as in the first count, that the evidence presented by the plaintiff lacked sufficient credibility. The defendant acted properly in its dealings with the plaintiff in regards to the homeowner's policy. The plaintiff has not met the burden of proving, by a fair preponderance of the evidence, that the defendant breached the covenant of good faith and fair dealing.
The court finds the issues in favor of the defendant on the breach of covenant of good faith and fair dealing count.
IV CONCLUSION AND ORDER
For the above-stated reasons, the court enters judgment for the defendant, Vermont Mutual Insurance Co. This judgment resolves all the issues pending before the court.