Opinion
No. CV 04 400 0618
July 24, 2006
MEMORANDUM OF DECISION RE WHETHER TENANT LIABLE IN SUBROGATION TO INSURANCE COMPANY
Factual Background
The plaintiff, Merrimack Mutual Fire Insurance Company ("Merrimack"), commenced this action on August 20, 2004, by filing a one-count complaint. Merrimack insured the property owned by Deborah Schlacter located at 323 River Road, Pawcatuck, Connecticut ("the premises"). On November 29, 2002, the defendant, Christopher Hall, was painting at the premises when he caused paint thinner to spill into a kerosene heater, which resulted in a fire that caused extensive damage to the premises. Pursuant to the terms of the insurance policy, the plaintiff paid for the damages to the property and now attempts to exercise whatever subrogation rights which Ms. Schlacter has to reimbursement from the defendant.
The defendant has filed a motion for summary judgment with supporting memorandum of law. Attached to the motion is the defendant's affidavit in which he states that he had an agreement with Pierce Hall ("the landlord"), his first cousin and the husband of the insured, to rent the premises and had paid one month's rent in the amount of five hundred dollars prior to the fire. A transcript of his deposition discloses that although he did not recall when the rent was paid, as of the date of the fire he had the right to possess and take occupancy of the premises. He claims that the plaintiff insurer is barred from pursuing a subrogation action against him because at the time of the underlying fire he was a tenant pursuant to an oral rental agreement for the insured property, and that that oral agreement does not contain a subrogation agreement.
The plaintiff has filed an objection to defendant's motion for summary judgment, together with a supporting memorandum and the depositions of the defendant and the landlord. The plaintiff argues that there is a genuine issue of material fact as to whether the defendant was a tenant of the plaintiff's insured at the time of the fire.
Standard for Deciding Motion for Summary Judgment
Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if "the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004); Lee v. Duncan, 88 Conn.App. 319, 323-24, 870 A.2d 1 (2005). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.26 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
Analysis
The defendant argues that the plaintiff is barred from prosecuting this subrogation action against the defendant pursuant to the holding in DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002). The Supreme Court held that absent a specific agreement to the contrary, a landlord's insurer is barred from pursuing a subrogation claim against a tenant whose negligence damaged the landlord's property. This decision was recently reaffirmed in Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28 (2006). In Vaszil, the Supreme Court reversed the Appellate Court's decision overturning the trial court's (Jones, J.) granting of summary judgment and directed that the trial court enter summary judgment for the defendants holding that a written lease must contain a clear and express provision informing the tenant that the landlord's insurer has the right to pursue subrogation against the tenant. The holdings in DiLullo and Vaszil are controlling if the defendant is a tenant. In this case, there is no evidence of a specific agreement allowing the landlord's insurer to pursue a subrogation claim against the defendant. This court has been provided with the defendant's affidavit and two depositions that demonstrate there was merely an oral lease, providing even less protection than a written one containing a clear and express provision. Without the express agreement of the defendant to be subject to subrogation by the plaintiff, the plaintiff cannot seek redress from the defendant.
The plaintiff here argues that a question of material fact exists as to whether the defendant was a tenant or merely a houseguest at the time of the fire and that as a houseguest he is subject to a subrogation suit arising from damage caused by his negligence. See Wasko v. Manella, 269 Conn. 527, 849 A.2d 777 (2004). General Statutes § 47a-1(1) defines tenant as one who "is entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others."
The moving party has submitted an affidavit stating that the defendant "had an agreement . . . to rent [the premises] . . . had paid Pierce Hall one month's rent of $500 . . . [and] had a key to the premises and could have moved into the premises at any time I chose but first decided to paint the interior before moving." The plaintiff has failed to submit any affidavits to establish that a genuine issue of material fact exists in this matter. When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
Both parties, however, have submitted deposition testimony evidence as other proof in support of their motions. The Appellate Court has held that while "deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996). The depositions of both the defendant and the landlord establish that the defendant was entitled to occupy the dwelling to the exclusion of others as of the date of the fire. The defendant testified he agreed to an oral lease (C. Hall Depo., p. 8) and had paid five hundred dollars in rent prior to when he began working on the premises and the date of the fire (C. Hall Depo., p. 17). The plaintiff has not provided the court with any evidence to the contrary. In fact, Pierce Hall testified that the defendant was renting the premises (P. Hall Depo., p. 8) and that pursuant to the rental agreement the defendant had the right to possess and take occupancy of the premises on the date of the fire (P. Hall Depo., p. 9). The court finds that he was a tenant at the time of the loss.
Conclusion
Accordingly, this court finds that there is no genuine issue of material fact as to the defendant's tenancy. Therefore, the defendant's motion for summary judgment should be and hereby is granted.