Opinion
No. X04-CV-02-0126640S
July 14, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
In this declaratory judgment action in three counts the plaintiff insurance company, Nationwide, seeks summary judgment in its favor on all counts of the complaint against the defendant Lydall Woods Colonial Village, Inc., hereafter Lydall Woods, a planned unit development in Manchester, Connecticut, and against certain individual unit owners in the development. In Count One of the complaint, Nationwide seeks a determination of its rights and duties to defend and indemnify Lydall Woods under its policies of insurance in a case pending against Lydall Woods brought by the individual unit owners, entitled " Mary Jane Watson et al. v. Lydall Woods Colonial Village, Inc., hereafter the "Watson claim." In Count Two, it seeks a determination that the claims of the individual unit owners for damage to their property are not covered by the insurance polices and are specifically excluded from coverage. In Count Three, it claims that the individual unit owners and Lydall Woods breached those provisions of the policies requiring them to give timely notice to the plaintiff and to protect the covered property from further damage. It asserts that their conduct voided the policies. For the reasons set forth in detail below, the court concludes that Nationwide is not entitled to judgment on any of the counts as a matter of law and that there are material issues of fact in dispute. The court therefore denies the motion for summary judgment.
Mary Jane Watson et al. v., Lydall Woods Colonial Village, Inc., CV-01-0126641S, presently consolidated with this declaratory judgment action on the Complex Litigation docket.
I. FACTS
Lydall Woods is a common interest community with multiple units, some units sharing a building and other units consisting of single-family detached homes. It is known as a planned unit development, a "PUD." Under its declarations as a PUD, Lydall Woods does not have any common elements and the unit owners own their entire unit and the land to which it is connected, unlike a condominium development and its association. Lydall Woods and its unit owners have been insured by Nationwide since 1989. In general, the policies provide coverage on an all-risk basis for the buildings, which make up the development. In addition, liability and errors and omissions coverage are provided to the Lydall Woods board of directors.
Plaintiff's Motion of Summary Judgment dated March 27, 2003, pages 2, 3 and 4.
The genesis of the present litigation occurred in 1987 when the Watsons claim there was water damage to the foundation of their unit at 56 Deer Run Trail in the development. Undisputed is the fact that in 1989, at the direction of Lydall Woods, the Watsons contacted Nationwide's local agent and that sometime later in 1989, they received a phone call informing them there was no insurance coverage for their claim. The Watsons took no further action at that time.
A review of the affidavits indicates that a letter denying coverage for these events was sent by Nationwide in 1989 which the Watsons apparently never received and which was kept in the files of Lydall Woods.
Alter additional water problems, on March 31, 1994, the Watsons sent a letter to Lydall Woods requesting financial assistance with repairs to the drainage swale outside their unit or other drainage work, which request was denied by Lydall Woods. On May 20, 1994, the Watsons sent another letter to Lydall Woods, stating that Lydall Woods was responsible for water drainage problems affecting more than their unit pursuant to the Lydall Woods PUD Rules. There was no response by Lydall Woods to the second letter. No further action was taken at that time by either the Watsons or Lydall Woods.
In 1999, the Watsons and the remaining defendant unit owners of the building containing the Watsons' unit notified Lydall Woods that further damage had been discovered. The Watsons again asserted claims against the Lydall Woods board of directors for their failure to earlier take action to correct the problems. Nationwide was notified of all of the claims and received written notice of the Watson claims in the fall of 1999. Thereafter, Nationwide denied coverage.
Written claims were filed with Nationwide by the remaining unit owners as follows: Smith on 12/6/2000. Jerams on December 7, 2000, and Shea on December 8, 2000 for the same water drainage and foundation problems asserted by the Watsons.
On August 21, 2001, the underlying Watson action was brought by Mr. and Mrs. Watson against Lydall Woods, and Nationwide is now defending Lydall Woods under a full reservation of rights. In the underlying action, the plaintiffs have alleged negligence, breach of contract, breach of fiduciary duty as well as intentional and negligent infliction of emotional distress against Lydall Woods. They claim in summary that Lydall Woods was negligent in failing to correct the water and/or drainage problems affecting their building and that it breached its duty to them as unit owners from 1994 to the present.
II. DISCUSSION A. Standard of Review for Summary Judgment
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." LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002); QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 351, 773 A.2d 906 (2001); Alvarez v. New Haven Register, Inc., 249 Conn. 709, 714, 735 A.2d 306 (1999); Practice Book § 17-49.
The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn. App. 265, 269-70, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 373 n. 7, 746 A.2d 753 (2000); DHR Construction Company v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000); Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999); Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 784 A.2d 1024 (2001). In Connecticut, a trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff [the trier of fact] could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Colombo v. Stop Shop Supermarket Co., 67 Conn. App. 62, 64, 787 A.2d 5 (2001), cert. denied, 259 Conn. 912, 789 A.2d 993 (2002).
B. Issues re Insurance Coverage
In this motion for summary judgment the plaintiff seeks resolution of two different sets of coverage issues, the first of which involves first-party coverage to the unit owners directly for the claimed property damage and the second of which involves the coverage for Lydall Woods, of the third-party claims. Because these are nonetheless interrelated claims and require the court's interpretation of the policy provisions, the court will address the claims with reference to each count of the declaratory judgment complaint.
1. Count Three Breach of the Material Notice Provisions of the Policies
In Count Three, the plaintiff claims the policies are voided because Lydall Woods and the unit owners failed to provide timely notice of loss or damage or of claims, material conditions of the policies which, if breached, would void coverage. The claims of failure to provide notice are best analyzed by breaking down the obligations of each group of defendant insureds, as the issues are somewhat different for the unit owners and Lydall Woods itself.
The notice provisions of the 1994-1995 Building and Personal Property Coverage Form and 1998-1999 Business Provider Standard Property Coverage Form of the Policy provide for the unit owners as follows:
3. Duties in the Event of Loss or Damage: You must see that the following are done in the event of loss or damage to covered property:
(2) Give [Nationwide] prompt notice of the loss or damage. Include a description of the property involved.
(3) As soon as possible, give [Nationwide] a description of how, when and where the loss or damage occurred.
(4) Take all reasonable steps to protect the covered property from further damage by a covered Cause of Loss.
(a) The Notice given by Unit Owners
Starting with the unit owners, other than the Watsons and the defendant Evelyn Smith, no unit owner gave notice to Nationwide of any damage claim until 2000. And none of the other unit owners outside of the Watsons are plaintiffs in the underlying Watson suit. To the extent the problems began to occur before 1994 and 1999, such notice letters by the defendants Jerams and Shea were clearly not undertaken "as soon as possible" nor were they "prompt." But the law in Connecticut about untimely notice of claims by insureds to their insurance carriers permits insurers to void coverage only if they were prejudiced. See Aetna Casualty Surety Co. v. Murphy, 206 Conn. 409, 417-18, 538 A.2d 219 (1988), where the court stated:
[A] proper balance between the interests of the insurer and the insured requires a factual inquiry into whether, in the circumstances of a particular case, an insurer has been prejudiced by its insured's delay in giving notice of an event triggering insurance coverage. If it can be shown that the insurer suffered no material prejudice from the delay, the nonoccurrence of the condition of timely notice may be excused because it is not, in Restatement terms, "a material part of the agreed exchange." Literal enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages
Initially, the case law holds, there is a presumption that an insurer is prejudiced by late notice, which may be rebutted by the opposing party. In this instance, the defendants Smith, Jerams and Shea claims are coterminous with the Watson claims and for these purposes in the motion for summary judgment on the issues of notice will be treated as the same. The undisputed facts with respect to the Watson claims for property damage are that verbal notice was provided to Nationwide in 1989, and an investigation was conducted at that time. Nationwide denied coverage, but had an opportunity to investigate the claim early on. While there was no written notice provided directly by the Watsons in 1994, it is apparent that Nationwide was aware of the ongoing issues at that time as well.
See the affidavit of Ann Devine, property manager of Lydall Woods, regarding letters in the Association's files which provide evidence of notice to Nationwide, including notice of the Smith claim.
The Watsons gave timely notice in 1999 and by implication so did the defendants Smith, Jerams and Shea of the underlying conditions of which they complain. Nationwide again had a timely opportunity to investigate the property damage claims and did so investigate. The court concludes, from the affidavits, that there are contested issues of fact concerning the timeliness of the notice and any prejudice to the plaintiff insurer. These contested issues would not appropriately be resolved by a summary judgment motion. The plaintiff is not entitled to judgment as a matter of law on the issues of notice.
(b) Notice by Lydall Woods
The claim with respect to Lydall Wood's failure to give notice is somewhat more complex. The first issue relates to when Lydall Woods had notice of a "claim" against it. In 1998, the insurance coverage for Lydall Woods changed from a "claims made" policy to an "occurrence based" policy. Because a gap in coverage would ensue from such a change, a "prior acts coverage" endorsement was included in the 1998-1999 policy to prevent such an insurance gap. Nationwide states there is no coverage for the claims asserted in the Watson suit against Lydall Woods because Lydall Woods had knowledge of the Watson "claim" before November 11, 1998, the effective date of the new policy. Its reasoning is premised on the fact that as of the effective date of the 1998 policy, Lydall Woods was obligated to give Nationwide notice of any known claims against it. By failing to do so, Nationwide asserts Lydall Woods voided its coverage and is not entitled to protection under the "prior acts coverage" endorsement.
Resolution of this issue requires a determination of what is meant by "claim" pursuant to the policy of insurance and the circumstances of this case. The court must also consider the general principles, which apply to the construction of contracts of insurance. "Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff] expected to receive and what the defendant was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally reasonable] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted." (Internal citations omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 796, 807 A.2d 467 (2002).
In this instance, "claim" does not encompass the property damage issues, which the individual unit owners raise but the claims by the Watsons that Lydall Woods failed to follow its PUD bylaws in 1994 after the Watsons made demand on it. The point that Lydall Woods makes is that it had no knowledge that the Watsons would seek redress for alleged damages flowing from Lydall Woods's 1994 failure to act until the Watsons asserted these claims in 1999. The uncontested fact is that the first time the Watsons articulated the claims now set forth in the underlying Watson suit was by letter dated September 16, 1999 from their counsel to the Lydall Woods board of directors. The demands that the Watsons made for financial assistance and for correction of damage in 1994, and for the second time in July 1999 are distinct from the claims they first asserted in their counsel's letter of September 1999 to hold Lydall Woods responsible for the board's 1994 failure to take action.
Turning now to the actual policies, "claim" is not a defined term. But the sections dealing with "wrongful act" in the 1994 policy errors and omissions coverage form are illustrative of what term is intended to encompass. The policy states on page 3:
This endorsement applies to any Wrongful Act which occurs:
1. On or after the retroactive date, and then only if claim is made or suit is brought against an Insured during the term of this endorsement.
2. Within the time stated in 1. above, if during the term of this endorsement the Insured shall have knowledge or becomes aware of a Wrongful Act and shall, during the term of this endorsement give written notice to it, then such notice shall be considered a claim hereunder.
"Wrongful Act" is further defined as "any actual or alleged negligent act, error, commission, or breach of duty by the Directors or others in the discharge of their duties individually or collectively." Further, the replacement policy of 1998-1999 contains the same policy language on these points as were contained in the earlier policy.
The facts alleged in the Watson action against Lydall Woods, if proven, are without question "wrongful acts" under the policy. The court concludes, on the basis of the various affidavits and its interpretation of the plain meaning of the insurance contract language, that Lydall Woods had no knowledge of any "claim" for any wrongful act by it until the Watsons' letter of September 1999, when it provided prompt notice to Nationwide. It follows, therefore, that Lydall Woods could not provide Nationwide with notice of a "claim" about which it had not yet any knowledge on the effective date of the new policy in November of 1998. The court finds, from these facts, that the endorsement for prior acts is effective to provide insurance coverage from 1994. The court concludes that Nationwide has not established its claim of late notice by Lydall Woods as a matter of law.
The remaining allegation in Count Three of the declaratory judgment action is not specifically addressed by Nationwide's motion for summary judgment. That allegation is that none of the defendants took any action to protect the covered property from further loss. There is no evidence before the court that any individual unit owner failed to take some action to correct the water damage problems experienced. On the contrary, the only evidence in the affidavits is that the Watsons did undertake repairs from time to time. There is also no evidence that Lydall Woods failed to act after the notice of the unit owners' claims in September 1999. The plaintiff has not established this allegation in Count Three as a matter of law. For all the foregoing reasons, the motion for summary judgment is denied as to Count Three.
2. Count One Lydall Woods' Coverage under the Policies
Having discussed the differences between the 1994 policy and the 1998 policy as from 1994 to 1998 on a "claims made" and from 1998 forward on "occurrence" based provisions, the question remains what is Nationwide's obligation under these policies to Lydall Woods, if any? It is Nationwide's position in Count One that there was no timely notice and that there was no retroactive coverage for the Watson claim, issues that this opinion has previously addressed as they relate to Count Three. Those findings are meaningful for Count One as well. The court finds as to Count One that Nationwide received timely notice of the Watson claims against the Lydall Woods board of directors and that the coverage was retroactive to 1994 under the 1998-1999 endorsement for prior unknown claims.
There remain two additional reasons why Nationwide asserts it is not required to defend or indemnify Lydall Woods under the policy. First, it claims that the endorsement excludes such coverage and second it claims that damages for bodily injury and property damage are not covered because they are damages for "which the insured is obligated to pay by reason of the assumption of liability in a contract or agreement." The property damage claims will be addressed when the court discusses Count Two, as in that count the underlying property damage issues will be examined as they relate to the individual unit owners and the first party claims.
Turning first to the plaintiff's duty to defend, the court notes that the insurance company's duty is determined by the allegations in the underlying Watson complaint. "The question of whether an insurer has a duty to defend its insured is purely a question of law, which is to be determined by comparing the allegations of [the underlying] complaint with the terms of the policy." Community Action for Greater Middlesex County, Inc. v. American Alliance Insurance Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). "The duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage . . . Because [t]he duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured . . . [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured." Lightowler v. Continental Insurance Co., 255 Conn. 639, 643 n. 7, 769 A.2d 49 (2001). The court concludes that the allegations of the Watson complaint previously reviewed implicate Nationwide's duty to defend as it relates to the errors and omissions aspects of the policy.
The court must next consider the exclusionary provision on which Nationwide relies. As noted in Travelers Ins. Co. v. Namerow, 261 Conn. at p. 796, supra, the general rule of insurance contract "construction favorable to the insured extends to exclusion clauses." Applying these principles to the general language of the policies, the court concludes that they provide coverage to Lydall Woods for its acts. The 1994 policy states "a. We will pay those sums that insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies. We will have the right and duty to defend any `suit' seeking those damages. We may at our discretion investigate an `occurrence,' and settle any claim or `suit' that may result." And the 1998 policy states "a. We will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury,' `property damage,' `personal injury' or `advertising injury' to which this insurance applies." The balance of the clause is the same and each is followed by coverage amount limitations not relevant here. Absent the referenced exclusion, then, the court concludes that the Nationwide policies in general cover the damages claimed in the underlying Watson suit.
Nationwide asserts, however, that there is no coverage because of the contract liability assumption exclusion language prohibiting it. Its claim is that, because Lydall Woods exists only by reason of the planned unit development declaration, its liability is entirely derivative of this document, a contract, and is therefore excluded. No law is cited for this interpretation, which Lydall Woods disputes. And the court notes that it is Nationwide's burden to establish that the exclusion applies under these facts.
As Lydall Woods correctly points out, the "duty breached is the board's failure to properly interpret and act upon its obligations under the by-laws, not an assumption of liability under the by-laws." Further, there are apparently no Connecticut cases interpreting this insurance contract language.
Memorandum in Opposition to Plaintiff's Motion, dated April 29, 2003, page 8.
The contract liability assumption exclusion, as articulated in cases in state and federal courts around the country, is uniformly considered to apply to those situations where an insured agrees to indemnify a third party pursuant to contract, not tortious conduct as it relates to duties pursuant to a contract under which an insured was established and from which it draws its legal existence. In Fischer v. American Mutual Ins. Co., 579 N.W.2d 599 ( 1998 ND 109), the court provides the generally recognized definition. The court stated:
See for example Lumberman's Mutual v. Town of Pound Ridge, 362 F.2d 430 (2nd Cir. 1966); and state court cases, Morse Diesel v. Olympic Plumbing, 299 A.2d 276 (N.Y.App. 1st Dept. (2002); Golden Eagle v. Insurance Company of the West, 99 Cal.App.4th 837 (2002); NU-PAK v. Wine Spec., Int., 2002 Wis. App. 92, 253 Wis.2d 825; Gibbs M. Smith, Inc. U.S. Fidelity, 949 P.2d 337 (Utah 1997); Reliance Ins. Co. v. Armstrong, 292 N.J. Super. 365 (1996); Adams v. Great Am. Lloyd's Ins. Co., 891 S.W.2d 769 (Tex.App. 1995).
Fischers contend that exclusion b, dealing with assumed contractual liability upon which American Mutual relied in its . . . letter declining to defend the claim does not limit coverage. The key to understanding this exclusion and its very important exception is the concept of liability "assumed" by the insured. 2 Rowland H. Long, The Law of Liability Insurance § 10.05(2) (1998). [I]n the CGL and other liability polices an "assumed" liability is generally understood to mean the liability of another which one assumed in the sense that one agrees to indemnify or hold the other person harmless.
(Emphasis added.)
Quoting policy language similar to the policies in question, the Fischer court held that the exception did not apply where the contract was not one of indemnification. In Federated Mutual Ins. Co. v. Grapevine Excavation, 197 F.3d 720, 726 (5th Cir. 1999), remanded on other grounds, 241 F.3d 396 (5th Cir. 2001), the court stated of insurance contract language identical to that in the Nationwide policies, "this exclusion operates to deny coverage when the insured assumes responsibility for the conduct of a third party. As GEI is not being sued as a contractual indemnitor of a third party's conduct, but rather for its own conduct the exclusion is inapplicable."
From a definitional standpoint, the court concludes, therefore, that the contractual liability assumption exclusion contained in the Nationwide policies does not operate to bar coverage for Lydall Woods for claims based on its own conduct despite the fact that such conduct is undertaken pursuant to the contract which established its legal existence. There are also policy reasons why this should be so. First, to hold otherwise would render any coverage for Lydall Woods a nullity. One cannot assume these two contracting parties intended for there to be payment of premiums for no insurance coverage. Second, from an underwriting perspective, an insurance company would not wish to insure risks that its insured undertakes for third parties, who are not contracting parties to the underlying insurance contract. It is precisely to avoid such tangential liability that the contractual liability assumption exclusion is contained in insurance policies. On the other hand, in this case, both Lydall Woods and the unit owners do not present unknown risks and are both direct parties to the contracts of insurance. Each presents insurance risks that Nationwide contracted to underwrite.
3. Count Two The First Party Claims of the Unit Owners CT Page 8293
(a) The Property Damage Claims
In Count Two, Nationwide asserts that the type of damage for which the Watsons seek recovery in the underlying suit is excluded from coverage. Each side has raised a preliminary issue as to the lack of first-hand knowledge contained in the various affidavits referring to the various experts examining the water-related damages, their causes and cures. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "Our courts have repeatedly held that hearsay statements are inadmissible evidence pursuant to Practice Book § [17-44] . . . and that a mere assertion of fact is insufficient to establish the existence of a material fact." Associates Financial Services of America, Inc. v. Sorenson, 46 Conn. App. 721, 732-33, 700 A.2d 107 (1997).
Yet, even if the various experts had filed properly authenticated affidavits to which their reports were appended, these conflicting, now no longer hearsay affidavits would preclude the relief that Nationwide is seeking. And that is so because the court would need to reach factual conclusions about causation. And to do so would be contrary to the court's duty in a summary judgment motion to determine if there are issues of material fact in dispute, not to resolve them, and most particularly not on the central issues of causation. See Stewart v. Federated Dept. Stores, 234 Conn. 597, 611, 662 A.2d 753 (1995). As the court earlier noted: "[e]qually well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [T]he trial court's function is not to decide issues of material fact but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn. App. 269-70, supra.
How crucial the determination of causation is to the motion for summary judgment becomes apparent in reviewing the policy language. Turning now to Nationwide's claims, the policy provides coverage for the buildings of the PUD for the "risks of direct physical loss." There are certain specific events and matters excluded, which the policy does not cover, Some of them are set forth in detail below. They include in CP Form, A. Coverage § 2(f):
the cost of excavations, grading, backfilling or filling . . .
(h) Land (including land on which the property is located), water, growing crops or lawns;
(m) under ground pipes, flues or drains.
CP Form A. Coverage 3 refers to the cause of loss and states:
B: Exclusions, § 1,
[Nationwide] will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence of the loss.
b. Earth Movement
(1) any earth movement such as earth sinking, rising or shifting;
g. Water
(1) Flood, surface water, all whether driven by wind or not;
(3) Water that backs up from a sewer or drain; or
(4) Water under the ground surface pressing on, or flowing or seeping through;
(a) foundations, walls, floors or paved surfaces;
(b) basements, whether paved or not; or
(c) doors, windows or other openings.
And there are more exclusions cited by Nationwide not set forth above.
As is apparent from the above policy provisions and their general outline, in order to determine in this case whether the Watsons are afforded coverage for the losses they sustained, the source of the damage, causation must be found. Such a determination would be based on a detailed assessment and weighing of the various expert opinions. It must await a full hearing with the benefit of full and searching cross-examination as well as an assessment of the credibility, demeanor and reliability of the conflicting expert opinions. While it may well be that after a full trial, the trier of facts determines that there is no coverage for the damages sustained, the time is not yet ripe for such a determination. The requested conclusion would be premature.
Returning briefly to the issues raised by Nationwide as to Lydall Woods in Count Two that the underlying property damage claims are not intended to be covered by the policies, the court finds, based on the above analysis, that there remain material disputed issues of fact about causation. Therefore, this aspect of the summary judgment claims in count two has also not been established.
(b) The Contractual Time Limitations
In its reply brief, Nationwide for the first time raises its claims that the first-party claims are precluded by the contractual time limitations set forth in the policy. Suit against Nationwide must begin "within two years after the date on which the direct physical loss or damage occurred." Whatever may be the merits of these claims or the propriety of raising them for the first time in a reply brief, the fact remains that Practice Book § 17-49 states that "[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and . . . 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." (Emphasis added.) In this case, nowhere do Nationwide's declaratory judgment action pleadings assert that the claims are time-barred as to the unit owners. Count Two asserts that the first-party claims are not covered based on certain policy exclusions and no more. The court could not, even if so inclined, grant the summary judgment motion on those grounds. For all the foregoing reasons, the court denies the motion for summary judgment for Count Two. The court also denies the motion as to Count One and the property claims as they relate to Lydall Woods for the reasons reviewed above as to Count Two.
ORDER
Having found no entitlement to summary judgment on all counts as set forth in detail above, the court denies Nationwide's motion for summary judgment.
BY THE COURT
BARBARA M. QUINN, Judge