Opinion
HHDCV126032655S
02-28-2017
Ronald Tommasi et al. v. Allstate Insurance Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Cesar A. Noble, J.
Before the court is the defendant's motion for summary judgment as to all three counts of the plaintiffs' complaint, on the grounds that there are no genuine issues of material fact that: (1) the defendant did not breach any provision of the homeowner's insurance contract issued to its insured; (2) no justiciable controversy exists with respect to the plaintiffs' demand for appraisal, as it has previously been adjudicated and thereby rendered moot; and (3) there is no evidence of negligence on the part of the defendant to support a claim for negligent infliction of emotional distress; thereby entitling it to judgment as a matter of law. For the foregoing reasons the motion is denied.
FACTS
This action arises from a dispute between residential property owners and their homeowner's insurer over the valuation of an insurance claim for a fire loss. On June 13, 2012 the plaintiffs, Ronald and Shelly Tommasi, filed a three-count complaint sounding in breach of contract, demand for appraisal and negligent infliction of emotional distress against the defendant, Allstate Insurance Company (Allstate), which alleges the following facts. Prior to January 10, 2011, the plaintiffs owned a home located at 162 Broad Street in Danielson, which was insured against loss or damage by fire by a homeowner's insurance policy (policy) issued by the defendant.
Although the plaintiffs' original three-count complaint is still operative, their second count, application for order to proceed with arbitration, has been previously adjudicated and resolved by the court's (Peck, J.T.R.) January 4, 2013 memorandum of decision granting the plaintiffs' motion to compel appraisal, filed August 17, 2012. Moreover, the plaintiffs expressly acknowledge in their memorandum in opposition to the defendant's motion that " the [plaintiffs] previously prevailed in obtaining an order to compel arbitration. As a result, the [plaintiffs] are entitled to judgment in their favor on [the second count]." Accordingly, for purposes of this memorandum, the court will only address the defendant's arguments for summary judgment as to the counts of the complaint still in dispute before the court-the first count alleging breach of contract and the third count alleging negligent infliction of emotional distress.
The parties agree that the limits of liability of the policy were $660, 097.50. The policy provided that the defendant was obligated to pay the actual cash value of the damaged, destroyed or stolen property if it was not repaired or replaced. Where a claim was made for the repair, rebuilding or replacement of the damaged, destroyed or stolen covered property, the policy provide for payment of the lesser of the following amounts:
1) The replacement cost of the part(s) of the building structure(s), with materials of like kind and quality, for similar use on the same premises;
2) The amount actually and necessarily spent to repair or replace the damaged building structure(s), with materials of like kind and quality, for similar use on the same premises; or
3) The limit of liability applicable to the building structure(s)as shown on the Policy Declaration for Coverage A
Policy, No. AP472, Section I--Conditions, § 5, " How We Pay For A Loss."
On January 10, 2011, during the period when the policy was in effect, the plaintiffs' home was greatly damaged by fire, causing them to suffer losses to their home and their personal belongings therein. After a dispute arose between the plaintiffs and the defendant regarding the amount of the loss, the parties invoked the arbitration provision in the policy entitled " appraisal." In accordance with the policy, the parties each appointed their own independent appraisers. The defendant then submitted a proposal for the scope of the appraisal that didn't comply with the policy, to which the plaintiffs objected. The plaintiffs allege that the defendant's employee, Glenn Boudreau (Boudreau), " intentionally delayed and obstructed their right to appraisal" by refusing to allow the defendant to proceed with appraisal unless certain " extraneous provisions" he sought to include in the calculations were submitted in the formal appraisal documents to the appraisers. The parties agree that the " extraneous provision" was a calculation of the " amount actually and necessarily spent to repair or replace" the home. In the view of the plaintiffs, the policy only provided for appraisal of the actual cash value and the amount of loss to each item of loss. The plaintiffs refused to participate in an arbitration that included a determination of the " amount actually and necessarily spent to repair or replace."
In the first count, it is alleged that although Boudreau knew the plaintiffs hired a contractor to replace their home, he refused to estimate the full and fair value of the cost of restoring their home to the quality of the workmanship and materials that previously existed, " intentionally misused inapplicable guidelines to minimize the estimated cost of restoring their home, " as well as " threatened to stop paying their increased living expenses to enhance the defendant's bargaining leverage" over them. The plaintiffs further allege that despite subsequently giving Boudreau an opportunity to review an alternative basis for calculating their damages, he " refused to consider any evidence of reconstruction costs that varied from the guidelines he was improperly applying, " decided that the quality of the materials that he saw were not equivalent to what the plaintiffs had before, and thus refused to disburse funds that he had previously agreed would be needed to replace the plaintiffs' home. As a result, the plaintiffs allege that they were unable to, and ultimately did not, have their home reconstructed to the level of finish and style of their former home. The first count concludes by alleging that as a result of the conduct of the defendant, acting through its agent Boudreau and described in the foregoing paragraph, the defendant " has wrongfully withheld money due to the plaintiffs, breached its [insurance] contract with the plaintiffs, and caused the plaintiffs to suffer damages . . ."
The second count incorporates the allegations summarized in the preceding paragraphs before claiming that the plaintiffs, through their insurance contract, have entered into a written agreement for arbitration, yet since the parties have failed to agree on the amount of the fire loss, the defendant was served with a demand for arbitration. The second count concludes by alleging that Boudreau has prevented the parties from proceeding with appraisal under the terms of the policy, and that " the defendant has neglected and refused to perform the agreement for arbitration as set forth in the parties' agreement, " and therefore the plaintiffs claim an order directing the defendant to proceed with an arbitration in compliance therewith.
The third count incorporates all of the allegations contained within the first and second counts by reference, and then claims that the defendant knew or should have realized that the conduct of Boudreau created " an unreasonable risk of causing emotional distress to the plaintiffs, " which distress was foreseeable, and severe enough that it might result in illness or bodily harm to the plaintiffs. Finally, the third count alleges that as a result of the defendant's conduct, the plaintiffs have suffered emotional distress, mental anguish, fear, frustration as well as a deprivation of their insurance benefits and loss of use of the monies due to them.
On August 17, 2012, the plaintiffs filed a motion to compel arbitration pursuant to the terms of the appraisal provision of the policy, which was granted by the court's (Peck, J.T.R.) January 4, 2013 order. She expressly found, however, and contrary to the assertion of the plaintiffs, that the " amount actually and necessarily spent to repair or replace" the covered property was properly to be considered in the appraisal. The Appraisal Award issued by the an arbitrator and the appraisal umpire determined the following: the replacement cost of the loss to the home at the time of loss was $772, 098; the actual cash value of the loss to the home at the time of the loss was $397, 153; the amount actually and necessarily spent to repair or replace the damaged building structure, with materials of like kind and quality, was $449, 678, and the replacement cost of the part(s) of the building structure(s), with materials of like kind and quality, was $780, 238. The parties do not dispute that Allstate paid the plaintiffs $449, 678.
The deposition transcript of Boudreau reveals that he had previously calculated the actual cash value as an average between two sources, --the RS Means manual ($248, 878.05) and the Appraisal Associates Market Value ($143, 200.00). The plaintiffs find significant the defendant's use of a completely different cost estimator, the Marshall Swift Boeckh Publications Building Cost Index, to calculate the replacement cost value of the home in connection with determining the policy premium and limits of liability, than that used when calculating the replacement cost value of the home for purposes of settling a loss. The plaintiffs claim that the use of the first two indexes yielded lower figures when calculating payment due to the plaintiffs for replacement cost than the figure obtained for determining policy limits and premium.
Allstate's use of the Marshall Swift Boeckh Publications Building Cost Index was testified to in deposition by Trahan.
On November 24, 2015, the defendant filed a motion for summary judgment on the entirety of the plaintiffs' complaint on the grounds that the undisputed facts demonstrate that there is no evidence of any breach of contract, no justiciable controversy exists regarding the plaintiffs' demand arbitration/appraisal and that there is no evidence of negligence to support a claim for negligent infliction of emotional distress. The motion was accompanied by a supporting memorandum of law, and four exhibits: (1) photocopies of six endorsed checks issued by the defendant in payment of the plaintiffs' claim for fire loss; (2) a certified copy of the policy and associated endorsements, notices and information; (3) a copy of the court's (Peck, J.T.R.) January 4, 2013 memorandum of decision granting the plaintiffs' August 17, 2012 motion to compel appraisal; and (4) a copy of the appraisal award determining the " values and loss, " signed by one appraiser and the appraisal umpire. In response, on September 30, 2016, the plaintiffs submitted a memorandum in opposition to the defendant's motion, coupled with four exhibits: (1) copies of excerpts from the certified deposition transcript of Boudreau; (2) copies of excerpts from the certified deposition transcript of Allstate employee Kevin Trahan; (3) a copy of the defendant's " claim history report, " documenting correspondence between the defendant's employees and the plaintiffs; and (4) a certified copy of the policy's fire endorsement. On October 31, 2016, the defendant submitted a reply brief to the plaintiffs' memorandum in opposition, with copies of excerpts from the uncertified deposition transcript of Boudreau attached. The court heard arguments on the motion at the October 31, 2016 short calendar.
While uncertified copies of deposition transcripts are required to support summary judgment; Practice Book § 17-45; where no objection to the court's use of same is interposed the court may exercise its discretion to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Absent objection in the present case the court will consider the uncertified excerpts of Boudreau's deposition transcript.
STANDARD
" 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 . . ." (Internal quotation marks omitted.) Martin Franchises, Inc. v. Cooper U.S., Inc., 164 Conn.App. 486, 499, 137 A.3d 882 (2016). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011), rev'd on other grounds, J.E. Robert Co., Inc. v. Signature Properties, LLC, 309 Conn. 307, 71 A.3d 492 (2013).
" The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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 . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).
DISCUSSION
A. Breach of Contract
" An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract . . ." (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 372-73, 949 A.2d 1084 (2008). " In interpreting an insurance contract, " [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] 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 . . . Under those circumstances, the policy is to be given effect according to its terms . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result . . ." Arrowood Indemnity Co. v. King, 304 Conn. 179, 186-87, 39 A.3d 712, 717-18 (2012).
" In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy." (Internal quotation marks omitted.) Arrowood Indemnity Co. v. King, 304 Conn. 179, 186-87, 39 A.3d 712, 717-18 (2012).
In its memorandum in support of its motion for summary judgment, the defendant argues that there is no triable fact issue with respect to the plaintiffs' breach of contract claim, because the defendant complied with the applicable terms of the policy related to valuation of the loss and the appraisal process, and, in turn, paid the plaintiffs' all sums determined through these processes to be due and owed.
The plaintiffs counter that genuine issues of material fact exist with respect to whether the defendant breached its contract with the plaintiffs by: (1) employing a valuation method for calculating the plaintiffs' losses from the fire that differed from the valuation method employed for setting the policy premium and limits of liability; (2) refusing to timely honor the terms of the contract with respect to the disbursement of funds to the plaintiffs for the actual cash value (ACV) of the home; (3) failing to disclose the use of a computer program, Xactimate, in addition to the stated valuation method--the RS Means 2011 Residential Construction Data Manual (RS Means)--in the document supplied to the plaintiffs detailing the computation of the ACV; and (4) failing to include a number of features the home had when computing the ACV of the loss. In addition to employing the allegedly " deceptive and abusive insurance adjusting methods, " outlined in the FACTS section of this memorandum, the plaintiffs also maintain that " Boudreau admitted that the [plaintiffs] were due the actual cash value of their home immediately after the loss. Yet, according to . . . Boudreau, up until December 15, 2014 (nearly four years after the loss), only two payments were made to the [plaintiffs] to go towards the rebuild . . ." In totality, the plaintiffs claim that " [the defendant's] unfair withholding of amounts due to them under the contract . . . and [the defendant's] unfair, deceptive and abusing insurance adjusting methods caused the [plaintiffs] to be unable to replace their historic home." The plaintiffs go on to conclude that the " [d]efendant failed to fairly and accurately assess the [plaintiffs'] losses, thereby breaching the contract."
In its reply memorandum, the defendant insists that it " did not unreasonably delay payments to the [p]laintiffs, " and offers an attached exhibit--excerpts from the uncertified deposition transcript of Boudreau--to " further indicate[s] and support[s]" this claim. Specifically, it argues that this testimony substantiates its position that [Boudreau] had " requested further documentation from the [p]laintiffs and its contractor so that it could further review what house had actually been built to replace the one that was a total loss in the fire, " and the plaintiffs neverprovided any of it, thus attributing any delay in payments to the plaintiffs to their own unresponsiveness, not the conduct of the defendant itself.
In the present case, the court finds that the defendant has not met its initial burden of demonstrating that no genuine issue of material fact exists with respect to the first count of the plaintiffs' complaint, alleging breach of contract. In particular, while the defendant may have shown through its evidentiary submissions that it disbursed the required funds for ACV and the " amount actually and necessarily spent to repair or replace" the dwelling as determined by the appraisal process, as well as complied with the policy provision governing which valuation figure it was required to pay the plaintiff as dictated by Section I--Conditions, § 5 " How We Pay for a Loss" of the policy, it has failed to " negate each claim as raised by the plaintiffs' complaint" that it " wrongfully withheld money due to the plaintiffs, [and] breached its contract . . ." See Mott v. Wal-Mart Stores East, LP, supra, 139 Conn.App. 626.
The defendant's argument that it is not liable to the plaintiffs because it paid the amount of the loss after the conclusion of the appraisal process misconstrues the thrust of the plaintiffs' allegations as asserting merely a breach of contract claim. While it is true that the first count of the plaintiffs' complaint is labeled " Breach of Contract, " the substance and import of the allegations therein reflect a breach of the implied covenant of good faith and fair dealing. " The factual allegations of a count, and not the label assigned to it by the scrivener, define the cause of action." Pasquariello v. Castle Rock Owners Assn., Inc., Superior Court, judicial district of New Haven, Docket No. CV-09-6006082-S (2010 WL 3447827, at *2) (August 5, 2010, Zoarski, J.) (in deciding a motion to strike, the court will look to the allegations of a count and not the label). The fact that the count does not explicitly refer to an implied covenant of good faith is not fatal to the assertion of the claim. The use of " magic words" is not mandated where the allegations of a complaint otherwise sufficiently assert a cause of action. See Somers Mill Associates, Inc. v. Fuss & O'Neill, Inc., Superior Court, Docket No. X03-CV-000503944-S (2002 WL 491659, at *7) (March 7, 2002, Aurigemma, J.), aff'd sub nom. Ahearn v. Fuss & O'Neill, Inc., 78 Conn.App. 202, 826 A.2d 1224 (2003).
" An implied covenant of good faith and fair dealing has been applied . . . in a variety of contractual relationships, including . . . insurance contracts . . ." (Citations omitted; internal quotation omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 170, 530 A.2d 596 (1987); see also Hoyt v. Factory Mutual Ins. Co., 120 Conn. 156, 159, 179 A. 842 (1935). " Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Citations omitted; internal quotation marks omitted.) Gupta v. New Britain General Hospital, 239 Conn. 574, 598, 687 A.2d 111 (1996); see also De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382 (2004); Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992); Hernandez v. Allstate Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV-04-0413243-S (2006 WL 2458575, at *3) (August 9, 2006, Radcliffe, J.). " [W]hen one party performs the contract in a manner that is unfaithful to the purpose of the contract and the justified expectations of the other party are thus denied, there is a breach of the covenant of good faith and fair dealing, and hence, a breach of contract, for which damages may be recovered . . ." (Citation omitted; internal quotation marks omitted.) Geysen v. Securitas Sec. Services. U.S.A., Inc., 322 Conn. 385, 400, 142 A.3d 227 (2016).
The first count alleges that Boudreau refused to provide a full and fair estimate of the cost of restoration by intentionally using inapplicable guidelines in estimating the value of the loss, as well as threatened to withhold living expenses mandated by the policy, all in an effort to obtain bargaining leverage over the plaintiffs so that they would be pressed into accepting the improperly low estimates. As a consequence, the plaintiffs claim that they were forced to reconstruct their house with lower quality materials, appliances and finishes than they had in their prior home, or otherwise would have been entitled to. This is the " benefit of the agreement" which they claim was injured by the defendant, and it is a proper subject for a claim of breach of the covenant of good faith and fair dealing. See Gupta, supra, 239 Conn. 598. Simply put, the defendant has not advanced any evidentiary basis to dispute these claims. The defendant, by reliance on its argument that it satisfied its express contractual obligations by payment of the figure found to be the " amount actually and necessarily spent to repair or replace" the plaintiffs' home, ignores the implied covenant of good faith and fair dealing, thereby leaving genuine issues of material fact unresolved. Summary judgment is therefore denied as to the first count.
While the plaintiffs claim the defendant intentionally delayed the appraisal by seeking to expand the scope to be considered by including the " extraneous" issue of the " amount actually and necessarily spent to repair or replace" the home, the court (Peck, J.T.R.) in granting the plaintiffs' motion to compel, concluded that the policy clearly and unambiguously provided for same.
B. Application for Order to Proceed With Arbitration
" Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . . ." Horenian v. Washington, 128 Conn.App. 91, 97, 15 A.3d 1194 (2011). " Mootness raises the issue of a court's subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties . . . [T]he four part test for justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Citations omitted; emphasis omitted; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 555-56, 979 A.2d 469 (2009). " A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." Burton v. Commissioner of Environmental Protection, 323 Conn. 668, 677, 150 A.3d 666 (2016).
The defendant contends in its memorandum in support of its motion for summary judgment that the " undisputed facts show, after commencing the lawsuit, the [p]laintiffs filed a motion to compel appraisal which was granted by the Court (Peck, J.T.R.) . . . the appraisal process occurred and the umpire issued his award . . ." The plaintiffs also acknowledge the same in their memorandum in opposition.
Thus, in the present case, it is undisputed that the second count of the plaintiffs' complaint, application for order to proceed with arbitration, is no longer in controversy by virtue of " intervening circumstances" occurring after the plaintiff filed its present complaint. The plaintiffs obtained their requested relief through the court's (Peck, J.T.R.) January 4, 2013 order granting their motion to compel arbitration, and the parties subsequently proceeded with, and completed, the appraisal process. As such, the second count of the plaintiffs' complaint is dismissed as moot, as no justiciable controversy remains before the court.
C. Negligent Infliction of Emotional Distress
" [I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . ." (Citations omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). " [T]he . . . elements of the cause of action for negligent infliction of emotional distress [are]: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). " [T]he elements of negligent infliction of emotional distress do not require proof of any particular level of intent. In fact, intent need not be proven at all to establish a claim of negligent infliction of emotional distress." Stohlts v. Gilkinson, 87 Conn.App. 634, 645, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005).
" As to the first and second elements of the claim, they essentially [require] that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable . . ." (Citations omitted; internal quotation marks omitted.) Larobina v. McDonald, supra, 274 Conn. at 410. In its memorandum of law in support of its motion for summary judgment, the defendant argues that the undisputed facts show that it did not commit any conduct that created an unreasonable risk of causing the plaintiffs emotional distress; thereby entitling it to judgment as a matter of law with respect to the third count of the plaintiffs' complaint. In particular, the defendant asserts that since " the [p]laintiffs have only pleaded breach of contract as a basis for their claim of negligent infliction of emotional distress" and " the undisputed facts show no breach of [the policy] by the [d]efendant, then no emotional distress of the [p]laintiffs can legally or logically be said to have been caused by the negligence of the defendant." The plaintiff counters that genuine issues of material fact exist surrounding whether the defendant's conduct in allegedly " intentionally undervalue[ing] the [plaintiffs'] home in order to unfairly leverage its bargaining position" by employing certain underwriting, pricing and claim evaluation methods created an unreasonable risk of causing the plaintiffs emotional distress.
Because of the reasons detailed in subsection " A." of this memorandum--denying summary judgment as to the first count and its holding that there remain genuine fact issues related to a breach of the implied covenant of good faith and fair dealing--the court also denies the defendant's motion for summary judgment as to the third count of the plaintiffs' complaint. The court's denial of summary judgment on the first count is dispositive of the defendant's argument.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is denied.