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New London Cnty. Mut. Ins. Co. v. Sielski

Appellate Court of Connecticut

September 15, 2015

NEW LONDON COUNTY MUTUAL INSURANCE COMPANY
v.
ANDREW SIELSKI ET AL

Argued May 14, 2015

Page 926

Action for a declaratory judgment to determine if the plaintiff was obligated to defend or indemnify the named defendant under a certain homeowner's insurance policy, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the defendant James Wishneski et al. were defaulted for failure to appear; thereafter, the court, Wiese, J., granted the plaintiff's motion for summary judgment and rendered judgment thereon, from which the named defendant appealed to this court.

SYLLABUS

The plaintiff insurance company brought this action seeking a declaratory judgment to determine if it was obligated to defend or indemnify the defendant S under a homeowners insurance policy it had issued to S, in a separate action brought against S by the defendants M and J, who had purchased residential property from S and thereafter encountered water drainage, flooding and other problems with the property. M and J alleged that S had misrepresented to them the condition of the property on a disclosure report prior to the sale of the property. The trial court granted the plaintiff's motion for summary judgment and rendered judgment thereon, determining that the plaintiff was not obligated to defend or indemnify S in the action brought by M and J because the theory of negligent misrepresentation and resulting injury alleged in that action did not constitute property damage as defined in S's homeowners insurance policy. On appeal to this court, S claimed, inter alia, that the trial court improperly determined that the damages alleged in the separate action as a result of his alleged misrepresentations were not within the policy's coverage. Held that the trial court properly granted the plaintiff's motion for summary judgment and determined that the plaintiff had no duty to defend S in the action brought against him by M and J: the damages M and J claimed as a result of S's alleged misrepresentations constituted economic or pecuniary losses, and not property damage within the ambit of the policy's coverage, none of the property damage was caused in fact or proximately by the misrepresentations, and the damage would have existed with or without the alleged misrepresentations; furthermore, the trial court properly treated as a question of law the issue of whether the damages claimed by M and J constituted property damage within the meaning of the policy, and, thus, whether the plaintiff had a duty to defend.

Glenn E. Knierim, Jr., for the appellant (named defendant).

MaryKate J. Geary, with whom, on the brief, was Matthew G. Conway, for the appellee (plaintiff).

DiPentima, C. J., and Prescott and Bear, Js.

OPINION

Page 927

[159 Conn.App. 652] BEAR, J.

This appeal arises out of a declaratory judgment action in which the plaintiff, New London County Mutual Insurance Company, asserted that it did not have a duty to defend the insured defendant Andrew Sielski in a separate action brought by Meghan Wishneski and James Wishneski (Wishneskis) against the defendant.[1] On appeal, the defendant claims that the trial court improperly (1) rendered summary judgment in favor of the plaintiff because the damages claimed in the separate action were property damages as defined in the defendant's homeowners insurance policy (policy) with the plaintiff, and (2) determined that the question of whether the alleged damages constituted property damages within the meaning of the policy was a question of law rather than a question of fact. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the present appeal. On May 11, 2011, the Wishneskis commenced an action against the defendant (Wishneski action).[2] In their seven count, second amended complaint dated February 22,

Page 928

2013, the Wishneskis alleged that they had entered into a contract to buy a residential property from the defendant. As part of his contractual obligations, the defendant completed a disclosure report, which included representations that [159 Conn.App. 653] he had no knowledge of any problems concerning basement water seepage, rot and water damage, water drainage problems, or driveway problems. After the Wishneskis purchased the property, however, they encountered a variety of problems, including drainage problems on the perimeter of the property, water coming into the property, and severe flooding that washed away their driveway. They also discovered rotten and moldy beams in the basement. The Wishneskis alleged that the defendant knew or should have known of these issues and misrepresented the condition of the home because of the exposure of the property to severe flooding during the period that the defendant owned it, and the Wishneskis' discovery of newer beams attached to older moldy and rotten beams in the basement. The Wishneskis alleged seven theories of recovery, all of which were predicated on the alleged misrepresentations of the defendant.

On June 6, 2011, and June 11, 2012, the plaintiff commenced this action against the defendant and the Wishneskis, respectively. In its December 19, 2012 amended complaint, the plaintiff alleged that although the defendant had a policy with it that was operative from February 28, 2007, until it was cancelled effective March 13, 2009, the date of the closing of the sale of the property to the Wishneskis, no claims alleged in the Wishneski action required it to defend or indemnify the defendant.

On April 8, 2013, the plaintiff filed a motion for summary judgment on the ground that there was no genuine issue of material fact in dispute and that the court could determine as a matter of law whether the plaintiff had a duty to defend or indemnify the defendant. On April 17, 2014, the court rendered summary judgment in favor of the plaintiff on its amended complaint, holding, inter alia, that the theory of negligent misrepresentation and resulting injury alleged in the Wishneski action did not [159 ...


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