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Amica Mutual Insurance Co. v. Muldowney

Court of Appeals of Connecticut

July 12, 2016

AMICA MUTUAL INSURANCE COMPANY
v.
ANDREW MULDOWNEY ET AL.

          Argued Date February 9, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. Taggart D. Adams [motion to s trike]; Povodator, J. [judgment].)

          Daniel P. Scholfield, with whom, on the brief, were Benjamin D. Gettinger and Rosalie D. Louis, for the appellants (defendants).

          Dennis M. Carnelli, with whom was Susan L. Miller, for the appellee (plaintiff).

          Beach, Keller and West, Js.

          OPINION

          BEACH, J.

         In DiLullo v. Joseph, 259 Conn. 847, 851, 792 A.2d 819 (2002), our Supreme Court held that a property insurer was barred from maintaining an equitable subrogation action against a tenant possessing a unit in a multiunit commercial building for harm that the tenant caused to the entire building, where the lease was silent as to the possibility of subrogation. The issue in this case is whether DiLullo bars equitable subrogation in the different circumstances presented.

         The defendants, Andrew Muldowney and Kalynn Tupa, appeal from the judgment of the trial court in favor of the plaintiff, Amica Mutual Insurance Company. The trial court held that DiLullo did not bar the action. We agree, and conclude that an action in equitable subrogation was cognizable in the circumstances of this case.

         In 2011, the plaintiff insurer commenced a subrogation action against the defendant tenants. The plaintiff claimed that it had indemnified the owner of the premises for property damage caused by the tenants and it sought to recover from them the amounts which it had paid on behalf of the insured owner, John Mihalec, to repair the damage. The action sounded in breach of contract and negligence. The defendants filed a motion to strike the complaint. The motion challenged the legal sufficiency of the complaint; specifically, it alleged that the plaintiff had failed to allege an express agreement between the landlord and tenant recognizing that an insurance company may have the ability to bring a subrogation action. In a September 13, 2011 memorandum of decision, the court, Hon. Taggart D. Adams, judge trial referee, denied the defendants' motion to strike, reasoning that ‘‘the lease executed by the defendants put them on notice that they would be liable for more than just the rent and security deposit under certain circumstances, '' and that the ‘‘default rule, '' as expressed in DiLullo, did not bar the action.

         The matter was referred to an attorney trial referee for fact finding pursuant to General Statutes § 52-434 (a) (4) and Practice Book § 19-2A. Following a trial, the referee issued a report dated January 24, 2014. The referee found as follows. On April 29, 2009, the defendants entered into a lease with Mihalec, the owner of residential premises at 7 Hervey Street in Greenwich. The defendants left the premises on December 21 or 22, 2009, and returned on January 5, 2010. During their absence, a radiator burst, causing extensive water damage to the premises. Mihalec filed a claim with his property insurer, the plaintiff, which expended sums to repair the premises. The referee declined to consider the claims of breach of contract and negligence. Rather, the report concluded that the default rule expressed in DiLullo v. Joseph, supra, 259 Conn. 847, mandated that, in order for the plaintiff to have the ability to maintain an action in equitable subrogation, the lease agreement between the defendants and Mihalec must have contained a provision expressly authorizing subrogation. Because the lease agreement containednosuch express subrogation provision, the plaintiff could not prevail on its claims against the defendants.

         The court, Povodator, J., suo motu, moved to accept the referee's report. The plaintiff filed an objection. In an October 8, 2014 memorandum of decision, the court declined to accept the report. The court noted that the function of an attorney trial referee is to find facts and that it is the responsibility of the Superior Court to draw legal conclusions from the facts found. The court concluded that the provisions of the lease were sufficient to avoid the default rule in DiLullo, and that the defendants lawfully could be liable for losses resulting from their negligence or breach of contract. The court remanded the case to the referee for further factual findings regarding liability and damages.

         The referee found the following relevant facts in a second report. The parties entered into a lease agreement for the premises, which contained provisions obligating the tenants to pay for heating fuel, to use the heating and cooling systems in a prudent manner, not to negligently or wilfully damage the premises, and to pay all damages arising from a broken promise under the lease.

         As noted previously, the defendants left the premises vacant for approximately two weeksinDecember, 2009, and January, 2010. The defendants failed to provide for a sufficient amount of oil for the furnace to operate during their absence. During the defendant's absence from the premises, the furnace stopped functioning. For a period of time, there was no heat in the premises, and a radiator on the second floor froze. The radiator burst, causing extensive water damage to the lower floor of the premises. Mihalec filed a claim with the plaintiff, which expended sums to repair the premises. The referee recommended that judgment enter in favor of the plaintiff in the amount of $61, 302.70.

         The court moved, suo motu, to accept the second report. Neither party filed an objection. In a February 5, 2015 memorandum of decision, the court adopted the procedural and factual summary contained in the first report and concluded that the findings in the second report as to breach of lease obligations and negligence led it to conclude that judgment should enter in favor of the plaintiff as ...


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