Date February 9, 2016
from Superior Court, judicial district of Stamford-Norwalk,
Hon. Taggart D. Adams [motion to s trike]; Povodator, J.
P. Scholfield, with whom, on the brief, were Benjamin D.
Gettinger and Rosalie D. Louis, for the appellants
M. Carnelli, with whom was Susan L. Miller, for the appellee
Keller and West, Js.
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
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.
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
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.
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.
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.
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.
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 ...