United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY
W. EGINTON SENIOR U.S. DISTRICT JUDGE
Anita Pettengill has brought this action against defendant
Fireman's Fund Insurance Company ("Fireman's
Fund"). Plaintiff alleged breach of contract, negligent
infliction of emotional distress, violation of the
Connecticut Unfair Trade Practices Act ("CUTPA")
and Connecticut Unfair Insurance Practices Act
("CUIPA"). After this Court dismissed
plaintiff's claims of negligent infliction of emotional
distress and CUTPA/CUIPA violation, plaintiff amended her
complaint to assert the remaining breach of insurance
contract. In its answer, defendant alleged several
affirmative defenses including, inter alia, fraud.
Defendant also counterclaimed that plaintiff is liable for
fraud and breach of contract.
has submitted a statement of material facts in compliance
with the Local Rules of Civil Procedure. Plaintiff, who is
represented by counsel, has not filed a responding statement
of facts in compliance with this District's Local Rules
of Civil Procedure. The Court has culled the following
factual background from the allegations of the complaint and
the parties' evidentiary submissions on this motion for
summary judgment. Because plaintiff has failed to comply with
Local Rule of 56(a)(2), all properly supported material facts
set forth in defendants' 56(a)(1) statement are deemed
admitted. Lewis v. Cavanauqh. 2015 WL 540593, at *1
(D. Conn. 2015).
property located in Newtown, Connecticut, was insured by
Fireman's Fund with effective dates of October 22, 2010,
to October 22, 2011. The policy provided separate insurance
limits for plaintiff's (1) "dwelling" or
"primary living structure on the residence premises and
structures attached to it;" (2) "other
structures" that were "on the residence premises
set apart from the dwelling by a clear space or connected to
the dwelling by only a fence, utility line or similar
connection;" and (3) "personal property." Each
of these three separate coverages had individual coverage
limits of $1, 203, 000, $240, 600 and $842, 100,
2011, the property suffered fire damage. On November 18,
2011, plaintiff submitted a signed sworn Proof of Loss to
Fireman's Fund for fire damage to the building structures
at the property. The Proof of Loss represented that the full
replacement cost of the property at the time of the fire was
$1, 114, 093.48. Plaintiff included an estimate from
Mannarino Builders and Restoration, LLC. The estimate
represented that demolition costs would amount to $56, 000,
and that repainA/ork to the outbuildings would amount to $5,
October 2012, defendant denied plaintiffs claim on the
grounds of fraud, misrepresentation and concealment.
Thereafter, plaintiff filed this action.
the pendency of the instant action, the representatives,
successors, and assigns of Countrywide Home Loans, which held
the mortgage on plaintiff's property and is named as the
mortgagee on the relevant insurance policy, brought suit
against defendant in a separate action entitled Bank of
New Mellon v. Fireman's Fund insurance Co.,
3:13cv1015 (JBA). In that case, the plaintiffs alleged that
the mortgagee named in the policy was entitled to recovery
under the policy for fire damage to the property in which it
held a secured interest. Fireman's Fund settled that case
with a $600, 000 payment to the mortgagee in connection to
the fire damage claim. On June 4, 2015, the litigation was
dismissed with a stipulation of dismissal.
to plaintiffs damages analysis and initial disclosures
relevant to this case, plaintiff seeks to recover $1, 203,
000 for the total loss of her residence; $240, 000 for total
loss of other structures; $842, 100 for personal property
loss; and $28, 815 for house demolition costs.
motion for summary judgment will be granted where there is no
genuine issue as to any material fact and it is clear that
the moving party is entitled to judgment as a matter of law.
Celotex CorD. v. Catrett, 477 U.S. 317. 322 (1986).
"Only when reasonable minds could not differ as to the
import of the evidence is summary judgment proper."
Brvant v, Maffucci. 923 F.2d 979, 982 (2d Cir.),
cert, denied, 502 U.S. 849(1991).
burden is on the moving party to demonstrate the absence of
any material factual issue genuinely in dispute. American
International Group. Inc. v. London American International
Corp.. 664 F.2d 348, 351 (2d Cir. 1981). In determining
whether a genuine factual issue exists, the court must
resolve all ambiguities and draw all reasonable inferences
against the moving party. Anderson v. Liberty Lobby.
Infe. 477 U.S. 242, 255 (1986). If a nonmoving party has
failed to make a sufficient showing on an essential element
of lier case with respect to which she has the burden of
proof, then summary judgment is appropriate. Celotex
Corp.. 477 U.S. at 323. If the nonmoving party submits
evidence which is "merely colorable, " legally
sufficient opposition to the motion for summary judgment is
not met. Anderson. 477 U.S. at 249.
Fund argues that it is entitled to summary judgment on its
affirmative defense for a set off of the $600, 000 paid in to
the mortgagee in ...