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Pettengill v. Fireman's Fund Insurance Co.

United States District Court, D. Connecticut

July 18, 2016

ANITA PETTENGILL, Plaintiff,
v.
FIREMAN'S FUND INSURANCE, COMPANY, Defendant.

          RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          WARREN W. EGINTON SENIOR U.S. DISTRICT JUDGE

         Plaintiff 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.

         Background

         Defendant 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).

         Plaintiff's 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, respectively.

         In June 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, 500.

         In October 2012, defendant denied plaintiffs claim on the grounds of fraud, misrepresentation and concealment. Thereafter, plaintiff filed this action.

         During 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.

         According 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.

         Discussion

         A 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).

         The 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.

         Set Off

         Fireman's 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 ...


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