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Amica Mutual Insurance Co. v. Muldowney

Supreme Court of Connecticut

April 10, 2018

AMICA MUTUAL INSURANCE COMPANY
v.
ANDREW MULDOWNEY ET AL.

          Argued November 15, 2017

         Procedural History

         Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Taggart D. Adams, judge trial referee, denied the defendants' motion to strike; thereafter, the case was referred to Ronald D. Japha, attorney trial referee, who filed a report recommending judgment for the defendants; subsequently, the court, Hon. Taggart D. Adams, judge trial referee, remanded the case to Ronald D. Japha, attorney trial referee, who filed a second report recommending judgment for the plaintiff; thereafter, the court, Povodator, J., rendered judgment for the plaintiff in accordance with the second report, from which the defendants appealed to the Appellate Court, Beach, Keller and West, Js., which affirmed the judgment of the trial court, and the defendants, on the granting of certification, appealed to this court. Affirmed.

          Daniel P. Scholfield, with whom, on the brief, was Benjamin D. Gettinger, for the appellants (defendants).

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

          Palmer, Robinson, D'Auria, Mullins and Kahn, Js.

          OPINION

          D'AURIA, J.

         This appeal concerns the right of a landlord's insurer to use the doctrine of equitable subrogation to bring an action against a tenant for damage the tenant caused to the rented property. In DiLullo v. Joseph, 259 Conn. 847, 851, 854, 792 A.2d 819 (2002), this court announced a‘‘default rule, '' pursuant to which a landlord's insurer has no right of subrogation unless the landlord and tenant have made a ‘‘specific agreement'' otherwise, ‘‘leaving it to the specific agreement of the parties if they wish a different rule to apply to their, or their insurers', relationship.'' In the present case, the parties dispute what sort of ‘‘specific agreement'' is required to overcome DiLullo's presumption against subrogation. Id., 854. Specifically, they disagree whether the lease must expressly state that a landlord's insurer has a right of subrogation against the tenant, or whether it is sufficient for the lease to notify the tenant explicitly that he is responsible for any damage to the leased property and to allocate to the tenant the responsibility to provide liability and property damage insurance. The trial court and the Appellate Court both concluded that it was sufficient for the lease to allocate to the tenant responsibility for damage caused by the tenant and to require the tenant to obtain insurance, even without a specific agreement authorizing subrogation. We agree with those courts, and we therefore affirm the judgment of the Appellate Court.

         The facts as found by the attorney trial referee, and accepted by the trial court, are as follows.[1] The defendants, Andrew Muldowney and Kalynn Tupa, entered into a lease with John H. Mihalec (landlord) for use of a single-family dwelling at 7 Hervey Street in Greenwich. During the term of the lease, the defendants left the leased property for an extended winter vacation lasting about two weeks. The defendants were responsible for ordering and paying for fuel for the dwelling's oil fueled heating system but had not ensured that the heating system had enough oil to operate for the duration of their absence. While they were away, the oil level dropped too low for the furnace to draw oil, and the heating system stopped working. As a result, the temperature in the dwelling fell, and pipes inside the dwelling froze and burst, causing damage.

         The defendants had agreed in the lease to ‘‘pay for heating fuel, '' to ‘‘use all . . . heating . . . systems in the [d]welling in a prudent manner, '' and to not ‘‘[wilfully] or negligently destroy, deface, damage, impair or remove any part of the [d]welling.'' The defendants also agreed they would ‘‘not allow the [d]welling to remain vacant for more than fourteen . . . consecutive days without notifying [the landlord] in advance of the planned vacancy.'' The lease required that, ‘‘[d]uring any such vacancy, [the defendants] agree to maintain the temperature in the [d]welling at not less than [sixty] degrees.''

         As for liability for any damage, the defendants agreed to pay the landlord ‘‘all lost rent and other damages or costs'' incurred by the landlord if the defendants breached any of their promises in the lease. The lease also required the defendants to ‘‘hold [the landlord] harmless from any loss or claim arising out of or in connection with [the defendants'] use and occupancy of the [leased] property, including court costs and reasonable attorney's fees.'' Lastly, the defendants agreed ‘‘to provide and pay for personal liability insurance for [the defendants'] and [landlord's] mutual benefit in an amount of not less than $1 [million] for bodily injury and property damage in or about the [d]welling'' and to ‘‘provide [the landlord] with proof of such insurance.''

         The repairs for the damage to the dwelling caused by the burst pipes cost $50, 960.02. The landlord also claimed $10, 342.68 in lost rent. Notwithstanding the defendants' obligation under the lease to secure insurance, the landlord also had secured an insurance policy for the dwelling from the plaintiff, Amica Mutual Insurance Company, covering certain occurrences, including losses for water damage. The landlord filed a claim under the policy with the plaintiff, which paid the landlord for the damage. The terms of the insurance policy between the plaintiff and the landlord obligated the landlord to assign to the plaintiff any rights of recovery the landlord may have against any person for any covered loss.

         Pursuant to the policy, the plaintiff brought this subrogation action against the defendants to recover sums the plaintiff had paid the landlord due to the defendants' actions or omissions. The complaint alleged breach of contract and negligence by the defendants.

         The defendants moved to strike the plaintiff's complaint, arguing that the plaintiff had no right of subrogation to the landlord's claims against them. The defendants relied in part on this court's decision in DiLullo v. Joseph, supra, 259 Conn. 847. They contended that DiLullo adopted a default rule that a landlord's insurer has no right of subrogation against a tenant for damage to leased property unless the landlord and tenant had reached a ‘‘specific agreement'' otherwise. Id., ...


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