November 15, 2017
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.
P. Scholfield, with whom, on the brief, was Benjamin D.
Gettinger, for the appellants (defendants).
M. Carnelli, with whom was Susan L. Miller, for the appellee
Palmer, Robinson, D'Auria, Mullins and Kahn, Js.
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.
facts as found by the attorney trial referee, and accepted by
the trial court, are as follows. 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.
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.''
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.''
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
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
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., ...