R & P REALTY COMPANY et al.
v.
PEERLESS INDEMNITY INSURANCE COMPANY
Argued
March 14, 2019
Appeal
from the Superior Court, Judicial District of New Haven,
Pittman, J., entered judgment in favor of insurer. Insureds
appealed.
Richard
F. Connors, North Haven, for the appellants (plaintiffs).
Heather J. Adams, for the appellee (defendant).
Lavine,
Moll and Bishop, Js.
OPINION
PER
CURIAM.
[193
Conn.App. 375] The plaintiffs, R & P Realty Company and
Ungers Floor Covering, Inc., appeal from the judgment of the
trial court, following a court trial, rendered in favor of
the defendant, Peerless Indemnity Insurance Company, on count
one of their operative complaint [193 Conn.App. 376] sounding
in breach of contract. On appeal, the plaintiffs claim that
the trial court erred in concluding
Page 430
that the defendant did not breach the parties casualty
insurance policy by declining to pay for the increased costs
of demolition resulting from the presence of asbestos and
lead within the insured property, which the plaintiffs
discovered after the defendant had remitted an initial
insurance payout to which the parties agreed. We conclude
that the record is inadequate for our review, and,
accordingly, we decline to review the plaintiffs claim and,
thus, affirm the judgment of the trial court.
The
following facts, as found by the trial court in its
memorandum of decision or as undisputed in the record, and
procedural history are necessary for our discussion. At all
relevant times, R & P Realty Company owned real property
located at 915 Grand Avenue in New Haven, which it leased to
Ungers Floor Covering, Inc., a floor covering business in an
older brick building situated on the property. In February,
2011, the building was damaged by an overload of snow and ice
on its roof. At that time, the defendant provided a policy of
casualty insurance (policy) to the plaintiffs. Pursuant to
the policy, the plaintiffs filed an insurance claim for the
damage to the building caused by the snow and ice overload.
The defendant accepted that the roof had been damaged by an
event covered by the policy and agreed with the plaintiffs
that replacing the roof and its supporting structures was
necessary. On October 17, 2012, after the parties had engaged
in an adjustment process, the defendant remitted a payment to
the plaintiffs in the amount of $167,006.03, upon which the
parties had settled. The payment included the cost for
removing and rebuilding the roof with new supporting
structures, reconfiguring certain heating and ventilation
equipment and electric routes, and repairing or renovating
certain interior areas and finishes. Of the $167,006.03 paid
by the defendant to the plaintiffs, [193 Conn.App. 377]
$26,738.83 was allocated to the cost of demolishing the
existing roof.[1]
In
2013, the plaintiffs began planning to reconstruct the
damaged roof. As part of the rebuilding process, they
retained a company to test for the presence of asbestos and
lead in the components to be demolished during the
reconstruction of the roof. The company found that asbestos
containing material was present in at least two small areas
of the roofing membrane, and that lead based paint was
detected on an old metal ceiling located underneath a hanging
ceiling in the building. During the adjustment process, the
parties had contemplated the demolition of those components,
but they never discussed the possible presence of asbestos or
lead therein. The demolition of materials containing asbestos
and lead is subject to Occupational Safety and Health
Administration regulations and state laws, which require
workers involved in such demolition to have special training,
clothing, and apparatus,
Page 431
and that there be a special means of handling and removing
the debris created by such demolition. According to a revised
estimate obtained by the plaintiffs, the cost of demolishing
and removing all of the old roofing material in a safe and
safety compliant manner was $90,139.26. The defendant refused
to pay the additional demolition costs.
[193
Conn.App. 378] On February 14, 2013, the plaintiffs commenced
the present action against the defendant. In count one of the
operative two count complaint filed on September 3, 2013, the
plaintiffs alleged that the defendant had breached the policy
by failing to fully compensate them for the loss they
sustained resulting from the damage to the building caused by
the snow and ice overload.[2] More specifically, they contended
that, in contravention of the policy, the defendant refused
to cover the increased demolition costs resulting from the
presence of asbestos and lead in the building.[3] On April 22,
2014, ...