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PEERLESS INSURANCE COMPANY V. ALARM SECURITY PROTECTION CO. APRIL 7, 2011., MARTIN, J.

Superior Court of Connecticut, Judicial District of New London.


PEERLESS INSURANCE COMPANY v. ALARM SECURITY PROTECTION CO.


April 7, 2011.


MARTIN, J.

FACTS
1 On September 9, 2009, the plaintiff, Peerless Insurance Company, filed a two-count revised
complaint against the defendants, Alarm Security Protection Company (ASP) and U.S.A. Central Station Alarm Corporation (USA Alarm), sounding in negligence and alleging the following facts. The plaintiff provided property insurance to Union Plaza Associates, LLP (Union Plaza). Union Plaza owned a commercial building in New London, Connecticut where the law firm of Suisman, Shapiro, Wool, Brennan, Gray & Greenburg, P.C. (Suisman) rented the second and third floors pursuant to a lease. Prior to January 27, 2007, Suisman had contracted with the defendant ASP to install in their offices an alarm monitoring system including a temperature monitoring component designed to activate the alarm in event of a heat loss in the building. Suisman also contracted with USA Alarm to monitor the alarm system and notify the appropriate representatives in the event of an alarm signal. On January 27, 2007, a water pipe on the fourth floor of the premises broke, causing a water leak. The alarm system activated and signaled ASP and/or USA Alarm, but neither defendant notified anyone of the alarm, which allowed water to continue to leak throughout the premises until the next day. As a result of the burst pipe and subsequent water damage, the plaintiff was obligated to reimburse Union Plaza, its insured and the owner of the premises, for its losses. The plaintiff is subrogated to the rights of its insured and seeks damages from the defendants for negligently failing to install an alarm that would ensure prompt and adequate notification of emergency services and for failing to notify anyone of the alarm within a proper and reasonable length of time to prevent further damage to the premises. [The defendants filed a motion to implead Suisman and to serve a third-party complaint against it, which was granted on October 19, 2009.]

On October 1, 2010, the defendants filed a motion for summary judgment and a memorandum of law in support of their motion. The plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment on October 25, 2010, and the defendants filed a reply memorandum on November 17, 2010.

DISCUSSION
“ Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard.” Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008). “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010). “ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.” United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
In the present case, the defendants argue they are entitled to summary judgment in their favor on the ground that the plaintiff stands in the shoes of its insured and is subject to all contractual defenses that the defendants would have to the insured's claims, including an anti-subrogation clause, a time limitations clause and a liquidated damages clause that were in the alarm contracts. Alternatively, the defendants argue that they owed the plaintiff no duty of care and that it was the plaintiff's insured who was negligent, not the defendants, in causing the pipes to freeze and burst. In response, the plaintiff counters that neither it nor its insured is a party to the alarm contracts with the defendants and thus none of the contractual defenses apply to this action. Further, the plaintiff argues that the defendants do owe a duty to its insured, the property owner, and that at a minimum, a question of fact exists as to whether it was foreseeable that low temperatures in the building in January, if not promptly responded to, could cause damage to the entire building and not just to the two floors where the alarm system was installed. Finally, the plaintiff argues that there is a material factual dispute concerning the cause of the loss that would make summary disposition of this case inappropriate. As a preliminary matter, the defendants contend that the plaintiff has admitted that representatives of Union Plaza, its insured, entered into the alarm contracts with the defendants by virtue of the fact that the plaintiff failed to respond to a request for admission within thirty days. The plaintiff filed an answer denying that admission, along with a motion for extension of time to respond and a motion to amend its response, four days beyond the thirtyday time limit in Practice Book § 13–23. “[A] failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted.” (Internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).

The court has the authority, however, to exercise its discretion to permit withdrawal or amendment of the admission “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the judicial authority that withdrawal or amendment will prejudice such party in maintaining his or her action or defense on the merits.” Practice Book § 13–24. Amending the admission will certainly help promote the presentation of the merits of this action, and the defendants have not argued or shown that they would be prejudiced if such an amendment were allowed. Although outside the scope of this decision, the court will separately grant the plaintiff's motion to amend its answers to the defendants' request for admissions. As previously discussed, the burden is on the defendants, as the moving parties, to show there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. “To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. The evidence before the court in the present case reveals that the “truth” is anything but clear and that there exist genuine factual disputes in the plaintiff's negligence claim.


The evidence reveals that the contracts providing for the defendants' services in the subject premises were entered into by Suisman, a separate legal entity from Union Plaza, the plaintiff's insured. The defendants contend that the principals of Union Plaza are also principals of Suisman and that the former represented to its insurer that it had procured alarm protection for its building when applying for insurance coverage. Essentially, the defendants argue that the plaintiff's insured took advantage of the benefits of the alarm contracts by using them to obtain a lower insurance premium and accordingly should be bound to the rest of the contracts' obligations and responsibilities. As the moving party, however, the defendants have not established that a principal entering into a contract on behalf of one business entity binds another entity of which the principal is also a member. All of the relevant contracts presented before the court are signed on behalf of Suisman. Union Plaza is not listed in any of the contracts with the defendants and nowhere in those documents is there a signature on behalf of Union Plaza. Thus the defendants have not shown that they are entitled to the contractual defenses in the alarm contracts that include an antisubrogation clause, a time-bar on actions arising from contractual disputes and a liquidated damages clause.


Alternatively, the defendants claim that they are entitled to summary judgment in their favor on the ground that they owe no duty to the plaintiff and thus cannot be held liable for negligence. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 (2006). “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result ... “A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.” (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593–94, 945 A.2d 388 (2008).


The evidence reveals there is a genuine issue of material fact with respect to both the cause and foreseeability of the loss. There is evidence that the defendant USA Alarm placed several calls to the subject premises when the low temperature alarm was triggered but that no calls were placed to police or fire authorities. There is also a contested factual issue as to whether it was foreseeable that low temperatures, if not promptly responded to by the defendants, could lead to damage that would affect
other areas in the subject premises beyond the two floors occupied by Suisman. Furthermore, neither the plaintiff nor the defendants have been able to cite any Connecticut authority concerning whether an alarm company owes a duty of care to third parties. Both sides have cited to cases in other jurisdictions that have decided whether such a duty exists. Absent any controlling precedent, however, this court must conclude that the defendants have not met their burden of establishing they are entitled to a judgment as a matter of law. Coupled with the factual disputes regarding the cause and foreseeability of the loss, this renders summary judgment particularly inappropriate.

CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is hereby denied.