Palkimas v. State Farm Fire & Casualty Co.

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RICHARD PALKIMAS v. STATE FARM FIRE AND
CASUALTY COMPANY
(AC 35462)
DiPentima, C. J., and Keller and West, Js.
Argued February 3—officially released June 3, 2014

(Appeal from Superior Court, judicial district of
Fairfield, Sommer, J.)
John R. Williams, for the appellant (plaintiff).
Daniel J. Krisch, with whom, on the brief, were Dan-
iel P. Scapellati and Susan M. Kirkeby, for the appel-
lee (defendant).
Opinion

WEST, J. This appeal arises from a breach of contract
claim filed by the plaintiff, Richard Palkimas, against
the defendant, State Farm Fire & Casualty Company, for
the defendant’s failure to provide coverage for damage
caused to the plaintiff’s home by a ruptured sanitary
pipe. The court rendered summary judgment in favor
of the defendant on the ground that the plaintiff failed
to submit a proof of loss as required under the insurance
contract. In this appeal, the plaintiff claims that the
court improperly rendered summary judgment in favor
of the defendant because the defendant failed to prove
that it was prejudiced by the plaintiff’s failure to submit
a proof of loss. We are not persuaded and, therefore,
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. At the time of the
incident in question, the plaintiff had a homeowners
insurance policy issued by the defendant. In September,
2006, the plaintiff suffered damage to his property
‘‘when workers negligently used a toilet that had been
blocked off resulting in a buildup of sewage, and the
breaking and rupturing of a sanitary pipe, as well as
the spreading of sewage and fecal matter throughout
the home.’’ In January, 2007, while attempting to repair
the damaged sanitary pipe, the plaintiff discovered that
‘‘freezing temperatures caused substantial damage to
[his] home, including fracturing of the plaster walls and
building structure.’’
The plaintiff notified the defendant of the two claimed
losses, but never filed a proof of loss for those claims.
With respect to the claimed loss from September, 2006,
the plaintiff hired a public adjustor, Allen Sabel, to
negotiate with the defendant on his behalf. The defen-
dant ultimately denied coverage for both claimed losses
and damages, citing the plaintiff’s failure to submit a
proof of loss as required under the policy.1 In a two
count complaint dated January 23, 2009, the plaintiff
alleged that the defendant breached the insurance pol-
icy by denying coverage for both claimed losses and
damages.
The plaintiff also brought an action against Sabel,
Sabel Adjustors, LLC, and Sabel & Associates, Inc.
(Sabel defendants), alleging failure to negotiate with the
insurance companies—the defendant and Nationwide
Insurance Company—on the plaintiff’s behalf. He
brought another action against Nationwide Insurance
Company and Oscar Fernandez, alleging that Fernandez
and his workers negligently caused the damage to the
plaintiff’s home. The court, Radcliffe, J., granted the
Sabel defendants’ motion to consolidate the three
actions.
On October 10, 2012, the defendant filed a motion
for summary judgment claiming that it was entitled
to judgment as a matter of law because the plaintiff
breached a condition precedent of coverage by failing
to submit a proof of loss. The Sabel defendants filed a
memorandum of law in opposition to the defendant’s
motion for summary judgment, claiming that summary
judgment was not warranted because there remained
a genuine issue of material fact as to whether the defen-
dant was prejudiced by the plaintiff’s failure to submit
a proof of loss. The plaintiff subsequently filed a supple-
mentary brief in opposition to the defendant’s motion
for summary judgment fully adopting the arguments set
forth in the Sabel defendants’ memorandum of law in
opposition to the defendant’s motion for summary judg-
ment. The defendant submitted a supplemental memo-
randum of law in support of its motion for summary
judgment claiming that it was not required to prove
prejudice because the plaintiff never submitted a proof
of loss.
On January 18, 2013, the court, Sommer, J., issued
a memorandum of decision granting the defendant’s
motion for summary judgment. In reaching its decision,
the court determined that ‘‘an insured must file a proof
of loss prior to making a claim against his insurance
company and prior to bringing suit if the insurance
company denies the claim, but if the insured belatedly
submits a proof of loss and the policy does not specifi-
cally state that doing so is grounds for denial, the insurer
must prove that the late submission caused some preju-
dice.’’ The court found that this is not a case in which
the plaintiff belatedly submitted a proof of loss; rather,
it is a case in which the plaintiff never submitted a
proof of loss, and, thus, the defendant’s burden to prove
prejudice never arose. The court concluded, therefore,
that the plaintiff failed to satisfy a condition precedent
of the insurance policy, and, accordingly, granted the
defendant’s motion for summary judgment. This
appeal followed.
The plaintiff claims that the court improperly granted
the defendant’s motion for summary judgment because
‘‘[a]n insurer has the burden of proving prejudice when
it refuses to compensate for a covered loss on the
ground that the insured failed to submit a sworn proof
of loss statement.’’ He contends, therefore, that because
there remains a genuine issue of material fact as to
whether the defendant was prejudiced, summary judg-
ment was not warranted.
‘‘Our standard of review of a trial court’s decision to
grant a motion for summary judgment is well estab-
lished. . . . The judgment sought 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. . . . A material fact is a
fact that will make a difference in the result of the case.
. . . The facts at issue are those alleged in the plead-
ings. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
as to all material facts, which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law. . . . [T]he party adverse to such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The test is
whether a party would be entitled to a directed verdict
on the same facts. . . . Finally, [o]ur review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Citation omitted; internal quota-
tion marks omitted.) Recall Total Information Manage-
ment, Inc. v. Federal Ins. Co., 147 Conn. App. 450,
456–57, 83 A.3d 664, cert. granted in part on other
grounds, 311 Conn. 925, 86 A.3d 469 (2014).
Our decision turns on the distinction between a
delayed filing of a proof of loss and a failure to file a
proof of loss. The plaintiff does not dispute the fact
that he failed to submit to the defendant a proof of loss
as required under the insurance policy. This concession
is fatal to his claim on appeal, as we cannot find any
case law from our appellate courts that requires an
insurer to prove prejudice following an insured’s failure
to submit a proof of loss under an insurance policy.
The plaintiff relies on three cases from our Supreme
Court in support of his claim; however, those cases are
readily distinguishable from the case at hand insofar
as they pertain to a delayed filing of notice of a claim
or a proof of loss, and not the failure to file a proof of
loss. See Arrowood Indemnity Co. v. King, 304 Conn.
179, 39 A.3d 712 (2012) (discussing delayed filing of
notice of claim); Aetna Casualty & Surety Co. v. Mur-
phy, 206 Conn. 409, 538 A.2d 219 (1988) (same), over-
ruled in part on other grounds by Arrowood Indemnity
Co. v. King, supra, 179; Elberton Cotton Mills, Inc. v.
Indemnity Ins. Co., 108 Conn. 707, 145 A. 33 (1929)
(discussing delayed filing of proof of loss).
In light of the plaintiff’s failure to provide any persua-
sive support for his claim on appeal, we conclude that
the court properly granted the defendant’s motion for
summary judgment.2
The judgment is affirmed.
In this opinion the other judges concurred.
1
The proof of loss provision set forth in the insurance policy provides
as follows: ‘‘After a loss to which this insurance may apply, you shall see
that the following duties are performed . . . e. submit to us, within 60
days after the loss, your signed, sworn proof of loss which sets forth, to
the best of your knowledge and belief: (1) the time and cause of loss;
(2) interest of the insured and all others in the property involved and all
encumbrances on the property; (3) other insurance which may cover the
loss; (4) changes in title or occupancy of the property during the term of
this policy; (5) specifications of any damaged building and detailed estimates
for repair of the damage; (6) an inventory of damaged or stolen personal
property . . . (7) receipts for additional living expenses incurred and
records supporting the fair rental value loss; and (8) evidence or affidavit
supporting a claim under the Credit Card, Bank Fund Transfer Card, Forgery
and Conterfeit Money coverage, stating the amount and cause of loss.’’
(Emphasis omitted.)
2
We note that Aetna Casualty & Surety Co. and Arrowood Indemnity
Co. are further distinguishable from the present case because they pertain
to the filing of notice of a claim under an insurance policy, whereas the
present case pertains to the filing of a proof of loss under an insurance policy.