McCants v. State Farm Fire & Casualty Co. ( 2015 )

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TERRAINE MCCANTS v. STATE FARM FIRE AND
CASUALTY COMPANY
(AC 36623)
Gruendel, Beach and Bear, Js.
Argued January 7—officially released June 2, 2015
(Appeal from Superior Court, judicial district of
Hartford, Vacchelli, J.)
Tracy L. Montalbano, with whom was Daniel P. Sca-
pellati, for the appellant (defendant).
Brian M. Silver, with whom was John H. Hagel, Jr.,
for the appellee (plaintiff).
Opinion
BEACH, J. A fire damaged premises owned by the
plaintiff, Terraine McCants, and insured by the defen-
dant, State Farm Fire & Casualty Company. The plaintiff
did not live at the premises full-time, and her interview
with the defendant’s claims adjuster, together with
other information, led the insurer to decline payment.
The principal issues in this appeal concern the trial
court’s conclusions regarding residency requirements
and the materiality of a misrepresentation made in
the interview.
The defendant appeals from the judgment of the trial
court rendered in favor of the plaintiff on her claim
that the defendant breached the parties’ contract of
insurance. The defendant claims that the court erred
in rejecting its special defenses regarding residency and
misrepresentation. It argues that the court erred in (1)
finding that the plaintiff resided at the insured premises
at the time of the fire and (2) concluding that the plain-
tiff made a misrepresentation to the defendant during
its investigation of her claim, but that the misrepresen-
tation was not material. We affirm the judgment of the
trial court.
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. At all
relevant times, the plaintiff was the sole owner of 197
Bond Street, Hartford (Bond Street), a three-family
home. The defendant issued a homeowner’s insurance
policy (policy) to the plaintiff; the policy was effective
from November 29, 2008 to November 29, 2009. The
plaintiff paid all premiums. On April 19, 2009, while the
policy was in effect, a fire occurred at Bond Street. The
damage from the fire was extensive and rendered the
home uninhabitable.
On the day of the fire, the plaintiff was approached
by an independent insurance adjuster who offered to
assist her in documenting the damage and filing a claim.
The plaintiff signed a contract with the independent
adjuster. The defendant assigned its investigation to
Robert G. Stoddard, Jr. Stoddard interviewed a number
of people, including Mary Perry, the plaintiff’s mother,
who lived on the first floor of Bond Street at the time
of the fire; Kyanna Brown, the plaintiff’s niece, who
lived on the second floor of Bond Street at the time of
the fire; and Kingzetta Rose, the plaintiff’s niece, who,
at the time of the fire, lived with her immediate family
at 107 Folly Brook Boulevard in Wethersfield (Folly
Brook).
Stoddard’s investigation revealed that the fire had
been set and that the plaintiff was not a suspect. The
investigation focused on the issue of the plaintiff’s resi-
dency at the time of the fire. In her interview with
Stoddard, the plaintiff stated that she had moved out
of Bond Street in October, 2008, and had moved into
Folly Brook, her niece’s home. She stated that she had
not slept at Bond Street since October, 2008, and did
not have any personal property there. Because the pol-
icy did not cover losses at premises other than ‘‘resi-
dence premises’’ of the insured, the defendant denied
the plaintiff’s claim.
In her operative complaint, the plaintiff alleged that
at the time of the fire on April 19, 2009, her home
was insured by the defendant under the policy and
the defendant breached that contract by failing to pay
insurance proceeds to her following the fire. By way
of special defenses, the defendant asserted that the
plaintiff’s claim was barred because she did not reside
at the insured location at the time of the loss and she
had acted fraudulently. The defendant relied on several
provisions of the policy.
At the trial to the court, the plaintiff testified that
she lived at Bond Street at the time of the fire. She
testified that in October, 2008, she was unemployed
and volunteered to help Rose with child care by staying
at Folly Brook three or four nights a week. When not
babysitting at Folly Brook, she stayed at Bond Street.
In its memorandum of decision, the court found that
the defendant had not proved its first special defense
contesting the plaintiff’s residency because, at time of
the fire, she resided at the Bond Street premises. The
court also found that the defendant had not proven
its special defense of concealment or fraud. The court
rendered judgment in favor of the plaintiff as to her
breach of contract claim, and awarded the plaintiff
$412,389.30 in damages. This appeal followed.
I
The defendant claims that the court erred in finding
that the plaintiff resided at Bond Street at the time of
the fire. We disagree.
The policy unambiguously provided coverage for
Bond Street, but only if it was the plaintiff’s residence
premises. The section of the policy entitled: ‘‘Section
I–Coverages’’ provided in relevant part: ‘‘We cover the
dwelling used principally as a private residence on the
resident premises shown in the Declarations. Dwelling
includes: a. structures attached to the dwelling; b. mate-
rials and supplies located on or adjacent to the resident
premises for use in the construction, alteration or repair
of the dwelling or other structures on the resident prem-
ises; c. foundation, floor slab and footings supporting
the dwelling; and d. wall-to-wall carpeting attached to
the dwelling.’’ The declarations page listed the location
of the residence premises as the ‘‘Same as the Insured’s
Address,’’ which appeared on the front page of the pol-
icy as 197 Bond Street, Hartford. Under the section of
the policy entitled ‘‘Definitions,’’ ‘‘insured location’’ was
defined in relevant part as ‘‘the residence premises.’’
‘‘[R]esidence premises,’’ in turn, meant ‘‘the one, two,
three or four-family dwelling, other structures and
grounds; or . . . that part of any other building; where
you reside and which is shown in the Declarations.’’
The issue to be resolved by the court, then, was
whether the plaintiff ‘‘resided’’ at the premises at the
time of the fire. ‘‘[A]n insurance policy is a contract
that is construed to effectuate the intent of the parties
as expressed by their words and purposes. . . .
[U]nambiguous terms are to be given their plain and
ordinary meaning.’’ (Internal quotation marks omitted.)
Travelers Casualty & Surety Co. of America v. Nether-
lands Ins. Co., 312 Conn. 714, 740, 95 A.3d 1031 (2014).
‘‘[T]emporary absence generally does not affect the
insurance contract, for the terms ‘occupied as a resi-
dence’ and ‘occupied’ do not require uninterrupted, con-
tinuous occupation.’’ 6A S. Plitt et al., Couch on
Insurance (3d Ed. 2005) § 94:71, p. 94-84. ‘‘Generally,
establishing whether a person is a ‘resident’ of a house-
hold for insurance purposes requires a showing of
something more than temporary or physical presence
and requires at least some degree of permanence or
continuity and intention to remain.’’ 9A S. Plitt et al.,
Couch on Insurance (3d Ed. Rev. 2006) § 128:7, p. 128-
16. A person may have more than one residence. See
Argent Mortgage Co. v. Huertas, 288 Conn. 568, 578,
953 A.2d 868 (2008). A person’s residence, then, is a
place where the person intends to remain with some
sense of permanency, but continuous presence is not
required.
In the present case, the trial court embarked on a
detailed factual inquiry. ‘‘[A] trial court’s resolution of
factual disputes that underlie coverage issues is review-
able on appeal subject to the clearly erroneous stan-
dard. . . . Such a finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [A] finding is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Citations omitted;
internal quotation marks omitted.) National Grange
Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 90, 961
A.2d 387 (2009).
‘‘The burden of proving an exclusion to a risk other-
wise generally insured against is on the insurer.’’1
Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5
Conn. App. 579, 585, 501 A.2d 1214 (1985), cert. denied,
198 Conn. 803, 503 A.2d 172 (1986); see also O’Brien
v. John Hancock Mutual Life Ins. Co., 143 Conn. 25,
29, 119 A.2d 329 (1955) (same); Wojcik v. Metropolitan
Life Ins. Co., 124 Conn. 532, 534, 1 A.2d 131 (1938)
(same). Because the court affirmatively found that
Bond Street was the plaintiff’s residence premises
within the meaning of the policy, the technical alloca-
tion of production and persuasion burdens is not at
issue on appeal.
The trial court characterized the plaintiff’s testimony
regarding residence and made factual findings as fol-
lows. ‘‘[The plaintiff] testified that she lived, on and off,
at Bond Street since she purchased it in 1995 due to
various life events. Nevertheless she insists that it was
her permanent home, her share of the ‘American dream’
of home ownership, and she has always returned to
it. She carried two mortgages on the house and was
responsible for its maintenance, repair and tax obliga-
tions, and she rented the units to family members when
space was available. Over the years, she arranged for
repairs or replacement of the roof, siding, and windows,
and she had the house painted and the heating sys-
tems converted.
‘‘At one time, she occupied the second floor; at other
times, she lived with her mother on the first floor. She
testified that she left the home in 2004 and moved to
Florida for one year, after being laid off, and later moved
to Maryland for one year, but lost a job again. She next
planned to move to North Carolina, but never did, and
the people who were helping her move took, but did
not return, her belongings. So, she returned to Bond
Street in December, 2007 or January, 2008. In October,
2008, she again found herself unemployed, so she volun-
teered to help with the child care for her niece, King-
zetta Rose, who lived in a two bedroom apartment at
107 Folly Brook Boulevard in Wethersfield, Connecticut
with her three young daughters. She testified that she
stayed with the children overnight while Kingzetta
[Rose] worked nights as a registered nurse, three or
four nights per week. She testified that she did not pay
rent to stay in Wethersfield, did not contribute to the
expenses there, and did not keep personal belongings
there. The plaintiff did not have a bedroom there, and
the only personal belongings she had at the apartment
were a change of clothes and a toothbrush. When not
watching the children in Wethersfield, she testified that
she stayed with her mother on the first floor at 197
Bond Street. There, she had a bedroom with a bed, and
she kept her clothes on the bed. She also produced
various records from various time periods showing that
bills and correspondence were mailed to her at 197
Bond Street. However, she had few personal belongings
at Bond Street, other than clothes, and she admitted to
using the Folly Brook address on her 2006, 2007 and
2008 tax returns. In her 2008 tax return, she stated that
she did not use the Bond Street property for more than
the greater of 14 days or 10 percent of the total days
rented at fair market value. Also, in three leases for the
apartments at 197 Bond Street signed on December 1,
2008, the plaintiff signed as landlord and designated
107 Folly Brook Boulevard, Wethersfield as her address.
The court also observed that when she first signed the
contract with the independent adjuster, she gave as her
address 107 Folly Brook Boulevard. She then rescinded
the contract. She signed a new contract on April 24,
2009, this time giving her address as 197 Bond Street,
after discussing the residency issue with the indepen-
dent adjuster. Various family members of the plaintiff
testified at trial to support her on the residency issue, in
contradiction to their earlier statements. They testified
that the plaintiff only stayed overnight at Folly Brook
Boulevard to babysit for her niece’s children, and that
she resided at 197 Bond Street.
‘‘Thus, the plaintiff’s evidence concerning her resi-
dency was contradictory, confusing, suspicious and,
therefore, ordinarily not credible—until it is put in per-
spective. The court found the testimony of the witness,
Kingzetta Rose, most illuminating, when she testified
as follows: ‘I don’t look at Bond Street as just one of your
average typical residential homes. Granted, everybody
had their own primary residence, but Bond Street for
me was different. Even if you resided on the second
floor, somebody—they might go to the third floor and
stay over. Or if you’re on the first floor, you might go
up to the second floor or the third floor. Sometimes,
you know, all three floors cook, you can go to either
floor, you can have dinner. Like I said, different people
used to do hair. You could go to either floor, you can
get your hair done. The way we refer as staying over,
or, you know, living, we kind of see it as differently,
because it was a family home, but it was [the plaintiff’s]
home, regardless of whether she slept on the roof, in
the garage, outside, on the sidewalk, it was still her
house regardless of where she resided.’
‘‘In this light, the court finds it credible that the plain-
tiff shared her life with her family members at different
locations at different times, paying no attention to the
significance of her address identification or mail deliv-
ery, and displaying careless disregard for accuracy in
legal matters generally. The court attributes the prior
contradictory testimony of the plaintiff and her wit-
nesses to their lack of awareness or appreciation of the
legal distinctions in issue and the consequences. In sum,
the court is persuaded that the plaintiff always main-
tained physical, financial and emotional ties to 197 Bond
Street, and always returned to it because, relatively
speaking, it was always her only permanent home.’’
The court concluded that the plaintiff resided, within
the meaning of the policy, at Bond Street, the insured
premises, at the time of the fire. The court determined
that the policy required the insured premises to be the
‘‘residence premises’’ of the insured and defined the
term ‘‘residence premises’’ as ‘‘where you reside.’’ The
court concluded that Bond Street was the plaintiff’s
permanent home, despite the facts that she had lived
temporarily at other locations as her personal and finan-
cial circumstances required, and, at the time of the
fire, she stayed overnight for a portion of the week at
Folly Brook.
The defendant argues on appeal that the court’s fac-
tual finding that the plaintiff resided at Bond Street at
the time of the fire was clearly erroneous. It argues
that in so finding, the court disregarded: statements
made by the plaintiff shortly after the fire to the adjust-
ers and investigators that she resided at Folly Brook
and had moved out of Bond Street in October, 2008,
and had not slept at Bond Street since; interviews con-
ducted by Stoddard with Rose, Perry, and other wit-
nesses who revealed that the plaintiff did not reside at
Bond Street at the time of the fire; that the plaintiff had
rented out all three floors of Bond Street at the time
of the fire; and additional evidence such as the plaintiff’s
2008 tax returns, filed one month prior to the fire, in
which she used the Folly Brook address as her own
and averred that she had not used Bond Street for
personal purposes for more than fourteen days or 10
percent of the total days rented at fair market value.2
The defendant argues that the court’s findings that
Stoddard ‘‘understandably decided to deny the claim
due to lack of residency’’ and that the plaintiff’s testi-
mony at trial concerning her residency was ‘‘contradic-
tory, confusing, suspicious and, therefore, ordinarily
not credible’’ highlight the erroneous nature of its con-
clusion that the plaintiff resided at Bond Street at the
time of the fire. The defendant also argues that the
testimony of Rose, which the court found most persua-
sive, to the effect that the plaintiff shared her life with
her family ‘‘at different locations at different times’’ was
irrelevant to the issue of residency under the policy.
The apt inquiry, the defendant contends, is not whether
the plaintiff intended to return to Bond Street in the
future, but whether she actually resided at Bond Street
at the time of the fire. The defendant argues that the
court erred in attributing the contradictions in the plain-
tiff’s testimony to the plaintiff’s lack of awareness of
legal consequences.
Although there certainly was evidence to the con-
trary, we decline to conclude that the court’s factual
findings regarding the plaintiff’s residency were clearly
erroneous. Although her statement to Stoddard contra-
dicted her position at trial, the plaintiff attempted to
explain those statements. She testified that the inter-
view with Stoddard was ‘‘awful,’’ that she felt uncom-
fortable during the interview, and that Stoddard did not
allow her to elaborate on her version of events. The
trial testimony of the plaintiff, Rose, and residents of
Bond Street tended to show that the plaintiff did reside
at Bond Street at the time of the fire. The plaintiff
testified that at the time of the fire she resided at Bond
Street on the first floor with Perry. She stated that Rose
worked three nights a week, and on the nights that
Rose worked, she babysat Rose’s children. She testified
that she did not reside at Folly Brook, that she would
sleep on the sofa when babysitting Rose’s children, that
she did not pay rent to Rose or otherwise contribute
to the expenses at Folly Brook, and that she stored no
clothes or other personal items at Folly Brook. Rose,
who lived at Folly Brook at the time of the fire, testified
that at the time of the fire, the plaintiff was a temporary
babysitter who watched her children three nights per
week. Rose stated that at the time of the fire, she worked
twelve hour shifts three nights per week, and, on the
nights that she worked, the plaintiff would stay over
and babysit her three young children. Rose explained
that on the other nights of the week on which she did
not need the plaintiff to watch her children overnight,
the plaintiff stayed at Bond Street, which was her pri-
mary residence. Perry testified that at the time of the
fire, the plaintiff was living with her on the first floor
of Bond Street and would sleep at Bond Street on the
nights that the plaintiff was not babysitting Rose’s chil-
dren. She further testified that the babysitting arrange-
ment with Rose was temporary because at the time of
the fire Rose’s children were young enough to require
a babysitter, but that situation would change. Perry
stated that at the time of the fire, the plaintiff would
sleep at Bond Street about four nights per week and
that the plaintiff kept clothes at Bond Street and
received mail there. Deborah McCants and her daugh-
ter, Andrea Greene, who both lived on the third floor
of Bond Street at the time of the fire, testified that the
plaintiff would sleep at Bond Street on the nights that
she was not babysitting Rose’s children, that her per-
sonal property was on the first floor of Bond Street,
and that the plaintiff received mail at Bond Street.
It was within the province of the trial court to resolve
the inconsistencies between the statements given by
the plaintiff and other witnesses to Stoddard prior to
trial and their later testimony at trial. See State v. Ste-
phen J. R., 309 Conn. 586, 600, 72 A.3d 379 (2013) (within
province of trier of fact to resolve evidentiary inconsis-
tencies, and court could believe all, part or none of
testimony of any witness). The court was ‘‘free to credit
one version of events over the other, even from the
same witnesses.’’ Parker v. Slosberg, 73 Conn. App. 254,
265, 808 A.2d 351 (2002). ‘‘Where there is conflicting
evidence . . . we do not retry the facts or pass upon
the credibility of the witnesses. . . . The probative
force of conflicting evidence is for the trier to deter-
mine.’’ (Citations omitted; internal quotation marks
omitted.) Aetna Casualty & Surety Co. v. Pizza Con-
nection., Inc., 55 Conn. App. 488, 498, 740 A.2d 408(1999). ‘‘[I]t is well established that a reviewing court
is not in the position to make credibility determinations.
. . . This court does not retry the case or evaluate the
credibility of the witnesses. . . . Rather, we must defer
to the [trier of fact’s] assessment of the credibility of
the witnesses based on its firsthand observation of their
conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) Smith v. Commissioner of Correction,
121 Conn. App. 85, 92, 994 A.2d 317, cert. denied, 297
Conn. 921, 996 A.2d 1193 (2010).
The court credited the plaintiff’s testimony that she
resided at Bond Street at the time of the fire. There
was evidence before the court that her arrangement
three nights per week to babysit Rose’s children was
temporary, that she did not reside at Folly Brook, and
that she did not keep any personal belongings at Folly
Brook or contribute monetarily, through rent or other-
wise, to its maintenance. In addition, there was evi-
dence that the plaintiff maintained ties to Bond Street,
slept at Bond Street approximately four nights per week
and kept personal items there. On the basis of the fore-
going evidence, the court found that Bond Street was
the plaintiff’s only permanent home and that she resided
at Bond Street at the time of the fire.
It was not necessarily inconsistent for the court to
deem ‘‘understandable’’ the defendant’s denial of the
plaintiff’s claim based on her residency and later to
determine that the plaintiff resided at Bond Street at
the time of the fire. The defendant had information
gathered in its investigation that reasonably indicated
that the plaintiff did not reside at Bond Street, while
the testimony of the plaintiff and other witnesses at
trial suggested that the plaintiff did reside at Bond Street
at the time of the fire. At the time of the investigation,
the defendant may well have deemed its information
conclusive. It simply was within the province of the
trial court to note that a conclusion other than its own
ultimate conclusion was ‘‘understandable,’’ and thus
reasonable; the observation does not vitiate the court’s
ultimate conclusion. We conclude that the court’s fac-
tual finding that the plaintiff resided at Bond Street at
the time of the fire was not clearly erroneous.
II
The defendant next claims that the court erred in
rejecting its special defense that the plaintiff had made
a material misrepresentation to Stoddard, which voided
her coverage under the policy. We disagree.
As required by General Statutes §§ 38a-3073 and 38a-
308, the policy contained the following ‘‘Concealment
or Fraud’’ provision: ‘‘This policy is void as to you and
any other insured, if you or any other insured under
this policy has intentionally concealed or misrepre-
sented any material fact or circumstance relating to
this insurance, whether before or after a loss.’’
In its second special defense, the defendant alleged
that the plaintiff’s claim was barred by the fraud provi-
sion of the policy because the plaintiff ‘‘intentionally
concealed or misrepresented material facts related to
her ‘residence premises’ at the time of the loss.’’ Follow-
ing the fire, the defendant had requested copies of lease
agreements for the premises. At the time, the defendant
claimed, the plaintiff made a claim for lost rents. The
defendant alleged that the plaintiff violated the fraud
provision of the policy when she did not provide to the
defendant either the original leases or copies of the
original leases, but rather provided newly recreated
versions of the lease agreements without disclosing that
they were recreations.
‘‘An insurer who raises th[e] special defense [of con-
cealment or misrepresentation] must prove only that
the insured wilfully concealed or misrepresented a
material fact with the intention of deceiving the insurer.
. . . Unlike a party asserting a cause of action for com-
mon law fraud, an insurer who raises the special
defense of concealment or misrepresentation does not
have to prove that the insurer actually relied on the
concealment or misrepresentation or that the insurer
suffered injury.’’ (Citation omitted.) Rego v. Connecti-
cut Ins. Placement Facility, 219 Conn. 339, 346–47, 593
A.2d 491 (1991). It is the defendant’s burden to prove
its defense of misrepresentation. See Aetna Casualty &
Surety Co. v. Pizza Connection., Inc., supra, 55 Conn.
App. 495.; see also Souper Spud, Inc. v. Aetna Casu-
alty & Surety Co., supra, 5 Conn. App. 585.
In this case, it is not disputed that the plaintiff did
not disclose to Stoddard that the lease agreements that
she provided to the defendant were recreations of the
original leases or that her nondisclosure was a misrepre-
sentation. The issue on appeal therefore concerns the
materiality of the plaintiff’s misrepresentation. Our
standard of review in these circumstances is plenary.
See Fine v. Bellefonte Underwriters Ins. Co., 725 F.2d
179, 183 (2nd Cir. 1984).
The court concluded that the defendant’s special
defense had not been proved because it found that the
misrepresentation was not material. It found that the
record did not establish that the plaintiff had made a
claim for lost rents; rather, there was ‘‘only proof of a
possibility’’ that she might seek a claim for lost rents.
The court noted that the plaintiff testified that she gave
the defendant recreations of the leases when the defen-
dant requested copies of the leases because the leases
had been destroyed in the fire, but she did not inform
the defendant that they were recreations. The court
found that the plaintiff’s nondisclosure was a misrepre-
sentation of fact, but the misrepresentation was not
material because there was no record that the plaintiff
ever sought lost rental income.
The defendant argues that the court erred in
determining that the misrepresentation was not mate-
rial. It argues that the misrepresentation was material
at the time it was made, because evidence submitted
at trial showed that the plaintiff was making a claim
for loss of rents at the time she made the misrepresenta-
tion; her eventual abandonment of the claim was of
no consequence. The defendant contends that the trial
court’s finding that there was a ‘‘possibility’’ that the
plaintiff was going to make a claim for lost rents at the
time of the misrepresentation was sufficient to estab-
lish materiality.
‘‘[T]he materiality requirement is satisfied if the false
statement concerns a subject relevant and germane to
the insurer’s investigation as it was then proceeding.
. . . The object of the provisions in the policies of insur-
ance, requiring the assured to submit himself to an
examination under oath, to be reduced to writing, was
to enable the company to possess itself of all knowl-
edge, and all information as to other sources and means
of knowledge, in regard to the facts, material to their
rights, to enable them to decide upon their obligations,
and to protect them against false claims. It thus appears
that materiality . . . is not determined by whether or
not the false answers deal with a subject later deter-
mined to be unimportant because the fire and loss were
caused by factors other than those with which the state-
ments dealt. False sworn answers4 are material if they
might have affected the attitude and action of the
insurer. They are equally material if they may be said
to have been calculated either to discourage, mislead
or deflect the company’s investigation in any area that
might seem to the company, at that time, a relevant
or productive area to investigate.’’ (Citations omitted;
emphasis omitted.) Fine v. Bellefonte Underwriters
Ins. Co., supra, 725 F.2d 183–84.
There was evidence before the court that the plaintiff
did not, at any time, make a claim for lost rents. On
cross-examination at trial, the defendant’s counsel
asked the plaintiff: ‘‘And at one point in time . . . you
had indicated that you were making a claim for lost
rents, even though I understand that’s not—’’ to which
the plaintiff interjected: ‘‘No, I never, never was claim-
ing lost rents.’’ The defendant’s counsel then questioned
the plaintiff regarding her interview with Stoddard, a
transcript of which was admitted as a full exhibit at
trial. Stoddard asked her about the possibility of loss of
rent, to which the plaintiff’s adjuster, who was present
during the interview, indicated that a loss of rent claim
was being made. At trial, the plaintiff’s counsel objected
on the ground of relevance. The court questioned the
defendant’s counsel: ‘‘[A]ssuming she did tell someone
she was claiming lost rent as part of her claim in this
case, and now she’s not claiming [it], why is that an
issue in our case?’’ The defendant’s counsel responded:
‘‘As part of its investigation [the defendant] had asked,
as [the plaintiff] . . . testified . . . that she produced
copies of the lease agreements. We now have testimony
that those lease agreements were created after the fact.
This was relevant to [the defendant’s] investigation of
the claim insofar as these were [the] documents [it]
asked for, and also, insofar at least at the point of her
recorded statement, there was possibly a loss of rent
. . . claim being made.’’ The plaintiff’s counsel stated:
‘‘[W]e are not claiming loss [of] rent. Yes, she did lose
rent. I mean, the property is uninhabitable even today.
So, we could have possibly pursued the claim for lost
rent . . . . We haven’t done that.’’ The defendant’s
counsel argued that the key was whether the item was
fraudulently concealed or misrepresented, and that
‘‘even if eventually it turns out that that’s not going to
be a component in the case, the fact that it occurred
and it was relevant to the investigation makes it mate-
rial.’’ The court overruled the plaintiff’s objection. The
defendant’s counsel then questioned the plaintiff
regarding the lease agreements and the address she
used on them. The plaintiff testified on redirect exami-
nation that there were no false statements in the leases,
in that the leases, although not precisely copies of the
originals, did not misrepresent or conceal any fact.
The court did not misapply the law or otherwise
err in concluding that the misrepresentation was not
material. The court found that the record did not estab-
lish that the plaintiff ‘‘ever made a claim for lost rents.’’
(Emphasis added.) The court further found that after
Stoddard asked the plaintiff if she had leases for the
Bond Street renters, she was told that the defendant
needed to have copies of the leases. In the unusual
circumstances of this case, the court’s conclusion
regarding materiality was not unreasonable.5 There
appears to be no reasonable possibility that the plain-
tiff’s nondisclosure regarding the leases had any effect
on the defendant’s investigation or thought process
regarding the investigation.6 See Fine v. Bellefonte
Underwriters Ins. Co., supra, 725 F.2d 183–84 (false
sworn answers material if they might affect attitude
and action of insurer).
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘[I]t has become the established law of this State that one instituting an
action upon an insurance policy is only obliged to allege in his complaint,
in general terms, that the various conditions precedent stated in the policy
have been fulfilled; that it is then incumbent upon the defendant, by way
of special defense, to set up such failures to comply with such conditions
as it proposes to claim; that the burden rests upon the plaintiff to prove
compliance with the conditions so put in issue, but that, as to other condi-
tions precedent, compliance is presumed, without offer of proof by the
plaintiff. . . . In a case of this kind the plaintiff is not required to [negate]
every possible defense under the policies. In the absence of special defenses
his burden is satisfied when he proves his interest, his loss and compliance
with the policy requirements as to proof of loss. . . . Where, however, the
defendant raises the issue of violation of some particular condition of the
policy by a special defense, the burden of proving this issue is on the plaintiff.
. . . On the other hand, the burden of proving an exception to a risk is on
the insurer. . . . A condition precedent is one which is to be performed
before some right dependent thereon accrues, or some act dependent
thereon is performed. . . . The object of an exception is to exclude that
which would otherwise be included, to take special cases out of a general
class. . . . By exception of course is meant an exclusion of one or more
of the risks otherwise generally insured against . . . .’’ (Citations omitted;
internal quotation marks omitted.) Young v. American Fidelity Ins. Co., 2
Conn. App. 282, 285–86 479 A.2d 244 (1984), overruled in part on other
grounds by Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988).
2
There was evidence supporting the defendant’s factual claims.
3
General Statutes § 38a-307 prescribes, inter alia, that the following lan-
guage be included in fire insurance policies: ‘‘This entire policy shall be
void if, whether before or after a loss, the insured has wilfully concealed
or misrepresented any material fact or circumstance concerning this insur-
ance or the subject thereof, or the interest of the insured therein, or in case
of any fraud or false swearing by the insured relating thereto.’’
4
The interview Stoddard conducted with the plaintiff in this case was
not under oath.
5
We, of course, make no determinations regarding credibility.
6
There was no evidence that the documents submitted by the plaintiff
were not in substance the same as the leases that reportedly were burned
in the fire. If, when asked to produce the leases, the plaintiff had said
that the original leases had been burned, but she could and did provide
recreations, there would have been no misrepresentation. We do not see
how the ‘‘misrepresentation’’ that did occur could have had any material
effect on the investigation.