Liberty Transportation, Inc. v. Massachusetts Bay Ins. Co.

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APPENDIX
LIBERTY TRANSPORTATION, INC.
v. MASSACHUSETTS BAY
INSURANCE COMPANY*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-S
Memorandum filed March 27, 2018
Proceedings
Memorandum of decision on defendant’s motion to
dismiss. Motion granted.
Stuart G. Blackburn, for the plaintiff.
Stephen O. Clancy and Jessica A. R. Hamilton, for
the defendant.
Opinion
SHAPIRO, J. On January 22, 2018, in this insurance
claim matter, the court heard oral argument concerning
the defendant’s motion to dismiss (# 123). After consid-
ering the parties’ written submissions and arguments,
the court issues this memorandum of decision.
I
BACKGROUND
The defendant, Massachusetts Bay Insurance Co.,
contends that the plaintiff, Liberty Transportation, Inc.,
lacks standing to pursue this matter, since it assigned
its rights to recover any insurance proceeds to a third
party. The plaintiff alleges that it is entitled to payments
under an insurance policy issued by the defendant con-
cerning a commercial building. It contends that the loss
which is the subject of the action predated the purchase
agreement relied on by the defendant, and, in the agree-
ment, the plaintiff retained the right to continue to use
or rent the two units in the building which are the
subject of the claim. Additional references to the back-
ground are set forth below.
II
DISCUSSION
A
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . Standing
requires no more than a colorable claim of injury; a
[party] ordinarily establishes . . . standing by allega-
tions of injury. Similarly, standing exists to attempt to
vindicate arguably protected interests.’’ (Internal quota-
tion marks omitted.) Ferri v. Powell-Ferri, 326 Conn.
438, 447–48, 165 A.3d 1137 (2017).
‘‘[B]ecause the issue of standing implicates subject
matter jurisdiction, it may be a proper basis for granting
a motion to dismiss.’’ Electrical Contractors, Inc. v.
Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188
(2012). ‘‘[W]hether a party has standing, based upon a
given set of facts, is a question of law for the court
. . . and in this respect the labels placed on the allega-
tions by the parties [are] not controlling.’’ (Citation
omitted.) Ganim v. Smith & Wesson Corp., 258 Conn.
313, 348, 780 A.2d 98 (2001). ‘‘It is well established
that, in determining whether a court has subject matter
jurisdiction, every presumption favoring jurisdiction
should be indulged.’’ (Internal quotation marks omit-
ted.) Financial Consulting, LLC v. Commissioner of
Ins., 315 Conn. 196, 226, 105 A.3d 210 (2014).
The defendant contends that the plaintiff made an
assignment to Capital Three Development, LLC (Capi-
tal), of the plaintiff’s right to the insurance proceeds
pursuant to the real estate purchase agreement
(Agreement) between the plaintiff and Capital.
‘‘An assignment is a transfer of property or some
other right from one person (the assignor) to another
(the assignee), which confers a complete and present
right in the subject matter to the assignee.’’ (Internal
quotation marks omitted.) American First Federal, Inc.
v. Gordon, 173 Conn. App. 573, 582, 164 A.3d 776, cert.
denied, 327 Conn. 909, 170 A.3d 681 (2017). ‘‘An assign-
ment is a contract between the assignor and the
assignee, and is interpreted or construed according to
rules of contract construction.’’ (Internal quotation
marks omitted.) Schoonmaker v. Lawrence Brunoli,
Inc., 265 Conn. 210, 227, 828 A.2d 64 (2003). As such,
‘‘[t]he assignment . . . remains valid and enforceable
against both the assignor and the assignee.’’ (Internal
quotation marks omitted.) Sunset Gold Realty, LLC v.
Premier Building & Development, Inc., 133 Conn. App.
445, 453, 36 A.3d 243, cert. denied, 304 Conn. 912, 40
A.3d 319 (2012). ‘‘Succession by an assignee to exclusive
ownership of all or part of the assignor’s rights respect-
ing the subject matter of the assignment, and a corres-
ponding extinguishment of those rights in the assignor,
is precisely the effect of a valid assignment.’’ Bouchard
v. People’s Bank, 219 Conn. 465, 473, 594 A.2d 1 (1991).
An assignment is valid if two elements are satisfied.
See American First Federal, Inc. v. Gordon, supra, 173
Conn. App. 583–84. The first element is that the assignor
possessed ‘‘an intent to assign—that is, to [confer] a
complete and present right in the subject matter to the
assignee.’’ (Internal quotation marks omitted.) Id., 583.
‘‘The intent to assign may appear from the writing itself,
or may be derived from another source, such as the
acts of the assignor or the surrounding circumstances.’’
(Internal quotation marks omitted.) Id., 583–84. ‘‘No
words of art are required to constitute an assignment;
any words that fairly indicate an intention to make the
assignee owner of a claim are sufficient . . . .’’ (Inter-
nal quotation marks omitted.) Sunset Gold Realty, LLC
v. Premier Building & Development, Inc., supra, 133
Conn. App. 452–53. ‘‘In determining the intent of the
parties to an assignment, all the facts and circumstances
surrounding the transaction must be taken into consid-
eration.’’ (Internal quotation marks omitted.) American
First Federal, Inc. v. Gordon, supra, 584. The second
element of a valid assignment is ‘‘that the subject matter
of the assignment be adequately identified.’’ Id. The
subject matter of an assignment is sufficiently identified
if it is ‘‘described with such particularity as to render
it capable of identification.’’ (Internal quotation marks
omitted.) Dysart Corp. v. Seaboard Surety Co., 240
Conn. 10, 17, 688 A.2d 306 (1997).
In interpreting the Agreement, ‘‘[w]e accord the lan-
guage employed in the contract a rational construction
based on its common, natural and ordinary meaning
and usage as applied to the subject matter of the con-
tract. . . . Where the language is unambiguous, we
must give the contract effect according to its terms.’’
(Internal quotation marks omitted.) Ramirez v. Health
Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576
(2008). ‘‘When the language of a contract is ambiguous,
the determination of the parties’ intent is a question of
fact . . . . [When] there is definitive contract lan-
guage, [however] the determination of what the parties
intended by their contractual commitments is a ques-
tion of law. . . . It is implicit in this rule that the deter-
mination as to whether contractual language is plain
and unambiguous is itself a question of law . . . .’’ Gold
v. Rowland, 325 Conn. 146, 157–58, 156 A.3d 477 (2017).
‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . . In contrast, a contract is ambiguous if the
intent of the parties is not clear and certain from the
language of the contract itself. . . . [A]ny ambiguity in
a contract must emanate from the language used by
the parties. . . . The contract must be viewed in its
entirety, with each provision read in light of the other
provisions . . . and every provision must be given
effect if it is possible to do so. . . . If the language of
the contract is susceptible to more than one reasonable
interpretation, the contract is ambiguous.’’ (Citations
omitted; internal quotation marks omitted.) Cruz v.
Visual Perceptions, LLC, 311 Conn. 93, 102–103, 84
A.3d 828 (2014).
The Agreement’s language is unambiguous. It reflects
that the plaintiff intended to assign its right to the insur-
ance proceeds to Capital. Section 12 of the agreement
provides: ‘‘[Liberty Transportation, Inc.] assumes all
risk of loss or damage to the Premises until closing and
[Capital] assumes same upon closing. If any damage
to the premises shall not be restored prior to closing
[Capital] shall be required to close title to the premises
and shall receive in an amount not to exceed the pur-
chase price all insurance monies recovered or recover-
able on account of such damage. In the event of damage
or loss [Liberty Transportation, Inc.] shall immediately
notify [Capital] thereof and furnish to [Capital] a written
statement of the amount of insurance, if any, payable
on account thereof.’’ (Emphasis added.)
The express and unambiguous language of § 12
evinces the fact that Capital—to the exclusion of the
plaintiff—would solely possess the right to insurance
proceeds that are ‘‘recovered or recoverable’’ on the
basis of any unrestored damage to the premises. This
fact compels the conclusion that the plaintiff intended
to assign its right to such proceeds to Capital. Accord-
ingly, the first element of a valid assignment is satisfied.
Moreover, the subject matter of the assignment
between the plaintiff and Capital is adequately identi-
fied. As previously stated, § 12 of the agreement pro-
vides in relevant part: ‘‘If any damage to the premises
shall not be restored prior to closing [Capital] shall be
required to close title to the premises and shall receive
in an amount not to exceed the purchase price all insur-
ance monies recovered or recoverable on account of
such damage.’’ The unambiguous language of § 12
describes what is being transferred (the right to all
insurance proceeds that are recovered or recoverable
on the basis of any unrestored damage to the premises)
and to whom it is being transferred (Capital). In light
of these details, the subject matter of the assignment
between the plaintiff and Capital is capable of identifica-
tion. Accordingly, the second element of a valid assign-
ment is satisfied.
In sum, the two elements of a valid assignment are
satisfied in the present case because the express and
unambiguous language of § 12 of the Agreement (1)
compels the conclusion that the plaintiff intended to
assign its right to the insurance proceeds to Capital,
and (2) adequately identifies the subject matter of the
assignment, the right to all insurance proceeds that are
recovered or recoverable on the basis of any unrestored
damage to the premises. Accordingly, the plaintiff val-
idly assigned its right to such proceeds to Capital pursu-
ant to agreement.
The plaintiff argues that it did not assign its right to
the insurance proceeds because the property damage
for which the insurance proceeds are sought occurred
before the plaintiff and Capital entered into the
Agreement, and § 12 of the Agreement does not cover
property damage that occurred before the Agreement
was executed.
As stated previously, § 12 of the Agreement provides
in relevant part: ‘‘If any damage to the premises shall
not be restored prior to closing [Capital] shall be
required to close title to the premises and shall receive
in an amount not to exceed the purchase price all insur-
ance monies recovered or recoverable on account of
such damage.’’ (Emphasis added.) Section 12 does not
expressly draw a distinction between unrestored dam-
age to the premises that occurred before the execution
of the Agreement, and such damage that occurred after
the plaintiff and Capital entered into the Agreement.
Moreover, the use of the word ‘‘any’’ to modify the
phrase ‘‘damage to the premises’’ has the effect of
broadening § 12 to cover unrestored damage to the
premises, regardless of whether such damage occurred
either before or after the Agreement was executed by
the plaintiff and Capital. See Salce v. Wolczek, 314 Conn.
675, 686, 104 A.3d 694 (2014). Accordingly, the plaintiff’s
first argument is inconsistent with the plain language
of § 12.
The plaintiff also asserts that the interest which the
plaintiff retained in the property’s rental units pursuant
to § 17 of the Agreement provides the plaintiff with
standing in the present case. Any property (leasehold)
interest that the plaintiff retained in the rental units is
separate and distinct from any contractual right that
the plaintiff allegedly has in the insurance proceeds. In
the present case, the plaintiff is seeking to vindicate its
alleged contractual right in the insurance proceeds, not
a purported property interest. Thus, the alleged interest
that the plaintiff retained in the property’s rental units
does not provide the plaintiff with standing in the pre-
sent case.
The plaintiff also argues, without documentation, that
there is evidence of a separate agreement between the
plaintiff and Capital concerning the damage to the two
units. The Agreement provides, in paragraph 18, that it
may not be modified, except in writing, and signed by
the parties thereto. In addition, it contains an integra-
tion clause, in paragraph 21, which states, ‘‘This
agreement contains the entire contract between the
parties hereto and no oral statements or promises and
no understandings not embodied in this writing shall
be valid or binding.’’
The statute of frauds, General Statutes § 52-550,1 bars
actions based on agreements pertaining to real property
which are not in writing and signed by the party to be
charged. See Deutsche Bank Trust Co. Americas v.
DeGennaro, 149 Conn. App. 784, 788, 89 A.3d 969 (2014)
(modification of written agreement must be in writing
to satisfy statute of frauds).
The plaintiff’s president’s deposition testimony con-
cerning an agreement involving a separate arrangement
is unavailing. ‘‘The parol evidence rule is a substantive
rule of contract law that prohibits the use of extrinsic
evidence to vary or contradict the terms of an integrated
written contract.’’ (Internal quotation marks omitted.)
Sims v. Honda Motor Co., 225 Conn. 401, 416, 623 A.2d
995 (1993). ‘‘[O]ne purpose of the parol evidence rule is
to secure business stability.’’ (Internal quotation marks
omitted.) Id., 416–17. As stated above, no written, sepa-
rate agreement has been provided to the court. Rather,
as stated above, the Agreement must be given effect
according to its terms.
Thus, the plaintiff lacks standing in the present case
because, by virtue of the assignment, it has no legal
interest in alleged insurance proceeds that are due and
payable on account of damage to the premises.
III
CONCLUSION
For the reasons stated above, the defendant’s motion
to dismiss is granted. It is so ordered.
* Affirmed. Liberty Transportation, Inc. v. Massachusetts Bay Ins. Co.,
189 Conn. App. 595, A.3d (2019).
1
General Statutes § 52-550 (a) provides in relevant part: ‘‘No civil action
may be maintained in the following cases unless the agreement, or a memo-
randum of the agreement, is made in writing and signed by the party, or
the agent of the party, to be charged . . . (4) upon any agreement for the
sale of real property or any interest in or concerning real property . . . .’’