Viking Construction, Inc. v. 777 Residential, LLC

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VIKING CONSTRUCTION, INC. v. 777
RESIDENTIAL, LLC, ET AL.
(AC 41450)
Alvord, Keller and Eveleigh, Js.
Syllabus
The cross claim defendant insurance company, L Co., appealed to this court
from the summary judgment rendered by the trial court against it in
favor of the cross claim plaintiffs, who had alleged breach of contract
against L Co. on the basis of its refusal to cover a claimed loss under
a builder’s risk insurance policy. The cross claim plaintiffs hired V Co.,
a general contractor, for the renovation of a high-rise building that they
owned. The subcontractor, A Co., cleaned the building’s concrete facade
and inadvertently damaged the building’s windows, which had to be
replaced. Thereafter, V Co. brought an action for breach of contract
against the cross claim plaintiffs, which in turn filed their cross claim
after L Co. denied their claim for coverage of the loss under the policy.
L Co. filed a motion for summary judgment on the cross claim, which
the trial court denied, explaining that its conclusion was based on a
reading of the policy’s defects, errors, and omissions exclusion in con-
junction with the resulting loss clause in the policy, which was an
exception to that exclusion. The cross claim plaintiffs then filed a motion
for summary judgment on their cross claim, which the court granted.
On appeal, L Co. claimed that because the policy’s defects, errors, and
omissions exclusion barred coverage and the resulting loss clause did
not reinstate coverage, the trial court erred in granting the motion for
summary judgment filed by the cross claim plaintiffs and in denying L
Co.’s motion for summary judgment. Held:
1. The trial court erred in rendering summary judgment in favor of the cross
claim plaintiffs on their cross claim because the defects, errors and
omissions exclusion of the policy unambiguously barred coverage:
although the cross claim plaintiffs claimed that the defects, errors and
omissions exclusion did not bar recovery because the windows were
not part of the renovation, the plain meaning of the policy’s exclusion,
which provided, inter alia, that L Co. would not pay for loss or damage
caused by an act, defect, error, or omission relating to renovation,
indicated that the cleaning of the building’s facade was part of the
renovation and, thus, the damage to the windows, which was a direct
result of that cleaning, was related to the renovation, and that conclusion
was further supported by the fact that A Co.’s contractual obligations
in the performance of its renovation work included avoiding harm to
the windows; moreover, the claim of the cross claim plaintiffs that the
defects, errors and omissions exclusion applied only to the finished
product, not to the process implemented by A Co., was unavailing, as that
reading of the exclusion would have rendered most of the exclusion’s
language superfluous by giving effect only to the portion of the exclusion
that addressed the quality of the finished product and by ignoring certain
other language in the exclusion; furthermore, there was no merit to the
claim of the cross claim plaintiffs that the renovation endorsement
would have been rendered meaningless if the exclusion applied, as the
main policy form expressly limited coverage to new construction and,
therefore, if the cross claim plaintiffs failed to purchase the endorsement,
they would have been unable to recover for damage caused by a covered
peril to the existing building they were renovating, and because the
renovation endorsement was incorporated by reference into the main
policy, all of the provisions of the main policy applied with equal effect.
2. The trial court incorrectly interpreted the resulting loss clause as entitling
the cross claim plaintiffs to coverage: on the basis of the plain language
of the resulting loss clause, which provided that, if an act, defect, error,
or omission in the exclusion resulted in a covered peril, then L Co. must
cover the loss or damage caused by that covered peril, a loss caused
by an act during a renovation was covered if the act caused a covered
peril and that latter peril damaged the building, but, in the present case,
there was only one cause of the cross claim plaintiffs’ loss—A Co.’s
spraying of the building, which caused damage to the windows—and
that was not a covered peril; accordingly, the resulting loss clause did
not apply.
Argued February 14—officially released May 28, 2019
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford and transferred
to the Complex Litigation Docket, where the court,
Moukawsher, J., granted the plaintiff’s motion to cite
in 777 Main Street, LLC, et al. as defendants; thereafter,
the named defendant et al. filed a counterclaim and
filed a cross claim against the defendant Liberty Mutual
Fire Insurance Company et al.; subsequently, the named
defendant et al. withdrew the counterclaim and with-
drew the cross claim in part; thereafter, the plaintiff
withdrew the complaint; subsequently, the court denied
the motion for summary judgment on the cross claim
filed by the defendant Liberty Mutual Fire Insurance
Company; thereafter, the court granted the motion for
summary judgment on the cross claim as to liability
filed by the named defendant et al.; subsequently, the
court granted the motion for judgment in accordance
with the parties’ stipulation filed by the named defen-
dant et al. and rendered judgment for the named defen-
dant et al., from which the defendant Liberty Mutual
Fire Insurance Company appealed to this court.
Reversed; judgment directed.
Stephen E. Goldman, with whom was Wystan M.
Ackerman, for the appellant (defendant Liberty Mutual
Fire Insurance Company).
Jeffrey J. Vita, with whom was Theresa A. Guertin,
for the appellees (named defendant et al.).
Opinion
EVELEIGH, J. The cross claim defendant, Liberty
Mutual Fire Insurance Company (Liberty Mutual),1
appeals from the summary judgment rendered against
it in favor of the cross claim plaintiffs, 777 Main Street,
LLC (777 Main) and 777 Residential, LLC (777 Residen-
tial).2 On appeal, Liberty Mutual argues that the trial
court erred in granting the 777 entities’ motion for sum-
mary judgment on their cross claim and in denying
Liberty Mutual’s motion for summary judgment, on the
basis of its interpretation of the insurance policy issued
by Liberty Mutual to the 777 entities. Specifically, Lib-
erty Mutual argues that (1) the defects, errors, and
omissions exclusion in the insurance policy bars cover-
age, and (2) the resulting loss clause in the policy does
not reinstate coverage. We agree with Liberty Mutual
and reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. The 777 entities
are the owners of a high-rise building at 777 Main Street
in Hartford (building), which they planned to renovate
and convert from an office building into a 285 unit
apartment complex. On March 27, 2014, the 777 entities
hired Viking Construction, Inc. (Viking), as the general
contractor for the renovation. Viking’s work on the ren-
ovation included cleaning the concrete facade of the
building. On October 2, 2014, Viking subcontracted with
Armani Restoration, Inc. (Armani), to clean the con-
crete facade of the building.
From September to December, 2014, Armani cleaned
the building’s facade using a crushed glass cleaner that
was sprayed onto the building using power washers.
The cleaning inadvertently damaged the building’s
approximately 1800 windows, all of which had to be
replaced at a cost of over $4 million.
In July, 2015, the 777 entities claimed coverage of
the loss under a builder’s risk insurance policy (policy)
that they had purchased from Liberty Mutual. This pol-
icy, which was in effect when the damage occurred,
provides: ‘‘[Liberty Mutual] cover[s] direct physical loss
or damage caused by a covered peril3 to ‘buildings or
structures’ while in the course of construction, erection,
or fabrication.’’ (Footnote added.) The policy contains
several exclusions, including a ‘‘Defects, Errors, And
Omissions’’ exclusion, which provides that Liberty
Mutual is not responsible for ‘‘loss or damage consisting
of, caused by, or resulting from an act, defect, error,
or omission (negligent or not) relating to: a) design,
specifications, construction, materials, or workman-
ship; b) planning, zoning, development, siting, survey-
ing, grading, or compaction; or c) maintenance,
installation, renovation, remodeling, or repair.’’ The
exclusion, however, contains an exception, also known
as a ‘‘resulting loss’’ clause, which provides: ‘‘[I]f an act,
defect, error, or omission as described [in the exclusion]
results in a covered peril, [Liberty Mutual] do[es] cover
the loss or damage caused by that covered peril.’’
The policy also includes an optional renovation
endorsement, which the 777 entities added to the policy
because the project involved the renovation of an
existing building rather than the construction of a new
structure. The renovation endorsement provides: ‘‘[Lib-
erty Mutual] cover[s] direct physical loss or damage
caused by a covered peril to ‘building materials’ and
‘existing buildings’ that are part of [the 777 entities’]
‘rehabilitation or renovation project.’ ’’
On August 12, 2015, after investigating the 777 enti-
ties’ claimed loss under the policy, Liberty Mutual
denied coverage. On December 24, 2015, Viking filed
an action against 777 Residential, alleging breach of
contract on the basis of 777 Residential’s alleged refusal
‘‘to remit the outstanding contract balance . . . for
work Viking performed on the [renovation].’’ On May
12, 2016, Viking filed a motion to cite in as defendants,
inter alia, 777 Main, Liberty Mutual, and Armani, which
the court subsequently granted. On August 19, 2016,
the 777 entities filed a cross claim, alleging a breach
of contract on the basis of Liberty Mutual’s refusal to
cover the claimed loss under the policy. In March, 2017,
the 777 entities settled their case with Viking and Arm-
ani for $1.6 million. The 777 entities continue to seek
the remaining balance of the cost to replace the win-
dows from Liberty Mutual.
On November 6, 2017, after the close of discovery,
Liberty Mutual filed a motion for summary judgment
on the cross claim. On January 11, 2018, following oral
argument on the motion, the trial court denied Liberty
Mutual’s motion for summary judgment. In its memo-
randum of decision on the motion, the court explained
that its conclusion was based on a reading of the policy’s
exclusion in conjunction with the loss peril clause.4
On January 31, 2018, the 777 entities filed a motion
for summary judgment on their cross claim, which the
court subsequently granted on February 14, 2018 ‘‘[f]or
the reasons stated in the court’s memorandum of deci-
sion on Liberty Mutual’s motion for summary judgment
. . . .’’ On February 16, 2018, the parties filed a stipula-
tion as to the amount of damages. On February 20,
2018, the 777 entities filed a motion for judgment in
accordance with the stipulation and Liberty Mutual filed
an objection to the motion. On February 22, 2018, the
court granted the motion for judgment and rendered
judgment on the cross claim in the amount of $1,950,000
in favor of the 777 entities ‘‘for the reasons set forth in
the court’s January 11, 2018, February 14, 2018, and
February 22, 2018 memoranda of decision.’’5
Thereafter, Liberty Mutual filed the present appeal.
Additional facts and procedural history will be set forth
as necessary.
‘‘We begin our analysis with the standard of review
applicable to a trial court’s decision to grant a motion
for summary judgment. 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. A party moving for summary judg-
ment is held to a strict standard. . . . To satisfy [its]
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. . . . As the burden of proof is on the movant, the
evidence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Anderson v. Dike, 187 Conn. App. 405, 409–10,
202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d
1245 (2019).
‘‘The general principles that guide our review of insur-
ance contract interpretations are well settled. . . . An
insurance policy is to be interpreted by the same general
rules that govern the construction of any written con-
tract. . . . In accordance with those principles, [t]he
determinative question is the intent of the parties, that
is, what coverage the . . . [insured] expected to
receive and what the [insurer] was to provide, as dis-
closed by the provisions of the policy. . . . If the terms
of the policy are clear and unambiguous, then the lan-
guage, from which the intention of the parties is to be
deduced, must be accorded its natural and ordinary
meaning. . . . Under those circumstances, the policy
is to be given effect according to its terms. . . . When
interpreting [an insurance policy], we must look at the
contract as a whole, consider all relevant portions
together and, if possible, give operative effect to every
provision in order to reach a reasonable overall
result. . . .
‘‘In determining whether the terms of an insurance
policy are clear and unambiguous, [a] court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly,
any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms. . . . As with
contracts generally, a provision in an insurance policy
is ambiguous when it is reasonably susceptible to more
than one reading. . . . Under those circumstances, any
ambiguity in the terms of an insurance policy must be
construed in favor of the insured because the insurance
company drafted the policy.’’ (Internal quotation marks
omitted.) New London County Mutual Ins. Co. v.
Zachem, 145 Conn. App. 160, 164–65, 74 A.3d 525 (2013).
‘‘[I]n the event that an insurance policy term is
deemed to be ambiguous, the parties are entitled to
present extrinsic evidence regarding the mutual intent
of the insured and the insurer as to the scope of cover-
age, and the trial court must consider that evidence
before applying the rule of contra proferentem to
resolve the ambiguity in favor of the insured. In other
words, the rule should be applied as a tie breaker only
when all other avenues to determining the parties’ intent
have been exhausted. See Cruz v. Visual Perceptions,
LLC, 311 Conn. 93, 107–108, 84 A.3d 828 (2014); see,
e.g., Lexington Ins. Co. v. Lexington Healthcare Group,
Inc., 311 Conn. 29, 59 n.20, 84 A.3d 1167 (2014); Connect-
icut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779,
788–89, 900 A.2d 18 (2006); Metropolitan Life Ins. Co.
v. Aetna Casualty & Surety Co., 255 Conn. 295, 306,
765 A.2d 891 (2001) . . . .’’ (Citations omitted; footnote
omitted.) Connecticut Ins. Guaranty Assn. v. Drown,
314 Conn. 161, 195–96, 101 A.3d 200 (2014) (Rogers, C.
J., concurring).
I
On appeal, Liberty Mutual first claims that the court
erred in rendering summary judgment in favor of the
777 entities on their cross claim because the policy’s
‘‘Defects, Errors, And Omissions’’ exclusion (exclusion)
unambiguously bars coverage.6 The 777 entities claim
that the court did not err because Liberty Mutual failed
to satisfy ‘‘its heavy burden of proving that [the exclu-
sion] bars coverage for the losses.’’7 We agree with
Liberty Mutual.
‘‘In an insurance policy, an exclusion is a provision
which eliminates coverage where, were it not for the
exclusion, coverage would have existed.’’ (Internal quo-
tation marks omitted.) Hammer v. Lumberman’s
Mutual Casualty Co., 214 Conn. 573, 588, 573 A.2d 699(1990). ‘‘The burden of proving that an exclusion applies
is on the insurer . . . .’’ Capstone Building Corp. v.
American Motorists Ins. Co., 308 Conn. 760, 788 n.24, 67
A.3d 961 (2013). When policy exclusions are ambiguous,
they ‘‘are strictly construed in favor of the insured
. . . .’’ (Internal quotation marks omitted.) Connecticut
Ins. Guaranty Assn. v. Drown, supra, 314 Conn. 188.
The 777 entities first argue that the exclusion does
not bar recovery because the windows were not part
of the renovation. On the basis of a close reading of
the exclusion and its terms, we are unpersuaded.
The exclusion at issue in the present case provides:
‘‘[Liberty Mutual] do[es] not pay for loss or damage
consisting of, caused by, or resulting from an act, defect,
error, or omission (negligent or not) relating to: a)
design, specifications, construction, materials, or work-
manship; b) planning, zoning, development, siting, sur-
veying, grading, or compaction; or c) maintenance,
installation, renovation, remodeling, or repair.’’
Although the policy contains a definition section,
many of the terms used in the provision at issue are
undefined. We, therefore, look to the dictionary defini-
tion of these words to ascertain their meaning. New
London County Mutual Ins. Co. v. Zachem, supra, 145
Conn. App. 166 (‘‘[t]o determine the common, natural,
and ordinary meaning of an undefined term, it is proper
to turn to the definition found in a dictionary’’). One
such undefined word is ‘‘renovate.’’ The verb ‘‘renovate’’
is defined as ‘‘to restore to a former better state (as
by cleaning, repairing, or rebuilding) . . . .’’ Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003). In the
present case, the purpose of Armani’s work was to
restore the building to a better state by cleaning its
facade. In fact, the 777 entities admitted as much in
their brief, stating: ‘‘Armani was working on the facade
(the renovation work) . . . .’’ (Emphasis added.) On
the basis of the plain meaning of the policy, therefore,
the cleaning of the building’s facade was part of the ren-
ovation.
Having concluded that the cleaning of the building’s
facade was part of the renovation, we must next deter-
mine whether the damage to the windows, which was
a direct result of this cleaning, was related to the renova-
tion, thereby triggering the exclusion. The policy also
fails to define ‘‘relating to’’; therefore, we must again
turn to available dictionary definitions to determine the
meaning of the term. ‘‘Related’’ is defined as ‘‘connected
by reason of an established or discoverable relation
. . . .’’ Merriam-Webster’s Collegiate Dictionary, supra.
Additionally, our courts have consistently given the
term ‘‘relating to’’ a broad meaning that comports with
the dictionary definition of the term. See, e.g., Brennan
v. Brennan Associates, 293 Conn. 60, 79 n.12, 977 A.2d
107 (2009) (defining ‘‘relating to’’ as ‘‘to stand in some
relation; to have bearing or concern; to pertain; refer;
to bring into association with or connection with’’ [inter-
nal quotation marks omitted]). In the present case, the
damage to the windows was not merely connected to
the cleaning of the building’s facade, it was a direct
result of the cleaning. The 777 entities admitted this
fact when they stated that ‘‘there simply are not two
concurrent causes [of the loss]: Armani accidentally
sprayed the cleaning media onto the windows, causing
damage.’’ Thus, the damage to the windows was related
to the renovation, as is required for the exclusion to
apply.
Additionally, the parties’ actions support our conclu-
sion that the windows were part of the renovation. In
their renovation plans, the 777 entities contemplated
avoiding harm to the windows because the windows
were not to be replaced or removed. The specifications
of the contract between Viking and the 777 entities
set forth Viking’s and Armani’s obligation to protect
adjacent surfaces, which would include the windows,
providing that Viking was to ‘‘[p]rotect . . . sur-
rounding surfaces of building being restored . . . from
harm resulting from concrete restoration work.’’
Although these specifications were drafted in contem-
plation of the use of a chemical cleaning media, Armani
had a general obligation to avoid damage to adjacent
surfaces, as set forth in the ‘‘General Conditions’’ provi-
sion of Viking’s contract with the 777 entities, which
provided: ‘‘[Viking] . . . shall provide reasonable pro-
tection to prevent damage, injury or loss to . . . other
property at the site or adjacent thereto, such as . . .
structures and utilities not designated for removal, relo-
cation or replacement . . . .’’ Because Armani’s obliga-
tions in the performance of its renovation work
included avoiding harm to the windows, structures not
designated for removal, relocation or replacement, it is
difficult to see how the windows and the damage to
them is not connected or related to the renovation.
In support of its argument, Liberty Mutual cites exten-
sively to cases from other jurisdictions. Although the
majority of these cases are unpersuasive, one case,
Golan Management, LLC v. Hartford Ins. Co., United
States District Court, Docket No. CIV-11-0036-C (RJC)
(W.D. Okla. May 3, 2012), is instructive because it is
factually similar to the present case. In Golan Manage-
ment, LLC, the owner of a commercial building filed
an insurance claim when the windows of the building
were damaged as a result of exterior cleaning. Id. The
insurance company denied the claim, and the building
owner sued for, inter alia, breach of contract. Id. The
policy in Golan Management, LLC, contained an exclu-
sion that is similar to the exclusion at issue in the
present case. The exclusion in Golan Management,
LLC, provided: ‘‘[The insurer] will not pay for the cost
of correcting defects in Covered Property, or loss or
damage to Covered Property that was caused by,
resulting from, or arising out of work done on Covered
Property by [the insured], [the insured’s] employees,
or others working on [the insured’s] behalf.’’ (Internal
quotation marks omitted.) Id. Like the 777 entities, the
building owner in Golan Management, LLC, argued that
the exclusion did not apply because ‘‘the damage was
not caused by work being done to the glass, but by
work being done to the building . . . .’’ Id. The court,
however, rejected this argument and granted the insur-
ance company’s motion for summary judgment. Id. Like
the court in Golan Management, LLC, we are unper-
suaded by the 777 entities’ argument to the effect that
the exclusion is applicable to the cleaning of the build-
ing’s facade but not to the windows. We conclude that
the ordinary meaning of the terms in the policy indicates
that the exclusion applies to the windows.
The 777 entities next argue that the damage to the
windows is not barred by the exclusion because the
exclusion only applies to the finished product, not to
the process implemented by Armani. This reading of
the exclusion would render most of the exclusion’s
language utterly superfluous, contrary to the principle
that ‘‘[an insurance] policy should not be interpreted
so as to render any part of it superfluous.’’ (Internal
quotation marks omitted.) R.T. Vanderbilt Co. v. Conti-
nental Casualty Co., 273 Conn. 448, 468, 870 A.2d 1048(2005). This interpretation of the exclusion would
ignore subsections (b) and (c) of the exclusion and only
give effect to subsection (a) of the exclusion, which
addresses the quality of the finished product, stating:
‘‘[Liberty Mutual] do[es] not pay for loss or damage
consisting of, caused by, or resulting from an act, defect,
error, or omission (negligent or not) relating to . . .
design, specifications, construction, materials, or work-
manship . . . .’’ Subsections (b) and (c) of the exclu-
sion provide: ‘‘[Liberty Mutual] do[es] not pay for loss
or damage consisting of, caused by, or resulting from
an act, defect, error, or omission (negligent or not)
relating to . . . b) planning, zoning, development, sit-
ing, surveying, grading, or compaction; or c) mainte-
nance, installation, renovation, remodeling, or repair.’’
We conclude, therefore, that the 777 entities’ argument
to the effect that the exclusion applies only to the fin-
ished product of Armani’s work is untenable.
The 777 entities also argue that the exclusion does
not bar coverage because such a reading would render
the renovation endorsement meaningless. Liberty
Mutual counters that, even if coverage is excluded for
the damage to the windows, the endorsement has mean-
ing because the main policy that the 777 entities pur-
chased covered only new construction and, therefore,
‘‘without the renovation endorsement the policy
wouldn’t have covered any damage to the existing
building . . . .’’ (Emphasis added.) Indeed, at oral argu-
ment before this court, the 777 entities stated that they
purchased the endorsement to extend coverage to the
existing building because the policy only covered
new construction.
Although some jurisdictions assume that builder’s
risk policies exclusively apply to new construction; see,
e.g., Ajax Building Corp. v. Hartford Fire Ins. Co., 358
F.3d 795, 799 (11th Cir. 2004) (‘‘The very purpose of a
builder’s risk policy is to provide protection for the
building under construction. . . . Just as there are
standard forms of property insurance used to insure
existing buildings, builder’s risk policies are used to
insure the building while it is in the process of being
built.’’ [Citations omitted; internal quotation marks
omitted.]); in Connecticut, ‘‘[t]he scope of coverage
depends on the language of the policy.’’ D. Rosengren,
13 Connecticut Practice Series: Construction Law
(2005) § 12:3, p. 245. In the present case, the main policy
form expressly limits coverage to new construction.
The main policy form provides: ‘‘[Liberty Mutual] cov-
er[s] direct physical loss or damage caused by a covered
peril to ‘buildings or structures’ while in the course
of construction, erection, or fabrication.’’ (Emphasis
added.) It then goes on to state: ‘‘[Liberty Mutual] only
cover[s] . . . ‘buildings or structures’ in the course of
construction . . . .’’ (Emphasis added.) Thus, the 777
entities’ argument that the endorsement would be ren-
dered meaningless if the exclusion applies is without
merit because, if they had failed to purchase the
endorsement, they would have been unable to recover
for damage caused by a covered peril to the existing
building they were renovating, such as fire.
Relatedly, the 777 entities argue that the exclusion
is not applicable in the present case because the renova-
tion endorsement does not contain a copy of the exclu-
sion. ‘‘A rider or endorsement is a writing added to or
attached to a policy or certificate of insurance that
expands or restricts its benefits or excludes certain
conditions from coverage. . . . When properly incor-
porated into the policy, the policy and the rider together
constitute the contract of insurance and are to be read
together to determine the contract actually intended by
the parties.’’ (Internal quotation marks omitted.) Lib-
erty Mutual Ins. Co. v. Lone Star Industries, Inc., 290
Conn. 767, 806, 967 A.2d 1 (2009); see also Schultz v.
Hartford Fire Ins. Co., 213 Conn. 696, 705, 569 A.2d
1131 (1990) (‘‘[i]n construing an endorsement to an
insurance policy, the endorsement and policy must be
read together, and the policy remains in full force and
effect except as altered by the words of the endorse-
ment’’ [internal quotation marks omitted]).
The 777 entities point out that ‘‘typically, endorse-
ments to insurance policies include language incorpo-
rating the terms and conditions of the endorsement into
the main policy form (or vice versa)’’; however, contrary
to the 777 entities’ argument that the endorsement does
not incorporate the terms of the main policy, the
endorsement, in fact, contains the following language:
‘‘This endorsement changes the Builders’ Risk Cover-
age.’’ Because the renovation endorsement in the pre-
sent case is incorporated by reference into the main
policy, all of the provisions of the main policy apply
to the endorsement with equal effect.8 We, therefore,
conclude that the exclusion unambiguously bars
coverage.
II
Liberty Mutual also claims that the trial court incor-
rectly interpreted the resulting loss clause as entitling
the 777 entities to coverage. Specifically, Liberty Mutual
claims that the clause does not apply because the ‘‘cause
of the loss (Armani’s negligent spraying) did not result
in any second cause of loss . . . .’’ The 777 entities
claim that, even if the exclusion applies, the court cor-
rectly interpreted the resulting loss clause as restoring
coverage. Specifically, the 777 entities argue that ‘‘if
Armani’s acts related to facade cleaning are considered
excluded, but resulted in damage to the windows, then
[Liberty Mutual] should be obligated to provide cover-
age.’’ We agree with Liberty Mutual.
A resulting loss clause, also known as an ensuing
loss clause,9 is an exception to a policy exclusion that
‘‘ensure[s] that if one of the specified uncovered events
takes place, any ensuing loss which is otherwise cov-
ered by the property insurance policy will remain cov-
ered; the uncovered event itself, however, is never
covered.’’ 11 S. Plitt et al., Couch on Insurance (3d Ed.
Rev. 2017) § 153:2, p. 153-11 n.8. ‘‘[T]he insured has the
burden of proving that an exception to an exclusion
reinstates coverage.’’ Capstone Building Corp. v. Amer-
ican Motorists Ins. Co., supra, 308 Conn. 788 n.24.
In order to analyze whether the resulting loss clause
reinstates coverage, we must again closely examine the
language of the policy. The resulting loss clause in this
contract immediately follows the exclusion and pro-
vides: ‘‘But if an act, defect, error, or omission as
described above results in a covered peril, [Liberty
Mutual] do[es] cover the loss or damage caused by that
covered peril.’’
Although the term ‘‘covered peril’’ is not defined in
the policy, the provision titled ‘‘PERILS COVERED’’
provides: ‘‘[Liberty Mutual] cover[s] risks of direct phys-
ical loss or damage unless the loss is limited or caused
by a peril that is excluded.’’ As this provision indicates,
perils, in the context of insurance, are ‘‘[t]he cause of
a risk of loss to person or property; [especially], the
cause of a risk such as fire, accident, theft, forgery,
earthquake, flood, or illness . . . .’’ (Emphasis added.)
Black’s Law Dictionary (9th Ed. 2009); see also 11 S.
Plitt et al., supra, p. 153-11 n.8 (‘‘[i]n property insurance
parlance, ‘perils’ refers to fortuitous, active, physical
forces such as lightning, wind, and explosion, which
bring about the loss’’). On the basis of the plain language
of the resulting loss clause in the present case, a loss
caused by an act during a renovation will be covered
if the act causes a covered peril, such as a fire, and
that latter peril damages the building. In the present
case, there was only one cause of the 777 entities’ loss—
the spraying of the building, which caused damage to
the windows—and because that was not a covered peril,
the resulting loss clause does not apply.
Our reading of the policy comports with this court’s
interpretation of ensuing loss clauses in Sansone v.
Nationwide Mutual Fire Ins. Co., 62 Conn. App. 526,
771 A.2d 243 (2001), and New London County Mutual
Ins. Co. v. Zachem, supra, 145 Conn. App. 160. In those
cases, this court concluded that ensuing loss clauses
apply only when there is more than one peril.
In Sansone, this court affirmed the judgment of the
trial court and adopted its decision granting an insurer’s
motion for summary judgment on the basis of its conclu-
sion that an ensuing loss clause in the insured’s home-
owners policy did not reinstate coverage for a loss
caused by an insect infestation. Sansone v. Nationwide
Mutual Fire Ins. Co., supra, 62 Conn. App. 527–28. The
policy at issue provided: ‘‘[The insurer] cover[s] direct
physical loss to property . . . except that caused by
. . . deterioration . . . wet or dry rot . . . birds, ver-
min, rodents, insects or domestic animals. . . . [A]ny
ensuing loss not excluded is covered.’’ (Internal quota-
tion marks omitted.) Sansone v. Nationwide Mutual
Fire Ins. Co., 47 Conn. Supp. 35, 38, 770 A.2d 500 (1999),
aff’d, 62 Conn. App. 526, 771 A.2d 243 (2001). The trial
court concluded that the ensuing loss clause in the
policy did not apply because the loss was caused by a
single, excluded peril—insect infestation—and ‘‘[t]here
was . . . no aggravating activity or event that caused
[the insured’s] additional losses . . . .’’ (Emphasis
added.) Id., 39.
In New London County Mutual Ins. Co. v. Zachem,
supra, 145 Conn. App. 161–63, this court was asked
to interpret an ensuing loss clause in a homeowners
insurance policy when the insureds claimed coverage
for a loss proximately caused by vandalism. The home-
owners policy at issue in Zachem contained a vandalism
exclusion and an ensuing loss clause that limited the
exclusion. Id., 162. Specifically, the ensuing loss clause
provided in relevant part: ‘‘[A]ny ensuing loss to prop-
erty . . . not excluded or excepted in this policy is
covered.’’ (Internal quotation marks omitted.) Id. In
Zachem, this court concluded that the ensuing loss
clause did not apply because the loss was proximately
caused by an excluded peril—vandalism—and there
was not a ‘‘separate and independent hazard . . . .’’
(Internal quotation marks omitted.) Id., 173.
Indeed, the approach to ensuing loss clauses adopted
by this court is in line with the rulings of many other
courts throughout the country, which hold that ensuing
loss clauses apply only when a loss is caused by a
separate and independent peril. See Taja Investments,
LLC v. Peerless Ins. Co., 717 Fed. Appx. 190, 192 (4th
Cir. 2017) (‘‘an ensuing loss provision . . . applies only
to distinct, separable, and ensuing losses’’ [internal quo-
tation marks omitted]); Travelers Indemnity Co. v.
Board of County Commissioners, 508 Fed. Appx. 733,
734–35 (10th Cir. 2013) (‘‘exception provides for cover-
age only when the excluded cause . . . becomes a new
causal agent that itself causes resultant property dam-
age’’ [internal quotation marks omitted]); Sapiro v.
Encompass Ins., 221 F.R.D. 513, 522 (N.D. Cal. 2004)
(‘‘courts have long defined an ensuing loss as a loss
separate and independent from [an] original peril’’
[internal quotation marks omitted]); H.P. Hood, LLC v.
Allianz Global Risks US Ins. Co., 88 Mass. App. 613, 619,
39 N.E.3d 769 (2015) (resulting loss clause inapplicable
because cause of loss was ‘‘not one where an excluded
occurrence involving initial property damage led to
other property damage of a different kind’’), review
denied, 473 Mass. 1111, 44 N.E.3d 862 (2016); Weeks v.
Co-Operative Ins. Cos., 149 N.H. 174, 177, 817 A.2d
292 (2003) (concluding that cause of loss separate and
independent from initial excluded loss is required for
ensuing loss clause to apply); see also Acme Galvaniz-
ing Co. v. Fireman’s Fund Ins. Co., 221 Cal. App. 3d
170, 179–80, 270 Cal. Rptr. 405 (1990) (same), review
denied, California Supreme Court, Docket No. S016534
(Cal. October 11, 1990).
The New Hampshire Supreme Court’s decision in
Weeks v. Co-Operative Ins. Cos., supra, 149 N.H. 174,
and the decision of the California Court of Appeal in
Acme Galvanizing Co. v. Fireman’s Fund Ins. Co.,
supra, 221 Cal. App. 3d 170, are illustrative of the cir-
cumstances in which, as here, ensuing loss clauses are
inapplicable. In Weeks, a brick veneer wall was damaged
when it separated from an asphalt shingle wall because
of faulty workmanship. Weeks v. Co-Operative Ins. Cos.,
supra, 174. The insurance policy that covered the build-
ing excluded losses that were a result of faulty work-
manship, but contained a resulting loss clause under
which the building owner sought coverage. Id., 174–75.
The court in Weeks concluded that the resulting loss
clause did not apply because ‘‘there was no subsequent
ensuing cause of loss separate and independent’’ from
the faulty workmanship. Id., 177–78. In reaching this
conclusion, the court in Weeks cited the decision of the
California Court of Appeal in Acme Galvanizing Co.
Id., 177.
In Acme Galvanizing Co. v. Fireman’s Fund Ins.
Co., supra, 221 Cal. App. 3d 173, an improperly welded
steel kettle filled with several tons of molten zinc rup-
tured, thereby spilling the zinc onto nearby equipment
in the plaintiff’s galvanizing plant. The rupture was a
result of a latent defect in the kettle, and the plaintiff’s
insurance policy excluded from coverage losses caused
by such defects. Id., 179. The plaintiff argued, however,
that the damage caused by the welding failure should
be covered under the policy’s ensuing loss clause. Id.
The court disagreed and concluded: ‘‘[T]here was no
peril separate from and in addition to the initial
excluded peril of the welding failure and kettle rupture.
The spillage of molten zinc was part of the loss directly
caused by such peril, not a new hazard or phenomenon.
If the molten zinc had ignited a fire or caused an explo-
sion which destroyed the plant, then the fire or explo-
sion would have been a new covered peril with the
ensuing loss covered. That did not occur.’’ Id., 180. Just
as in Weeks and Acme Galvanizing Co., the loss in the
present case was caused by a single, excluded peril,
and, therefore, the ensuing loss clause similarly does
not reinstate coverage.
The 777 entities argue, however, that Sansone and
Zachem are distinguishable and that, therefore, the
independent peril approach to ensuing loss clauses that
they set forth is inapplicable to the present case. In an
effort to distinguish these cases, the 777 entities rely
on the fact that the ensuing loss clause provisions in
those cases contained different language than the
resulting loss clause in the present case. Although the
policies in Sansone and Zachem use the term ‘‘ensuing
loss,’’ while the policy in the present case uses the
language ‘‘results in a covered peril,’’ this difference is
immaterial. It is undisputed that the clause in the pre-
sent case is a ‘‘resulting loss’’ provision and, as dis-
cussed previously in this opinion; see footnote 9 of
this opinion; ensuing loss and resulting loss clauses are
substantively indistinguishable. The clauses in Sansone
and Zachem and the clause in the present case all serve
the same purpose—reinstating coverage if an excluded
peril causes a covered peril, which, in turn, results in
a loss.
The 777 entities also attempt to distinguish Sansone
and Zachem by pointing out that those cases involved
multiple, concurrent causes of the claimed loss, while
the present case only involves one peril. Contrary to
the 777 entities’ argument, the fact that the loss in the
present case was the result of a single, uncovered peril
does not make the reasoning of Sansone and Zachem
inapplicable. In both of those cases, the court made
clear that an ensuing loss clause will only reinstate
coverage when a hazard other than the excluded peril
causes the loss. These cases clearly indicate that, as in
the present case, where an excluded peril—the cleaning
of the building’s facade as part of the renovation—was
the sole and direct cause of the damage to the windows,
the ensuing loss clause does not reinstate coverage.10
The judgment is reversed and the case is remanded
with direction to deny the 777 entities’ motion for sum-
mary judgment on the cross claim, to grant Liberty
Mutual’s motion for summary judgment and to render
judgment on the cross claim for Liberty Mutual.
In this opinion the other judges concurred.
1
Although the complaint in the underlying action was filed by Viking
Construction, Inc., against Liberty Mutual and 777 Residential, LLC, Viking
Construction, Inc., withdrew from the case and is not a party to this appeal.
This appeal arises out of a cross claim filed by 777 Main Street, LLC, and
777 Residential, LLC, against their insurer, Liberty Mutual, and other entities
which are not parties to this appeal.
2
Hereinafter, we refer to 777 Main and 777 Residential collectively as the
777 entities, and individually by name where appropriate.
3
The policy does not expressly define ‘‘covered peril,’’ however, under
the heading ‘‘PERILS COVERED,’’ it provides: ‘‘[Liberty Mutual] cover[s]
risks of direct physical loss or damage unless the loss is limited or caused
by a peril that is excluded.’’ For specific examples of the kinds of ‘‘covered
perils’’ contemplated by the policy, it is helpful to look to the definition
section of the policy, which provides in relevant part: ‘‘Specified perils
means aircraft; civil commotion; explosion; falling objects; fire; hail; leakage
from fire extinguishing equipment; lightning; riot; sinkhole collapse; smoke;
sonic boom; vandalism; vehicles; volcanic action; water damage; weight of
ice, snow, or sleet; and windstorm.’’ (Internal quotation marks omitted.)
4
Specifically, in its January 11, 2018 memorandum of decision denying
Liberty Mutual’s motion for summary judgment, the trial court stated: ‘‘The
decisive question for this summary judgment motion is what it means when
a builder’s risk insurance policy with a renovation endorsement excludes
damage ‘resulting from an act . . . relating to . . . construction, workman-
ship, [or] renovation.’ . . .
‘‘Everyone agrees that the ‘renovations’ exclusion . . . excludes insur-
ance coverage for things done to the building that amount to nothing more
than a bad job of renovating the thing intended to be renovated. But it’s
less clear whether there is coverage when a careless worker renovating one
part of the building damages another part of the building.
‘‘The answer lies in the policy’s additional language. It says that if an act
of renovation ‘results in a covered peril,’ damage from that covered peril
is covered. . . . In this context, the language reasonably appears to mean
that if the renovation ‘results’ in damage that isn’t a renovation, the latter
damage is covered despite being triggered by the former. The [777 entities]
reasonably [take] this to mean that damage to a part of the building not
being renovated by the worker—a window—is covered. . . .
‘‘But Liberty Mutual says the language is intended to provide coverage
only where there are two independent perils: one excluded peril causing
an independent peril that causes the damage. A contractor cleaning the
facade drops a wrench that breaks a wire that ultimately causes a fire that
damages the building. The second peril—the covered one—is the fire. A
facade cleaner leaves open a window that lets in rain that damages a carpet.
The second peril—the covered one—is the rain. . . .
‘‘The important thing for the special clause here—often called a ‘resulting
loss’ clause—is that the worker wasn’t renovating the window but damaged
it. The only point of getting this extra renovations policy would be to protect
against collateral damage to the building during the renovations. It doesn’t
cover any other kind of damage—to people or other property, for instance.’’
(Emphasis omitted; footnotes omitted.)
5
The court’s January 11, 2018 memorandum of decision denying Liberty
Mutual’s motion for summary judgment, which the court referenced in its
subsequent memoranda of decision, provides the only detailed explanation
of the court’s rationale for its decision to render summary judgment in favor
of the 777 entities.
6
In its January 11, 2018 memorandum of decision denying Liberty Mutual’s
motion for summary judgment, the trial court did not indicate whether
coverage was barred by the exclusion; instead, it based its conclusion that
the 777 entities were entitled to coverage upon its reading of the exclusion
in conjunction with the resulting loss clause. The resulting loss clause,
however, only may be considered when coverage is barred by the exclusion.
For the purposes of our analysis, therefore, we must infer that the court
found that the exclusion barred coverage.
7
Specifically, the 777 entities argue that the exclusion does not apply
because (1) the windows were not part of the renovation; (2) the exclusion
only applies to workmanship; (3) the application of the exclusion would
obviate the renovation endorsement; (4) the exclusion is not incorporated
into the renovation endorsement; and (5) the exclusion is ambiguous and
should be construed in their favor. We address each of these arguments
in turn.
8
Finally, the 777 entities argue that, at a minimum, the exclusion is ambigu-
ous and, therefore, must be construed in their favor. Because we conclude
that the exclusion unambiguously bars coverage, we need not address this
argument. See, e.g., Amica Mutual Ins. Co. v. Piquette, 176 Conn. App. 559,
565, 168 A.3d 623 (2017) (‘‘[A]ny ambiguity in the terms of an insurance
policy must be construed in favor of the insured because the insurance
company drafted the policy. . . . This rule of construction may not be
applied, however, unless the policy terms are indeed ambiguous.’’ [Internal
quotation marks omitted.]).
9
Although the exception at issue in the present case does not use the
term ‘‘ensuing loss,’’ courts in other jurisdictions have stated that resulting
loss clauses and ensuing loss clauses are one and the same. See, e.g., Erie
Ins. Property & Casualty Co. v. Chaber, 239 W. Va. 329, 337 n.8, 801 S.E.2d
207 (2017) (‘‘Whether an insurance policy uses the term ensuing loss or
resulting loss is of no moment. Resulting loss clauses are sometimes denomi-
nated ensuing loss clauses. The distinction is simply a matter of different
wording among insurance policies. There is no legal significance to using
one phrase over the other.’’ [Internal quotation marks omitted.]).
10
Alternatively, the 777 entities argue that, even if this court does not
interpret the ensuing loss clause as reinstating coverage, ‘‘it should deny
Liberty Mutual’s motion [for summary judgment] and leave it to the trier
of fact to determine whether the ensuing loss provision applies in this case
[because wind, which would be considered a covered peril, might have
caused the loss].’’ In support of their argument, the 777 entities cite the self-
serving deposition testimony of employees of Viking and Armani that the
damage to the windows might have been caused by wind because they
sometimes noticed that it seemed windy while they were cleaning the build-
ing. The 777 entities, however, admitted that there was only one cause of
the damage—the faulty spraying of the building’s facade. Thus, we conclude
that this argument is without merit.