DocketNumber: No. CV 01 0185458
Citation Numbers: 2003 Conn. Super. Ct. 2253, 34 Conn. L. Rptr. 59
Judges: ADAMS, JUDGE.
Filed Date: 2/13/2003
Status: Non-Precedential
Modified Date: 7/5/2016
On August 21, 2001, the plaintiff, Royal Insurance Company (Royal) commenced this subrogation action by service of the summons and complaint on the defendant, Prudential Residential Services Limited Partnership, doing business as Prudential Relocation Management (Prudential). In its single-count complaint against Prudential, the plaintiff alleges that Prudential breached its contract with the plaintiff's insured, John Helmers. Specifically, Royal alleges that John and Adele Glenn Helmers (Helmers) entered into a contract with Prudential for the purchase of a property owned by Prudential in Darien, Connecticut. The plaintiff further alleges that, pursuant to paragraph eighteen of the seller's rider, Prudential represented that the property did not contain any leaking fuel tanks, oil contamination or abandoned underground fuel oil tanks. The sale was consummated on February 11, 1997, after which the Helmers allegedly discovered fuel oil in a stream located on the property, an oil leak from an underground fuel line and an abandoned underground fuel oil tank. Due to Prudential's alleged breach of contract, Royal, in its capacity as John Helmers' insurer, allegedly paid $65,000 in insurance proceeds to John Helmers for remediation of the property. Royal claims that, as a result, it is subrogated to the rights of its insured against Prudential to the extent of that payment.
On May 22, 2002, Prudential filed a motion to implead the Helmers and two additional parties as third-party defendants, alleging that they are potentially liable to Prudential for the plaintiff's claim. The motion was granted by the court (Ryan, J.) on June 4, 2002.
On September 12, 2002, Prudential filed a second amended answer, special defenses, and counterclaims. In its first counterclaim, for breach of contract, Prudential alleges that it entered into a contract with the Helmers in which the Helmers agreed to notify Prudential of any defects in the property within a specific time limit. Prudential alleges that the CT Page 2254 Helmers breached the contract because they failed to notify it of any defects within that time limit. In its second counterclaim, Prudential alleges that, pursuant to its contract with the Helmers, Royal, as subrogee of John Helmers, is obligated to defend and indemnify Prudential in connection with the present action. In its third counterclaim, Prudential asserts a cause of action against Royal for vexatious litigation, based on the plaintiff's conduct in initiating and prosecuting the present action.
On September 26, 2002, the plaintiff filed a motion to strike all three counterclaims, accompanied by a memorandum in support. On October 16, 2002, Prudential filed a memorandum in opposition.
Royal moves to strike all three counterclaims on the ground that Prudential may not assert counterclaims against it as subrogee in this subrogation action. Although the plaintiff concedes that it, as subrogee of its insured, John Helmers, stands in the place of its insured and is, therefore, subject to any and all defenses that Prudential has against its insured, it argues that a counterclaim to an action is not a defense. Prudential counters that the plaintiff, as subrogee, stands in the shoes of its insured and is, therefore, subject to any claims that arose out of the transaction that is the subject of the plaintiff's complaint. CT Page 2255
"In its simplest form, subrogation allows a party who has paid a debt to `step into the shoes' of another . . . to assume his or her legal rights against a third party to prevent that party's unjust enrichment . . . In that way, an insurance company, for example, can be substituted for the insured in an action against a third-party tortfeasor. The insured, having been paid by the insurer, in essence, transfers his rights against the tortfeasor to the insurer. The insurer, thus, can attempt to collect from the party that caused the loss to the extent expended by the insurer in satisfying the claim." (Citation omitted.)Wasko v. Manella,
Although the Connecticut Supreme and Appellate Courts have not ruled on the question of whether a defendant may assert a counterclaim against an insurer in a subrogation action, other authorities have distinguished the defendant's right to bring a special defense from the defendant's right to bring a counterclaim. According to one such authority, "[a]s a qualification to the concept that the subrogated insurer stands in the identical position as the insured subrogor, it may be held that the subrogee is not subject to counterclaims which the wrongdoer could have asserted had he been sued by the insured." 16 G. Couch, Insurance (2d Ed. 1983) § 61:236, p. 296. For example, in both Seaco Ins. Co. v.Devine Bros., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0374721 (June 13, 2001, Skolnick; J.) (
Likewise, in Liberty Mutual Ins. Co. v. Luna, supra,
Other Superior Court decisions addressing this issue have rejected the proposition that a defendant is entitled to assert a counterclaim against a subrogee for the tortious conduct of its insured, albeit by implication. For example, in Allstate Ins. Co. v. Appell,
The above cases, both explicitly and implicitly, have rejected the contention that a defendant can assert a counterclaim against a subrogee for the tortious conduct of its insured. Although these decisions are not binding on this court, their reasoning is nonetheless persuasive. Prudential's first and second counterclaims are both premised upon a contract between Prudential and the Helmers, a contract to which the plaintiff was not a party. Given that a contract cannot be enforced against a plaintiff who is not a party to the contract; Reynolds v.Owen,
In the third counterclaim, Prudential asserts a cause of action against the plaintiff for vexatious litigation. This presents a different situation, because this claim is based upon the plaintiff's alleged conduct, and not upon that of its insured. Prudential alleges that the "[p]laintiff has commenced and prosecuted the instant action against Prudential Relocation without probable cause and with malicious intent to unjustly vex and trouble Prudential." Royal argues that the vexatious litigation claim is legally insufficient because Prudential cannot bring the claim when the underlying action is still pending. The defendant counters that pursuant to the policy of judicial economy, it may assert a counterclaim for vexatious litigation while the underlying case is still pending.
"In suits for vexatious litigation, it is recognized to be sound policy CT Page 2257 to require the plaintiff to allege that prior litigation terminated in his favor. This requirement serves to discourage unfounded litigation without impairing the presentation of honest but uncertain causes of action to the courts . . . The requirement furthermore serves the interest of finality of judicial decisions by preventing a person who was unsuccessful in the original proceeding from relitigating the same issues in a subsequent action for vexatious litigation." (Citation omitted; internal quotation marks omitted.) Zeller v. Consolini,
TAGGART D. ADAMS SUPERIOR COURT JUDGE