193 Conn.App. 374
Conn. App. Ct.2019Background
- R & P Realty owned a building leased to Unger’s Floor Covering; snow/ice overloaded and damaged the roof in Feb 2011.
- Peerless insured the property, accepted the loss as covered, and paid $167,006.03 on October 17, 2012; $26,738.83 of that was allocated to demolishing the existing roof.
- During reconstruction in 2013 testing revealed asbestos in roofing membrane and lead paint on a ceiling, triggering OSHA/state abatement requirements and raising demolition/removal costs to $90,139.26.
- Peerless refused to pay the additional abatement-related demolition costs; plaintiffs sued for breach of the casualty policy (one count pursued on appeal).
- The trial court found the asbestos/lead were latent conditions not contemplated during adjustment, expressed concern about notice and replacement-cost procedural requirements, and entered judgment for Peerless.
- On appeal the plaintiffs provided only a partial trial transcript; the appellate court held the record inadequate to review the merits and affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether additional demolition/abatement costs caused by asbestos/lead are part of the property’s actual cash value (ACV) or are replacement costs | The increased demolition costs are a component of the ACV of the loss and therefore recoverable | The increased costs are replacement/restoration costs (not ACV) and/or subject to policy conditions for replacement-cost recovery (e.g., completion of repairs) | Appellate court declined to reach the substantive dispute; record inadequate for review and judgment for defendant affirmed |
| Whether plaintiffs gave reasonable notice to insurer of the supplemental claim for increased demolition/abatement costs | Plaintiffs contend they provided adequate notice (or that insurer should have anticipated the need) | Insurer contends plaintiffs failed to give reasonable notice of the supplemental asbestos/lead-related claim and the claim surfaced only near litigation start | Appellate court declined to address due-notice dispute because appellant failed to supply a complete trial record; affirmed trial judgment |
Key Cases Cited
- Northrop v. Allstate Ins. Co., 247 Conn. 242 (discussing actual cash value vs. replacement cost concepts)
- Kellogg v. Middlesex Mutual Assurance Co., 326 Conn. 638 (replacement-cost recovery generally conditioned on completion of repair)
- Buehler v. Buehler, 175 Conn. App. 375 (appellant’s duty to provide an adequate record on appeal)
- Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61 (appellate court will not speculate in absence of complete record)
- Vasquez v. Rocco, 267 Conn. 59 (inadequate appellate record precludes review of claimed trial error)
- Calo-Turner v. Turner, 83 Conn. App. 53 (same)
- Rice v. Housing Authority, 129 Conn. App. 614 (appellate court unable to evaluate claim where transcripts were not filed)