MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT AS TO WHETHER INSURER MAY BY SUBROGATION RECOUP FIRE LOSS CAUSED BY TENANT'S ALLEGED NEGLIGENCE
JONES, Judge.
Plaintiff Middlesex Mutual Assurance Company brought the present action in subrogation against defendants Brian Vaszil and Robert Anthony Vaszil. Defendant Brain Vaszil was a tenant under a written lease in an apartment building owned by Hunting Lodge Partners, LLC and insured by the plaintiff. His father, Robert Anthony Vaszil signed the lease as a guarantor. This apartment building was extensively damaged in a fire which started in the defendant's apartment.
The plaintiff maintains that provisions of the lease obligated the defendants to pay for damages caused by the fire. The defendants maintain that the lease between Brian Vaszil and the owner of the apartment in question did not contain any express agreement pertaining to loss or damage resulting from a fire. The defendants therefore claim that they are entitled to summary judgment on this issue.
The court shall now review the relevant facts asserted by the parties. On or about April 13, 2001, Hunting Lodge Partners, LLC, entered into a lease of the property known as the "Hunting Lodge Apartments" located on Huntington Heights Road, Storrs, Connecticut with defendant Brian Vaszil. On or about April 20, defendant Robert Anthony Vaszil signed the lease as the parent or guardian. The lease had a parental guarantee clause that stated
"I have substantial interest in making sure the Landlord rents to my child or ward, (the Tenant) and I know the Landlord would not rent the apartment to my child or Ward without my guarantee. Therefore
I hereby guarantee the full performance of this lease by the Tenant. This guaranty is absolute and includes, but is not limited to, the payment of rent and other money charges under this lease and is subject to all terms CT Page 12838 and conditions of this lease." (emphasis added).
The lease also contains several other clauses pertaining to property damage and general care of the apartment. In particular, clause 11 Removal of Property, states "When this lease ends, you will leave the Apartment and remove all your property and the property of others and leave the Apartment in good and clean condition and repair any damage caused by yourself or others."(emphasis added).
On December 8, 2001 the lease was still in effect when the defendant's apartment as well as the apartment building sustained substantial damage as a result of a fire. The fire started from a lit candle in the bedroom of defendant Brian Vaszil. As a result of this fire the plaintiff paid to its insured over $250,00 in accordance with the terms of the insurance policy.
The plaintiff is seeking to enforce subrogation rights against the defendants in order to recover payments made to its insured, Hunting Lodge Partners, LLC. The defendants argue that the plaintiff does not have any subrogation rights because the lease does not contain an express agreement in regard to risk of loss. The plaintiff maintains that the lease contract contains several clauses which established such an express agreement, and therefore they are entitled to subrogation to recoup its loss. The relevant provisions claimed are as follows:
5. CARE OF THE APARTMENT . . . You will not destroy or damage any part of the apartment . . .
8. DAMAGE TO THE APARTMENT . . . You will not have to pay rent for any time that your use and enjoyment of the Apartment is substantially affected because the apartment or building is damaged by fire or other casualty. However, you will pay rent if you caused the damage or destruction.
11 REMOVAL OF PROPERTY . . . When the lease ends, you . . . repair any damage caused by yourself or others.
13. DEFAULT . . . You will be in default if . . . b) You violate or do not do any of the things you agree to do under this lease; . . . If you do not do any of the things you promise to do under this lease, you will pay us the amount that we pay to do the things that you did not do."
CT Page 12839 The court will now discuss the standard of review for granting summary judgment. "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." Conn. Practice Book § 17-49, Miller v. United Technologies Corp., 233 Conn. 732, 744-45 (1995). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." Miller at 745. "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law." (citations omitted), Gaynor v. Payne, 261 Conn. 585, 590-91 (2002). In order to defeat a motion for summary judgment the opposing party must show the existence of a genuine issue of material fact. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). "A `material' fact is one which will make a difference in the outcome of the case." DiLullo et al. v. Joseph, 29 Conn. L. Rptr. 467, 2001 Conn.Super. LEXIS 1093, at *3 (April 24, 2001).
In discussing an issue identical to the one in the present case Justice Borden framed the issue as follows ". . . whether, in the absence of a specific agreement covering the question, a tire insurer of leased premises has a right of subrogation against a tenant for negligently causing a fire." DiLullo et al. v. Joseph, 259 Conn. 847, 848 (2002). The Supreme court in DiLullo, held that, ". . . in the absence of an express agreement between the parties covering the question, there is no right of subrogation on the part of a landlord's fire insurer against a tenant of the landlords." Id. 850. The landlord and tenant in the DiLullo case did not have a written lease in effect at the time of the fire. Relying primarily on economic waste principles the court refused to create a default rule that would require tenants to obtain fire insurance.
Inasmuch as the Supreme court in DiLullo supra states that tenants and landlords are always free to allocate risks and coverages by specific agreements in their leases or otherwise, and the plaintiff in the instant case contends that clauses 5, 8, 11, and 13 in the lease between the defendants and Hunting Lodge Partners, LLC create a specific agreement allocating the risk of loss in this case to the defendants, the court finds that the arguments presented thus far by the defendants do not establish an entitlement to their requested relief.
Accordingly, the defendants' Motion for Summary Judgment is denied. CT Page 12840