Kaminsky v. Standard Fire Insurance Company

Filing 50

RULING granting in part and denying in part 43 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 5/28/2015. (Malone, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ANDREE KAMINSKY,
Plaintiff,

CIVIL ACTION NO.
3:13-CV-1927(JCH)

v.
STANDARD FIRE INSURANCE CO.,
Defendant.

MAY 28, 2015

RULING RE: MOTION FOR SUMMARY JUDGMENT OF
DEFENDANT THE STANDARD FIRE INSURANCE COMPANY (Doc. No. 43)
Andree Kaminsky brings the present action against the Standard Fire Insurance
Company (“Standard Fire”) alleging, in a one-count Complaint (Doc. No. 1), breach of
an insurance contract. Specifically, Kaminsky alleges that Standard Fire failed to
compensate her fully when, after Superstorm Sandy damaged her home in late 2012,
she made a claim against a flood insurance policy covered by Standard Fire. Standard
Fire moves for summary judgment. See Motion for Summary Judgment of Defendant
the Standard Fire Insurance Company (Doc. No. 43). The Motion is granted in part and
denied in part.
I.

FACTS1
Andree Kaminsky holds a Standard Flood Insurance Policy (“the SFIP” or “the

Policy”) issued and covered by Standard Fire for her property, which is located at 3
Weed Circle in Stamford, Connecticut (“the Property”). Defendant the Standard Fire

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For the purposes of the present Motion, the court accepts as true the undisputed facts in the
parties’ Local Rule 56(a) Statements and views any disputed facts, as well as the entire record, in the
light most favorable to Kaminsky, the nonmoving party. Citations to the defendant’s Local Rule 56(a)(1)
Statement are only to those portions thereof actually admitted by the plaintiff in her corresponding Local
Rule 56(a)(2) Statement. This Part lays out only the central undisputed facts. Certain facts, or issues
relating to factual issues, are raised only in the Discussion section, see Part III infra.

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Insurance Company’s Local Rule 56(a)1 Statement of Undisputed Material Facts in
Support of Its Motion for Summary Judgment (“L.R. 56(a)(1) Stmt.”) (Doc. No. 43-1) ¶
13.
On or about August 28, 2011, the Property sustained damage as a result of
Hurricane Irene. Id. ¶ 15. Kaminsky made an insurance claim arising out of this
damage and collected payment on this claim. Id. ¶¶ 16–17. On or about October 29,
2012, the Property sustained damage as a result of Superstorm Sandy. Id. ¶ 18. On
October 30, 2012, Kaminsky submitted a claim to Standard Fire in relation to this
damage. See Independent Adjuster’s Report (Doc. No. 43-8) at 2. On November 21,
2012, Standard Fire, acting through an independent claims adjuster, inspected the
Property. L.R. 56(a)(1) Stmt. ¶ 19. On January 4, 2013, Standard Fire disbursed a
payment of $9,504.20 to Kaminsky. Id. ¶ 26. By letter dated April 9, 2013, Kaminsky
inquired as to further payments by Standard Fire as to further losses. See Letter from
Mary Ross-Goodnough to Matthew C. Kotzen dated April 23, 2013 (Doc. No. 43-10 at
2). By letter dated April 23, 2013, Standard Fire informed Kaminsky that it would not
make further payments on her insurance claim absent certain kinds of proof. L.R.
56(a)(1) Stmt. ¶ 27. On December 17, 2013, Kaminsky submitted further proof of loss.
Id. ¶ 28.
On December 30, 2013, Kaminsky filed the present lawsuit. Id. ¶ 30. On or
about December 31, 2013, Standard Fire responded that it was rejecting the further loss
claimed by Kaminsky for absence of sufficient proof of loss. Id. ¶ 29.
II.

STANDARD OF REVIEW
Granting a motion for summary judgment is proper only if “there is no genuine

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issue of material fact and the moving party is entitled to judgment as a matter of law.”
O’Hara v. Nat’l Union Fire Ins. Co., 642 F.3d 110, 116 (2d Cir. 2011). Thus, the court’s
role in deciding such a motion “is to determine whether genuine issues of material fact
exist for trial, not to make findings of fact.” Id. In making this determination, the court
“must resolve all ambiguities and draw all inferences against the moving party.” Garcia
v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir. 2013).
The moving party bears the burden of establishing the absence of genuine
issues of material fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d
Cir. 2010). If the moving party meets that burden, the party opposing the motion will
only prevail if it sets forth “specific facts” that demonstrate the existence of “a genuine
issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed. R. Civ.
P. 56(e)).
For summary judgment purposes, a genuine issue exists where the evidence is
such that a reasonable jury could decide in the non-moving party’s favor. See Rivera v.
Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012); see also
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (stating that the non-moving
party must point to more than a mere “scintilla” of evidence in its favor). Mere
conclusory statements or allegations are not sufficient to defeat a summary judgment
motion. Davis v. N.Y., 316 F.3d 93, 100 (2d Cir. 2002).

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III.

DISCUSSION
A.

Failure to provide documentation (paid invoices, bills, etc.)

Standard Fire complains that Kaminsky has not complied with a federal
regulation requiring that she “[p]repare an inventory of damaged property showing the
quantity, description, actual cash value, and amount of loss. Attach all bills, receipts,
and related documents.” 44 C.F.R. pt. 61, App. A(1), VII.J.3. See Memorandum of Law
of the Standard Fire Insurance Company in Support of Its Motion for Summary
Judgment (“MSJ Mem.”) (Doc. No. 43-18) at 16–18.2 Standard Fire does not complain
that Kaminsky failed to provide the inventory described, only that she
failed to submit adequate supporting documentation of the items claimed in her
supplemental Proof of Loss [the December 17, 2013 submission] and documents
[proof submitted subsequent to Standard Fire’s December 31, 2013 denial]. . . .
[Kaminsky] provided a contractor’s building estimate, invoices, repair estimates,
proposal and photographs but failed to provide paid invoices, bills or receipts or
detailed repair estimates relating to work she actually completed and related
documentation . . . .”
Id. at 18. In the same paragraph in its Memorandum, Standard Fire gives two citations:
one to a document 31 pages long and one to a document more than 200 pages long.
The court denies summary judgment on this basis because these two sweeping,
conclusory sentences in Standard Fire’s Memorandum—the only ones actually alleging
any facts as to this issue—and the accompanying citations do not present any evidence
that the allegedly missing documents actually exist. Standard Fire implies that
Kaminsky “completed” some kind of “work” for which she might have “invoices, bills[,]
receipts[,] detailed repair estimates . . . and related documentation,” but the court

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All of the court’s citations to pages of the parties’ memoranda are to the CM/ECF system’s
assignment of page numbers rather than counsel’s assignments, to the extent that the two paginations
differ.

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discerns no evidence that any such work occurred, let alone the scope of such work or
how it interacts with the documentation that Kaminsky did in fact provide.3 Accordingly,
this evidence and argument is not sufficient to require that any reasonable jury conclude
that Kaminsky failed to comply with her obligations under the SFIP.
Because Standard Fire has not provided factual support for this argument, the
court does not reach its legal argument that, to the extent Standard Fire has actually
identified a failure by Kaminsky to comply with the terms of the SFIP, the case must be
dismissed as precluded by federal sovereign immunity. See MSJ Mem. at 17.
B.

Failure to provide evidence of repairs/replacements related to prior
insurance claim

Standard Fire also complains that Kaminsky has not provided evidence of what
repairs she made using a prior payout from Standard Fire for losses incurred in
Hurricane Irene. See MSJ Mem. at 18–19.
One SFIP term provides, apparently in accord with the general proposition that
an insured should not be able to claim losses suffered in a prior flood in a claim arising
from a subsequent flood, that an insurer has the “[o]ption[ ] . . . in [its] sole discretion . . .
[to] request, in writing, that [an insured] furnish [the insurer] with [e]vidence that prior
flood damage has been repaired.” 44 C.F.R. pt. 61, App. A(1), VII.K.2.e.
However, summary judgment on the basis that Kaminsky has not provided such
evidence is not appropriate. First, Standard Fire has not cited to evidence that it

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As best the court can discern from the memoranda and statements of material facts submitted
by the parties, neither party at any point attempts to break down the total dollar disputes at issue and
correlate portions of the total disputed amount with the documentary evidence (or lack thereof) supporting
each claimed amount. Without such a breakdown—and with the parties instead giving broad, sweeping
descriptions of the issues—it is extremely difficult for the court to evaluate whether, given the record
evidence available, a reasonable jury might only find in favor of the moving party as to any portion of the
amount of money actually in dispute.

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requested such evidence in writing, as the above quotation from the controlling
regulations reflects is required, but only to possibly-admissible hearsay in its
Independent Adjuster’s Report, (Doc. No. 43-8) at 3, to the effect that Kaminsky’s
“contents loss” claim was “same as last year” and was “found” to contain “no new
contents items that were flood damaged from the 10/29/12 claim.” Second, Kaminsky
does cite to some evidence that she provided the kind of documentation that Standard
Fire requested. See Plaintiff’s Response in Opposition to Defendant’s Motion for
Summary Judgment (Doc. No. 47) at 6 (citing to what appear to be invoices for items
replaced after Hurricane Irene). Third, reliance by Standard Fire on the regulation that
gives it the “option” to request evidence does not establish that an insurer is always
justified in denying coverage based on a failure to provide such evidence. Thus, even
assuming that Standard Fire requested, and Kaminsky declined to provide, evidence of
this kind, these facts do not establish that no reasonable jury could find that Standard
Fire was obligated to reimburse Kaminsky for the losses that she claims. That it would
be nonsensical to impose an absolute bar on claims where the claimant cannot provide
documentary evidence of prior repairs, and that a jury might find that the claimant did
indeed make such repairs or replacements, is especially appropriate where, as here,
the claimant represents that the documentary evidence was destroyed in the very
flooding that resulted in her insurance claim. See id. (citing sworn answers to
interrogatories). For these reasons, summary judgment is inappropriate as to these
claims.

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C.

No compensation for items that were not a physical loss

Standard Fire argues that Kaminsky is not entitled to seek compensation for
“equipment monitoring, temporary toilets, temporary power, storage containers and
permit and engineering fees” because she is “only entitled to payment for damages
directly caused by or from flood”—and, in support of its argument, it cites a number of
cases. MSJ Mem. at 20. Very few of the cases that Standard Fire cites actually come
to any conclusion as to whether the SFIP covers specific examples of losses; instead,
they only conclusorily state that “economic loss” and “consequential damages” are
excluded. One cited case that does come to such a conclusion is Atlas Pallet, Inc. v.
Gallagher, 725 F.2d 131 (1st Cir. 1984). However, that case only stands for the
proposition that “the increase in [the insured’s] fire insurance premium during the time
when [a] sprinkler system was inoperative” is a non-covered “economic loss.” Id. at
139.
The compensations that Kaminsky seeks and of which Standard Fire complains
here, however, appear simply to be itemized costs for a contractor to repair the physical
damages to Kaminsky’s home. To the extent these proposed costs are indeed simply
repair costs and are not otherwise excluded from compensation under the SFIP—as, for
example, by Part V (“Exclusions”) of Appendix A(1) to Part 61, title 44 of the Code of
Federal Regulations, which itself indicates a definition of excluded “economic loss”—
Standard Fire’s conclusory characterization of these costs as outside the scope of those
“directly caused by or from flood,” MSJ Mem. at 20, is unwarranted, and Kaminsky may
seek compensation for them. Accordingly, summary judgment will not enter for
Standard Fire as to these claimed damages.

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D.

No compensation for items outside of basement

Standard Fire also complains that Kaminsky’s “building estimate includes repairs
to the first level of the property” whereas Standard Fire’s adjuster concluded that
flooding only affected the basement. See MSJ Mem. at 20 (citing Independent
Adjuster’s Report at 1). Kaminsky does not respond to this argument in the body of her
Opposition. However, she does respond to it by raising a related Disputed Issue of
Material Fact. See Local Rule 56(a)2 Statement (Doc. No. 47-2), Disputed Issue of
Material Fact No. 6 (“Whether the first level of Plaintiff’s home was damaged by
floodwaters.”). However, simply asserting that a disputed issue of material fact exists is
insufficient, and Kaminsky cites to no evidence in support of this purportedly disputed
issue, while Standard Fire cites to the independent adjuster’s report, which states that
floodwaters only rose to 57 inches in the basement, which was below the first level of
Kaminsky’s home. See also D. Conn. L.R. 56(a)(3) (“Each statement of material fact
. . . in a Local Rule 56(a)2 Statement . . . must be followed by a specific citation to . . .
evidence . . . . [F]ailure to provide specific citations to evidence in the record . . . may
result in the Court deeming certain facts that are supported by the evidence admitted
. . . .”). From this evidence, a reasonable jury could only conclude that Kaminsky’s
claims for damages on the first floor of her home constitute claims for damages not
caused by Superstorm Sandy. Accordingly, summary judgment will enter as to such
damages.
E.

No compensation for non-covered items in basement

Standard Fire also argues that Kaminsky is not entitled to any payment for
certain items in Kaminsky’s basement which, it says, are specifically excluded from

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coverage by the SFIP. See MSJ Mem. at 20–21. Kaminsky does not respond to this
argument. The court “infer[s] from [her] partial opposition that” any claims
corresponding to these arguments “have been abandoned,” and thus grants summary
judgment to Standard Fire as to these claims. Jackson v. Fed. Express, 766 F.3d 189,
198 (2d Cir. 2014).
F.

No recovery of interest

Standard Fire also argues that Kaminsky is not entitled to seek interest on the
compensation she pursues. See MSJ Mem. at 21. Because, as with the prior claim,
Kaminsky does not respond to this argument, the court infers that Kaminsky has
abandoned her claim for interest and grants summary judgment to Standard Fire as to
this claim.
G.

No recovery of attorney’s fees

Finally, Standard Fire contends that, even to the extent that Kaminsky prevails in
this action, she is not entitled to seek attorney’s fees on this basis. See MSJ Mem. at
21–22. Because determinations of liability are incomplete, it would be premature to
determine entitlement to seek attorney’s fees at this time. Summary judgment is denied
on this issue without prejudice to renewed motions on the issue at a later time, at which
point the case law on this contested point of law may perhaps be better developed.
IV.

CONCLUSION
The Motion (Doc. No. 43) is GRANTED IN PART AND DENIED IN PART in

accordance with the foregoing analysis and conclusions.

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SO ORDERED.
Dated at New Haven, Connecticut this 28th day of May 2015.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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