Glory Chapel Int'l Cathedral v. Phila. Indem. Ins. Co.

313 A.3d 1273

224 Conn.App. 501

GLORY CHAPEL INTERNATIONAL CATHEDRAL

v.PHILADELPHIA INDEMNITY INSURANCE COMPANY et al.

(AC 45057)

Appellate Court of Connecticut.

Argued January 10, 2024

Officially Released April 2, 2024

James J. Healy, with whom was Leonard M. Isaac, Waterbury, for the appellant (plaintiff).

Linda L. Morkan, Hartford, with whom were Steven O. Clancy and Scott T. Garosshen, Hartford, for the appellee (named defendant).

Alvord, Cradle and Clark, Js.

CLARK, J.

₅₀₄The plaintiff, Glory Chapel International Cathedral (Glory Chapel), appeals from the judgment ₅₀₅of the trial court rendered in favor of the defendant Philadelphia Indemnity Insurance Company (Philadelphia Indemnity), striking all counts of Glory Chapel’s complaint against Philadelphia Indemnity.¹ On appeal, Glory Chapel claims that (1) the court erred in striking its original complaint on the basis of misjoinder, (2) even if the claims in its original complaint were properly stricken, the court erred by rejecting the substitute complaint that it filed pursuant to Practice Book § 10-44,² and (3) the court erred by sustaining Philadelphia Indemnity’s objection to an offer of compromise that Glory Chapel filed during the pendency of this appeal. For the reasons that follow, we agree with Glory Chapel on its second claim that the trial court improperly rejected its substitute complaint, but we disagree with it on its other claims. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

We begin with relevant facts and procedural history of the case. In September, 2019, Glory Chapel commenced this action by writ of summons and complaint against Philadelphia Indemnity and Kevon Bennett. The complaint alleged that Bennett set fire to a garage adjacent to a church owned by Glory Chapel located at 221 Greenfield Street in Hartford. In their efforts to contain and extinguish the fire, emergency personnel stationed some equipment and personnel on the roof of the church, using large quantities of water to extinguish the fire and protect surrounding property. Despite the best efforts of emergency responders, portions of the church were greatly damaged by fire, water, and smoke. The complaint alleges that, at the time of the resulting ₅₀₆damage, the church was insured against that damage pursuant to an insurance policy issued by Philadelphia Indemnity. Glory Chapel filed a claim with Philadelphia Indemnity and a dispute ensued when Philadelphia Indemnity allegedly paid amounts that were inadequate to compensate Glory Chapel for the true costs of repairs. Glory Chapel’s complaint contains three counts: counts one and two respectively claim breach of contract and breach of an implied covenant of good faith and fair dealing against Philadelphia Indemnity and count three alleges a claim of negligence against Bennett.

On November 12, 2019, Philadelphia Indemnity filed a motion to strike the two claims against it on the ground of misjoinder, arguing that by bringing those counts and the count against Bennett in a single complaint, Glory Chapel improperly joined (1) its contractual coverage dispute with Philadelphia Indemnity stemming from Philadelphia Indemnity’s alleged failure to pay insurance benefits in accordance with the policy and other purported claims handling issues with (2) its negligence action against Bennett for allegedly causing the subject fire. Philadelphia Indemnity argued that Glory Chapel’s claims are "separate actions that do not arise out of the same transaction, and keeping them joined could lead to prejudice and confusion as this case progresses."

On January 2, 2020, Glory Chapel filed its objection to the motion to strike. It argued that the motion to strike lacked merit because the claims raised by Glory Chapel against both defendants arose out of the destruction of Glory Chapel’s property by fire. Glory Chapel argued, among other things, that if the "court were to construe the meaning of transaction so narrowly as to find a breach of insurance contract claim arising from the casualty to be a different transaction than the casualty itself, it would require the parties to file separate lawsuits against their insurers and the tortfeasors in ₅₀₇every case where an insurer promised to protect a policy-holder from the damages that result from a casualty loss caused by a third party. Such a holding would require, for example, a plaintiff injured in a car accident to bring separate suits against his or her underinsured motorist carrier and the tortfeasor." Glory Chapel further argued that Philadelphia Indemnity’s contention that its claims should be brought in a separate suit "not only requires parties to pursue discovery of the same damages in two separate suits, but it also adds as a possibility a need for a third suit if Philadelphia [Indemnity] thereafter decides to assert subrogation claims against the tort [defendant], [Philadelphia Indemnity’s] motion to strike on joinder grounds thus urges the court to enter a ruling that would not only require the parties to conduct largely identical discovery in separate suits but would impair the ability of the tort defendant to try to resolve all claims arising from his misconduct in one suit."

On January 29, 2021, the court, Noble, J., granted Philadelphia Indemnity’s motion to strike counts one and two of the complaint for misjoinder, concluding that the claims against Philadelphia Indemnity did not arise out of the same transaction connected with the same subject of action as the tort claim against Bennett. The court stated, inter alia, that "Glory Chapel’s claim against [Philadelphia Indemnity] involves issues of contractual coverage and claims handling which are completely independent of Bennett’s claimed negligence in causing the initial fire. While the fire and its consequences are common facts to both, this is insufficient to characterize the claims as the ‘same transaction or transactions connected with the same subject of action.’ "

On February 16, 2021, Glory Chapel filed a substitute complaint pursuant to Practice Book § 10-44 that only asserted claims against Philadelphia Indemnity sounding in breach of contract and breach of an implied ₅₀₈covenant of good faith and fair dealing. Unlike the original complaint, the substitute complaint did not assert any claims against Bennett.

On February 25, 2021, Philadelphia Indemnity filed an objection to the substitute complaint, arguing that Philadelphia Indemnity was no longer a party to the action. Philadelphia Indemnity claimed that, pursuant to the court’s decision striking the claims against it on the basis of misjoinder, it had been dropped from the action, requiring Glory Chapel to proceed only against Bennett.

On September 28, 2021, the court, Sheridan, J., sustained Philadelphia Indemnity’s objection. The order stated: "Docket entry #126, if filed as a substitute complaint or as an amended complaint, is inconsistent with the court’s prior ruling on the motion to strike. A proper substitute complaint must be filed within thirty days of this order."

On October 18, 2021, following Glory Chapel’s motion for judgment pursuant to Practice Book § 10-44, the court, Sheridan, J., rendered judgment in favor of Philadelphia Indemnity on the two stricken counts against it. Glory Chapel appealed to this court the following day.

I

Glory Chapel first claims that the trial court erroneously granted Philadelphia Indemnity’s motion to strike on the basis of misjoinder. Glory Chapel argues that a plaintiff’s complaint may join claims against multiple defendants arising from the same "subject of action" and that its claims against Philadelphia Indemnity and Bennett arose from the very same subject of action—the fire that destroyed the church’s roof and other property. Specifically, Glory Chapel claims that the tort claim against Bennett and its contractual claims against Philadelphia Indemnity both turn on an evaluation of the ₅₀₉very same roof damage caused by the very same fire. Philadelphia Indemnity argues both that the court properly struck counts one and two of the original complaint and that Glory Chapel waived its right to ap- peal the merits of the court’s order striking those counts when it filed its substitute complaint. We agree with Philadelphia Indemnity that Glory Chapel waived its right to appeal from the court’s order striking counts one and two of the original complaint when it elected to exercise its right to file a substitute complaint pursuant to Practice Book § 10-44.

[1] Our standard of review is well known. "Construction of the effect of pleadings is a question of law and, as such, our review is plenary." Ross v. Forzani, 88 Conn. App. 365, 368, 869 A.2d 682 (2005).

[2, 3] Our case law makes clear that by filing a substitute complaint, "a plaintiff is said to have waived the right to appeal from the court’s order striking the original complaint." (Emphasis added.) O'Donnell v. AXA Equitable Life Ins. Co., 210 Conn. App. 662, 670, 270 A.3d 751, cert. granted, 343 Conn. 910, 273 A.3d 695 (2022); see also Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981). Indeed, "[a]fter a court has granted a motion to strike, [the plaintiff] may either amend his pleading [pursuant to Practice Book § 10-44] or, on the rendering of judgment, file an appeal. … The choices are mutually exclusive …. " (Internal quotation marks omitted.) Lund v. Milford Hospital, Inc., 326 Conn. 846, 850, 168 A.3d 479 (2017). But once the plaintiff files a substitute complaint, "the ruling on the [original motion to strike] ceases to be an issue." (Internal quotation marks omitted.) Ross v. Forzani, supra, 88 Conn. App. at 369, 869 A.2d 682.

Notwithstanding the foregoing, Glory Chapel argues that the waiver rule should not apply in this case because the trial court rejected its substitute complaint and therefore prevented it from exercising its right to ₅₁₀file a substitute pleading. It claims that "waiver does not arise merely...