Harrigan v. Fid. Nat'l Title Ins. Co.

214 Conn.App. 787

282 A.3d 495

Paul HARRIGAN

v.FIDELITY NATIONAL TITLE INSURANCE COMPANY

AC 44424

Appellate Court of Connecticut.

Argued February 3, 2022

Officially released September 6, 2022

Edward M. Schenkel, Wilton, for the appellant (plaintiff).

Frank B. Velardi, Jr., New Haven, for the appellee (defendant).

Alvord, Alexander and Vertefeuille, Js.

VERTEFEUILLE, J.

The plaintiff, Paul Harrigan, appeals from the judgment of the trial court, following a bench trial, rendered in part in favor of the defendant, Fidelity National Title Insurance Company, in connection with a title insurance policy (title policy) issued by the defendant to the plaintiff. On appeal, the plaintiff challenges the judgment in favor of the defendant only with respect to count two of the operative complaint, the third revised complaint, which alleges that the defendant's conduct in handling an insurance claim filed by the plaintiff pursuant to the title policy violated the Connecticut Unfair Insurance Practices Act (CUIPA); General Statutes § 38a-815 et seq. ; and that such unfair and deceptive acts or practices of the defendant thereby violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Specifically, the plaintiff claims on appeal that (1) the court applied an incorrect standard in its analysis of whether the defendant violated CUIPA by requiring a finding of common-law bad faith by the defendant for the plaintiff to establish a violation of CUIPA, (2) when the proper standard is applied, the record sufficiently demonstrates that the defendant violated the relevant provisions of CUIPA, and (3) the evidence submitted by the plaintiff establishes that the defendant's unfair practices were part of a general business practice, as required under General Statutes § 38a-816 (6).¹ We affirm the judgment of the court, albeit on different grounds.

The court found the following facts in its memorandum of decision: "The plaintiff ... is the owner of a 1.52 acre piece of residential property known as 27 Brook Road ... in Woodbridge .... The western boundary of [the plaintiff's] ... property abuts a piece of residential property known as 25 Brook Road. ... The aforementioned properties known as 25 Brook Road and 27 Brook Road were once one parcel .... On September 29, 1969, Helen Greene transferred the properties to James [Weir] and Margery Weir. ... On March 6, 1979, James Weir quitclaimed his interest in the properties to Margery Weir. ... In 1998, Margery Weir subdivided the properties into parcels of relatively equal size and transferred the 25 Brook Road parcel to Woodbridge Country Homes. She retained ownership of the 27 Brook Road parcel. ...

"The aforementioned transfer of the 25 Brook Road parcel from Margery Weir to Woodbridge Country Homes included an area approximately 0.2 acres ... in size that runs along the boundary between the 25 Brook Road and 27 Brook Road properties and is shaped like a long, thin football ... [disputed area]. This area is undeveloped, featuring trees and brush. ... By warranty deed dated August 18, 1999, Woodbridge Country Homes transferred the 25 Brook Road property, including the disputed area, to Ron [Nudel] and Debra Nudel. ... By warranty deed dated July 23, 2008, Margery Weir transferred the 27 Brook Road property to [the plaintiff] ... in this matter. The warranty deed's description of the 27 Brook [Road] property's boundary with the 25 Brook Road property lacks clarity, making it unclear whether the deed purports to transfer the disputed area to [the plaintiff]. ...

"At the time of [the plaintiff's] purchase of the 27 Brook Road property, he was under a good faith belief that his purchase included the disputed area. ... As part of the foregoing transfer, [the defendant] ... issued [an] owner's title insurance policy ... to [the plaintiff] in relation to his ownership interest in the 27 Brook Road property. ... [The plaintiff] purchased the 27 Brook Road property with the intention of renovating and expanding the existing house on the property and then selling it. ... In furtherance of [his] efforts to improve the existing house on the property, [the plaintiff] commissioned a survey that resulted in the creation of a site plan dated March 26, 2009.... Upon reviewing the site plan, [the plaintiff] first recognized that a potential issue existed regarding ownership of the disputed area, but he continued to possess a good faith belief that he held title to the area. ...

"[The plaintiff] eventually completed a renovation that nearly doubled the size of the existing house on the 27 Brook Road property. He entered into a listing agreement with Coldwell Banker on May 20, 2011, marketing the property for $1.2 million .... During the period when [the plaintiff] had the 27 Brook Road property on the market, he contacted James Nugent, the attorney who represented him when he purchased the property, and inquired about whether issues regarding ownership of the disputed area could potentially interfere with a closing were he to secure a buyer. ...

"Sometime in the late fall of 2011, [the plaintiff] conclusively learned that he did not, in fact, hold title to the disputed area. ... By letter to [the defendant] dated December 3, 2011, [the plaintiff] made a claim upon his title insurance policy regarding the disputed area. ... [The defendant] initially assigned Senior Claims Counsel Jeffrey Hansen to handle [the plaintiff's] claim. ... By letter to [the plaintiff] dated January 5, 2012, [the defendant] acknowledged receipt of his claim. ... By letter to [the plaintiff] dated February 3, 2012, [the defendant] essentially accepted his claim. At no time during the subsequent protracted negotiations between the parties regarding [the plaintiff's] claim did [the defendant] indicate any unwillingness to pay the claim. Rather, the issue between the parties always involved the claim's value. ...

"[The defendant] subsequently decided to commission an appraisal designed to yield a figure representing the diminution in value of [the plaintiff's] property as a result of the loss of the disputed area. ... Subsequent to [the defendant's] decision to commission the appraisal, its personnel engaged in internal discussions regarding what date should be considered the date of loss upon which the diminution in value figure should be based. They attempted to reach out to [the plaintiff] regarding the issue without apparent success. ... There is no evidence that [the defendant] actively pursued the possibility of purchasing the disputed area from the owners of 25 Brook Road. ...

"The appraisal commissioned by [the defendant] eventually issued on June 5, 2012. It was prepared by Barbara Pape ... [Pape appraisal] and quantified the property's [diminution in] value by virtue of the loss of the disputed area as $17,500, assigning the property a value of $332,000 with the disputed area and $314,500 without it. At [the defendant's] direction ... Pape used March 26, 2009, as the date of loss, which was the date the plaintiff first recognized that a potential issue existed regarding ownership of the disputed area based on his review of the aforementioned site plan. ...

"On July 6, 2012, [the defendant] forwarded to [the plaintiff] a copy of the Pape appraisal, together with a check in the amount of $17,500. Apparent difficulties arose surrounding delivery of the appraisal and the check, so [the plaintiff] did not receive them until several weeks later. ... By letter to [the defendant] dated September 7, 2012, [the plaintiff] took exception, in great detail, to the methods ... Pape employed in arriving at the [diminution in] value figure in her appraisal. ... By letter dated October 10, 2012 ... Pape responded to some of the concerns regarding her appraisal that [the plaintiff] raised in his September 7, 2012 letter. [The defendant] did not forward ... Pape's letter to [the plaintiff] until December 22, 2012.... Over the next few months, the parties exchanged frequent correspondence in an attempt to reach an agreement regarding the [diminution in] value of the property. ... One of [the plaintiff's] major concerns during this period was the alleged impact that the loss of the disputed area had on the property's septic system. While the evidence indicates that the [septic] system is not located in the disputed area, [the plaintiff] repeatedly expressed concern that the disputed area is the location where a replacement system could be most economically located in the event the current system needs to be replaced. ...

"By letter dated March 13, 2013, [the defendant] informed [the plaintiff] that [it was] reassigning responsibility for his claim to Assistant Claims Counsel Cassandra Dorr. ... By letter dated April 29, 2014, [the defendant] offered [the plaintiff] $29,500 to resolve his claim. ... By email dated June 26, 2014, [the defendant] offered [the plaintiff] an additional $500.... At some point prior to February 4, 2015, [the plaintiff] made a demand of $73,456 to resolve his claim. ... In May, 2015, [the plaintiff] retained appraiser Charles Liberti to perform a diminution in value appraisal on the property. Around the same time, [the plaintiff] also retained Attorney Max Case to represent him [with] regard to his claim. ...

"Liberti produced an appraisal dated February 10, 2016 ... [Liberti appraisal], which quantified the property's [diminution in] value as $92,000 by virtue of the loss of the disputed area, assigning the property a value of $920,000 with the disputed area and $828,000 without it. At [the plaintiff's] direction ... Liberti used December 3, 2011, as the date of loss, which was the date the plaintiff indicates that he conclusively learned that he did not own the disputed area and made his claim to [the defendant]. ... Liberti did not factor in any issues regarding the septic system in arriving at the $92,000 [diminution in] value figure. He attributed the vast difference in the property...