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RICHARD PALKIMAS v. STATE FARM FIRE AND

CASUALTY COMPANY

(AC 35462)

DiPentima, C. J., and Keller and West, Js.

Argued February 3—officially released June 3, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Sommer, J.)

John R. Williams, for the appellant (plaintiff).

Daniel J. Krisch, with whom, on the brief, were Daniel P. Scapellati and Susan M. Kirkeby, for the appellee (defendant).
Opinion

WEST, J. This appeal arises from a breach of contract

claim filed by the plaintiff, Richard Palkimas, against

the defendant, State Farm Fire & Casualty Company, for

the defendant’s failure to provide coverage for damage

caused to the plaintiff’s home by a ruptured sanitary

pipe. The court rendered summary judgment in favor

of the defendant on the ground that the plaintiff failed

to submit a proof of loss as required underthe insurance

contract. In this appeal, the plaintiff claims that the

court improperly rendered summary judgment in favor

of the defendant because the defendant failed to prove

that it was prejudiced by the plaintiff’s failure to submit

a proof of loss. We are not persuaded and, therefore,

affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. At the time of the

incident in question, the plaintiff had a homeowners

insurance policy issued by the defendant. In September,

2006, the plaintiff suffered damage to his property

‘‘when workers negligently used a toilet that had been

blocked off resulting in a buildup of sewage, and the

breaking and rupturing of a sanitary pipe, as well as

the spreading of sewage and fecal matter throughout

the home.’’ In January, 2007, while attempting to repair

the damaged sanitary pipe, the plaintiff discovered that

‘‘freezing temperatures caused substantial damage to

[his] home, including fracturing of the plaster walls and

building structure.’’

The plaintiff notified the defendant ofthe two claimed

losses, but never filed a proof of loss for those claims.

With respect to the claimed loss from September, 2006,

the plaintiff hired a public adjustor, Allen Sabel, to

negotiate with the defendant on his behalf. The defendant ultimately denied coverage for both claimed losses

and damages, citing the plaintiff’s failure to submit a

proof of loss as required under the policy.1

In a two

count complaint dated January 23, 2009, the plaintiff

alleged that the defendant breached the insurance policy by denying coverage for both claimed losses and

damages.

The plaintiff also brought an action against Sabel,

Sabel Adjustors, LLC, and Sabel & Associates, Inc.

(Sabel defendants), alleging failure to negotiate with the

insurance companies—the defendant and Nationwide

Insurance Company—on the plaintiff’s behalf. He

brought another action against Nationwide Insurance

Company and Oscar Fernandez, alleging that Fernandez

and his workers negligently caused the damage to the

plaintiff’s home. The court, Radcliffe, J., granted the

Sabel defendants’ motion to consolidate the three

actions.

On October 10, 2012, the defendant filed a motion

for summary judgment claiming that it was entitled
to judgment as a matter of law because the plaintiff

breached a condition precedent of coverage by failing

to submit a proof of loss. The Sabel defendants filed a

memorandum of law in opposition to the defendant’s

motion for summary judgment, claiming that summary

judgment was not warranted because there remained

a genuine issue of material fact as to whether the defendant was prejudiced by the plaintiff’s failure to submit

a proof of loss. The plaintiff subsequently filed a supplementary brief in opposition to the defendant’s motion

for summary judgment fully adopting the arguments set

forth in the Sabel defendants’ memorandum of law in

opposition to the defendant’s motion for summary judgment. The defendant submitted a supplemental memorandum of law in support of its motion for summary

judgment claiming that it was not required to prove

prejudice because the plaintiff never submitted a proof

of loss.

On January 18, 2013, the court, Sommer, J., issued

a memorandum of decision granting the defendant’s

motion for summary judgment. In reaching its decision,

the court determined that ‘‘an insured must file a proof

of loss prior to making a claim against his insurance

company and prior to bringing suit if the insurance

company denies the claim, but if the insured belatedly

submits a proof of loss and the policy does not specifically state that doing so is grounds for denial,the insurer

must prove that the late submission caused some prejudice.’’ The court found that this is not a case in which

the plaintiff belatedly submitted a proof of loss; rather,

it is a case in which the plaintiff never submitted a

proof of loss, and, thus, the defendant’s burden to prove

prejudice never arose. The court concluded, therefore,

that the plaintiff failed to satisfy a condition precedent

of the insurance policy, and, accordingly, granted the

defendant’s motion for summary judgment. This

appeal followed.

The plaintiff claims that the court improperly granted

the defendant’s motion for summary judgment because

‘‘[a]n insurer has the burden of proving prejudice when

it refuses to compensate for a covered loss on the

ground that the insured failed to submit a sworn proof

of loss statement.’’ He contends, therefore, that because

there remains a genuine issue of material fact as to

whether the defendant was prejudiced, summary judgment was not warranted.

‘‘Our standard of review of a trial court’s decision to

grant a motion for summary judgment is well established. . . . The judgment sought 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. . . . A material fact is a

fact that will make a difference in the result of the case.

. . . The facts at issue are those alleged in the plead-
ings. . . . The party seeking summary judgment has

the burden of showing the absence of any genuine issue

as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a

matter of law. . . . [T]he party adverse to such a

motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material

fact. In deciding a motion for summary judgment, the

trial court must view the evidence in the light most

favorable to the nonmoving party. . . . The test is

whether a party would be entitled to a directed verdict

on the same facts. . . . Finally, [o]ur review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Citation omitted; internal quotation marks omitted.) Recall Total Information Management, Inc. v. Federal Ins. Co., 147 Conn. App. 450,

456–57, 83 A.3d 664, cert. granted in part on other

grounds, 311 Conn. 925, 86 A.3d 469 (2014).

Our decision turns on the distinction between a

delayed filing of a proof of loss and a failure to file a

proof of loss. The plaintiff does not dispute the fact

that he failed to submit to the defendant a proof of loss

as required under the insurance policy. This concession

is fatal to his claim on appeal, as we cannot find any

case law from our appellate courts that requires an

insurer to prove prejudice following an insured’s failure

to submit a proof of loss under an insurance policy.

The plaintiff relies on three cases from our Supreme

Court in support of his claim; however, those cases are

readily distinguishable from the case at hand insofar

as they pertain to a delayed filing of notice of a claim

or a proof of loss, and not the failure to file a proof of

loss. See Arrowood Indemnity Co. v. King, 304 Conn.

179, 39 A.3d 712 (2012) (discussing delayed filing of

notice of claim); Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988) (same), overruled in part on other grounds by Arrowood Indemnity

Co. v. King, supra, 179; Elberton Cotton Mills, Inc. v.

Indemnity Ins. Co., 108 Conn. 707, 145 A. 33 (1929)

(discussing delayed filing of proof of loss).

In light of the plaintiff’s failure to provide any persuasive support for his claim on appeal, we conclude that

the court properly granted the defendant’s motion for

summary judgment.2

The judgment is affirmed.

In this opinion the other judges concurred.

1 The proof of loss provision set forth in the insurance policy provides

as follows: ‘‘After a loss to which this insurance may apply, you shall see

that the following duties are performed . . . e. submit to us, within 60

days after the loss, your signed, sworn proof of loss which sets forth, to

the best of your knowledge and belief: (1) the time and cause of loss;

(2) interest of the insured and all others in the property involved and all

encumbrances on the property; (3) other insurance which may cover the

loss; (4) changes in title or occupancy of the property during the term of

this policy; (5) specifications of any damaged building and detailed estimates

for repair of the damage; (6) an inventory of damaged or stolen personal

property . . . (7) receipts for additional living expenses incurred and
records supporting the fair rental value loss; and (8) evidence or affidavit

supporting a claim under the Credit Card, Bank Fund Transfer Card, Forgery

and Conterfeit Money coverage, stating the amount and cause of loss.’’

(Emphasis omitted.)

2 We note that Aetna Casualty & Surety Co. and Arrowood Indemnity

Co. are further distinguishable from the present case because they pertain

to the filing of notice of a claim under an insurance policy, whereas the

present case pertains to the filing of a proof of loss under an insurance policy.