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NEW LONDON COUNTY MUTUAL INSURANCE

COMPANY v. ANDREW SIELSKI ET AL.

(AC 36792)

DiPentima, C. J., and Prescott and Bear, Js.

Argued May 14—officially released September 15, 2015

(Appeal from Superior Court, judicial district of

Hartford, Wiese, J.)

Glenn E. Knierim, Jr., for the appellant (named

defendant).

MaryKate J. Geary, with whom, on the brief, was

Matthew G. Conway, for the appellee (plaintiff).
Opinion

BEAR, J. This appeal arises out of a declaratory judgment action in which the plaintiff, New London County

Mutual Insurance Company, asserted that it did not

have a duty to defend the insured defendant Andrew

Sielski in a separate action brought by Meghan Wishneski and James Wishneski (Wishneskis) against the

defendant.1 On appeal, the defendant claims that the

trial court improperly (1) rendered summary judgment

in favor of the plaintiff because the damages claimed

in the separate action were property damages as defined

in the defendant’s homeowners insurance policy (policy) with the plaintiff, and (2) determined that the question of whether the alleged damages constituted

property damages within the meaning of the policy was

a question of law rather than a question of fact. We

affirm the judgment of the trial court.

The following facts and procedural history are relevant to the present appeal. On May 11, 2011, the Wishneskis commenced an action against the defendant

(Wishneski action).2

In their seven count, second

amended complaint dated February 22, 2013, the Wishneskis alleged that they had entered into a contract to

buy a residential property from the defendant. As part

of his contractual obligations, the defendant completed

a disclosure report, which included representations that

he had no knowledge of any problems concerning basement water seepage,rot and water damage, water drainage problems, or driveway problems. After the

Wishneskis purchased the property, however, they

encountered a variety of problems, including drainage

problems on the perimeter of the property, water coming into the property, and severe flooding that washed

away their driveway. They also discovered rotten and

moldy beams in the basement. The Wishneskis alleged

that the defendant knew or should have known of these

issues and misrepresented the condition of the home

because of the exposure of the property to severe flooding during the period that the defendant owned it, and

the Wishneskis’ discovery of newer beams attached to

older moldy and rotten beams in the basement. The

Wishneskis alleged seven theories of recovery, all of

which were predicated on the alleged misrepresentations of the defendant.

On June 6, 2011, and June 11, 2012, the plaintiff commenced this action against the defendant and the Wishneskis, respectively. In its December 19, 2012 amended

complaint, the plaintiff alleged that although the defendant had a policy with it that was operative from February 28, 2007, until it was cancelled effective March 13,

2009, the date of the closing of the sale of the property

to the Wishneskis, no claims alleged in the Wishneski

action required it to defend or indemnify the defendant.

On April 8, 2013, the plaintiff filed a motion for sum-
mary judgment on the ground that there was no genuine

issue of material fact in dispute and that the court could

determine as a matter of law whether the plaintiff had

a duty to defend or indemnify the defendant. On April

17, 2014, the courtrendered summary judgment in favor

of the plaintiff on its amended complaint, holding, inter

alia, that the theory of negligent misrepresentation and

resulting injury alleged in the Wishneski action did not

constitute property damage as defined in the policy.3

This appeal followed. Additional facts will be provided

as necessary.

I

The defendant first claims that the court improperly

rendered summary judgment in favor of the plaintiff

because the alleged damages claimed in the Wishneski

action as a result of the defendant’s alleged misrepresentations constituted property damage within the

meaning of the policy. The defendant relies heavily on

Capstone Building Corp. v. American Motorists Ins.

Co., 308 Conn. 760, 67 A.3d 961 (2013), and argues that

our Supreme Court’s decision in Capstone Building

Corp. controls this case. The defendant argues that in

Capstone Building Corp., the court interpreted policy

definitions of ‘‘occurrence’’ and ‘‘property damage’’ similarly to those found in the policy at issue in the present

case and found that an insurable injury had been

alleged. Thus, the defendant argues that his alleged

misrepresentations and the harm that allegedly resulted

from them constitute both an occurrence and property

damage within the coverage of the policy in the present

case. We disagree.

We begin by setting forth the standard of review and

legal principles that inform our analysis. ‘‘With respect

to summary judgment, our standard of review is well

established. Summary judgment rulings present questions of law; accordingly, [o]ur review of the . . . decision to grant [a] . . . motion for summary judgment is

plenary. . . . In addition, the interpretation of an insurance contract presents a question of law, over which

our review is plenary. . . . Finally, with respect to an

insurer’s duty to defend a claim brought against the

insured, [t]he question of whether an insurer has a duty

to defend its insured is purely a question of law, which

is to be determined by comparing the allegations of

[the] complaint with the terms of the insurance policy.’’

(Citations omitted; internal quotation marks omitted.)

Misiti, LLC v. Travelers Property Casualty Co. of

America, 308 Conn. 146, 154, 61 A.3d 485 (2013).

‘‘Under the well established four corners doctrine,

the duty to defend is broaderthan the duty to indemnify.

. . . An insurer’s duty to defend is triggered if at least

one allegation of the complaint falls even possibly

within the coverage. . . . Indeed, [i]t is well established . . . that a liability insurer has a duty to defend

its insured in a pending lawsuit if the pleadings allege
a covered occurrence, even though facts outside the

four corners of those pleadings indicate that the claim

may be meritless or not covered. . . . The obligation

of the insurer to defend does not depend on whether

the injured party will successfully maintain a cause of

action against the insured but on whether he has, in

his complaint, stated facts which bring the injury within

the coverage. If the latter situation prevails, the policy

requires the insurer to defend, irrespective of the

insured’s ultimate liability. . . . In contrast to the duty

to defend, the duty to indemnify is narrower: while the

duty to defend depends only on the allegations made

against the insured, the duty to indemnify depends upon

the facts established at trial and the theory under which

judgment is actually entered in the case. . . . Thus, the

duty to defend is triggered whenever a complaint alleges

facts that potentially could fall within the scope of coverage . . . .’’ (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands

Ins. Co., 312 Conn. 714, 739, 95 A.3d 1031 (2014).

‘‘Because the duty to defend is significantly broader

than the duty to indemnify, where there is no duty to

defend, there is no duty to indemnify . . . .’’ (Internal

quotation marks omitted.) DaCruz v. State Farm Fire &

Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).

The question of whether the alleged damages in the

present case constitute property damage as defined in

the policy requires this court to interpret the policy.

‘‘An insurance policy is to be interpreted by the same

generalrules that govern the construction of any written

contract . . . . In accordance with those principles,

[t]he determinative question is the intent of the parties,

that is, what coverage the . . . [insured] expected to

receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . . If the terms

of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be

deduced, must be accorded its natural and ordinary

meaning. . . . Under those circumstances, the policy

is to be given effect according to its terms. . . . When

interpreting [an insurance policy], we must look at the

contract as a whole, consider all relevant portions

together and, if possible, give operative effect to every

provision in order to reach a reasonable overall result.’’

(Internal quotation marks omitted.) Lexington Ins. Co.

v. Lexington Healthcare Group, Inc., 311 Conn. 29,

37–38, 84 A.3d 1167 (2014).

In the present case, section II, coverage E, of the

policy defines the defendant’s liability coverage. It provides, in relevant part, that the plaintiff will defend and

indemnify the defendant ‘‘[i]f a claim is made or a suit

is brought . . . for damages because of ‘bodily injury’

or‘property damage’ caused by an ‘occurrence’ to which

this coverage applies . . . .’’ The policy defines an

‘‘occurrence’’ as ‘‘an accident, including continuous or

repeated exposure to substantially the same general
harmful conditions, which results, during the policy

period, in: a. ‘Bodily injury’; or b. ‘Property damage.’ ’’

’’Property damage,’’ in turn, is defined as ‘‘physical

injury to, destruction of, or loss of use of tangible

property.’’

Neither this court nor our Supreme Court has

addressed whether damages arising from a negligent

misrepresentation may be considered property damage

or under what circumstances a negligent misrepresentation can give rise to an occurrence within the meaning

of a homeowners insurance policy. Decisions from our

Superior Court have uniformly held that damages flowing from misrepresentations are not property damage

as that term is normally used in homeowners insurance

policies. See Amica Mutual Ins. Co. v. Paradis, Superior Court, judicial district of Hartford, Docket No. CV13-6041224-S (October 16, 2014) (59 Conn. L. Rptr. 151,

153) (claim in underlying action not property damage

because ‘‘the alleged misrepresentations could not have

caused the property damage; the alleged physical flaws

in the property necessarily predated and were the subject of the misrepresentations’’) (appeal to Appellate

Court, AC 37353, withdrawn June 30, 2015); Amica

MutualIns. Co. v. Basu, Superior Court, judicial district

of Hartford, Docket No. CV-12-6034435-S (December

20, 2013) (57 Conn. L. Rptr. 340, 340, 342) (nondisclosure and concealment of preexisting cracks in basement

walls that became worse after buyer purchased house

predated defendant’s acts and held not to be claim for

property damage); Electric Ins. Co. v. Santo, Superior

Court, judicial district of Waterbury, Docket No. CV06-4011494-S (August 6, 2007) (44 Conn. L. Rptr. 41,

43–44) (misrepresentations concerning whether wood

stove and chimney were functional were not claims for

property damage). Relying on this trial court authority,

the United States District Court for the District of Connecticut similarly has held that any damages arising

from negligent misrepresentations were economic damages, rather than property damage within the ambit of

an insurance policy. See Homestead Country Properties, LLC v. American Modern Home Ins. Co., Docket

No. 3:12CV1003 (JBA), 2013 WL 3716383, *4 (D. Conn.

July 12, 2013).

In response to this court’s questions during oral argument about how he would respond to the principles in

the previously cited authority, the defendant argued

that Capstone Building Corp. has rendered the legal

theory on which those cases relied invalid. In Capstone

Building Corp., our Supreme Court addressed on certification from the United States District Court for the

Northern District of Alabama, inter alia, ‘‘[w]hether

damage to a project contracted to be built, which was

caused by defective construction or faulty workmanship associated with the construction project, may constitute property damage resulting from an occurrence,

triggering coverage under a commercial general liability
insurance policy . . . .’’ (Internal quotation marks

omitted.) Capstone Building Corp. v. American Motorists Ins. Co., supra, 308 Conn. 771. The court held that

the defective construction as a volitional, albeit negligent, act was not per se excluded from the insurance

policy’s definition of an occurrence. Id., 776. It also

concluded that physical damages caused by the defective work, such as water and mold damage, could qualify

as ‘‘ ‘[p]hysical injury to tangible property,’ ’’ but that

property damage within the coverage of the policy at

issue did not include the escape of carbon monoxide

alone, the defective work itself, or the cost of repairing

defective work to prevent future harm to the property.

Id., 779–87.

In analyzing whether the alleged injuries could be

considered property damage, however, our Supreme

Court did not have any reason to address the issue of

whether there was any damage to the property that

preexisted the asserted occurrence or a third party’s

damages that flowed from a purported misrepresentation of fact concerning past damage to, or defect in,

tangible property that would be considered property

damage under the policy. See id., 777–87. Further, there

were no disputes between the parties regarding any

causal connection between the alleged activity and the

asserted property damage; rather, the certified question

before the court assumed that the defective work itself

was the cause of the injury suffered. See id., 771. Thus,

despite some cursory similarities, we find that Capstone

Building Corp. is readily distinguishable from the circumstances of the present case.

Numerous courts outside this state have addressed

the issue of whether misrepresentation claims are covered by a homeowners or commercial general liability

insurance policy. Though these courts have analyzed

that issue in a number of ways, a few distinct trends

can be discerned. A number of courts have concluded,

similarly to our Superior Court, that damages resulting

from misrepresentations are economic or contractual

in nature and do not give rise to property damages

within the coverage of the relevant policy. For instance,

in St. Paul Fire & Marine Ins. Co. v. Lippincott, 287

F.3d 703, 706 (8th Cir. 2002), the court held that misrepresentations concerning, and efforts to conceal, structural cracks were not property damage giving rise to a

duty to defend in a separate action because these

actions did not create the damage in question. As the

court noted, ‘‘[t]he structural flaws in the house constitute tangible property damage, but these flaws predate

the occurrence of concealments and misrepresentations by which the [defendants] incurred liability.’’ Id.

The court concluded that the judgment encompassed

‘‘the intangible losses incurred when the [third parties]

relied to their economic detriment upon the misrepresentations. These damages are pecuniary in nature and

are not property damage within the meaning of the . . .
insurance policies.’’ Id.

In holding that no property damage had been alleged

within the terms of a homeowners insurance policy,

the court in USAA Casualty Ins. Co. v. Bateman, United

States District Court, Docket No. 2:07-CV-3700 (E.D.

Pa. October 30, 2008), stated: ‘‘The acts at issue in the

underlying lawsuit amounted to a misrepresentation of

the status of the home, whether it be intentional or

negligent. At no point did [the defendant’s] acts ever

inflict damage on the home that was not already in

existence prior to the acts in question. Similarly, [the

defendant’s] acts did not even limit the use of the home

for the [u]nderlying [p]laintiffs. While the alleged acts

did impose on the [u]nderlying [p]laintiffs some harm,

the ‘tangible property’ here was not changed in any way

by the misrepresentation. The house was in the same

state prior to the sale as it was after the sale. The only

harm that occurred was that the [u]nderlying [p]laintiffs

did not purchase the home they expected to purchase.

This, however, does not constitute ‘property damage.’ ’’

(Emphasis added.) Accord State Farm Lloyds v. Kessler, 932 S.W.2d 732, 737 (Tex. App. 1996) (‘‘The [third

parties’] petition . . . describe[s] drainage and foundation problems. But those problems are not ‘property

damage’ for which the [defendants] are legally liable

because the [third parties] do not assert that the [defendants] injured the property, destroyed the property,

or caused the resulting loss of use. Instead, the [third

parties] allege that the [defendants] misrepresented the

problems. The [defendants’] alleged misrepresentations

did not cause the drainage and foundation problems;

those problems existed before negotiations began.’’

[Emphasis in original.]), writ denied (June 12, 1997);

Aluise v. Nationwide Mutual Fire Ins. Co., 218 W.

Va. 498, 501, 506–507, 625 S.E.2d 260 (2005) (cracks

in foundational walls and moisture buildup related to

misrepresentation claims merely economic losses and

therefore not covered property damage within policy

terms).

Other courts have held that there was no coverage

under a homeowners or commercial general liability

insurance policy for other reasons. In some circumstances, the courts relied on the presence of a volitional

act to hold that no accident took place and, therefore,

there was no occurrence, even if the act was predicated

on a mistake. See Everson v. Lorenz, 280 Wis. 2d 1, 16,

695 N.W.2d 298 (2005). Courts also have refused to find

a causal link between any misrepresentation and the

purported property damage. See, e.g., Colony Ins. Co.

v. Montecito Renaissance, Inc., Docket No. 8:09-CV1469-T-30MAP, 2011 WL 4529948, *6 (M.D. Fla. September 30, 2011) (no occurrence in commercial general

liability insurance policy where ‘‘alleged failure of

[d]eveloper and others to make adequate and truthful

disclosures in the [p]rospectus did not cause any of

the alleged physical defects . . . [because] any . . .
physical damage [to the condominium complex] was

caused by defective construction, and/or maintenance

of the property’’ [emphasis in original]); Boggs v. Great

Northern Ins. Co., 659 F. Supp. 2d 1199, 1212 (N.D. Okla.

2009) (although misrepresentations may have caused

purchase of house, no occurrence found where plaintiffs’ ‘‘alleged misrepresentations had no effect on the

condition of the fireplaces, because the fireplaces were

defective when the house was built’’);4 State Farm

Fire & Casualty Co. v. Gwin, 658 So. 2d 426, 427–28

(Ala. 1995)(misrepresentations about property infested

with termites, leaky roof, and defective electrical wiring

did not cause those damages); Everson v. Lorenz, supra,

27 (no ‘‘ ‘causation nexus’ between property damage

and alleged actions because the ‘property damage’ . . .

was caused by the preexisting 100-year flood plain, not

by any presale misrepresentation’’).5

Finally, in a case not involving the interpretation of

an insurance policy, our Supreme Court relied on the

Restatement (Second) of Torts in discussing the type

of damages arising from a negligent misrepresentation:

‘‘Section 552B (1) of the Restatement (Second) of Torts

provides: The damages recoverable for a negligent misrepresentation are those necessary to compensate the

plaintiff for the pecuniary loss to him of which the

misrepresentation is a legal cause, including (a) the

difference between the value of what he has received

in the transaction and its purchase price or other value

given for it; and (b) pecuniary loss suffered otherwise

as a consequence of the plaintiff’s reliance upon the

misrepresentation.’’ (Emphasis added; internal quotation marks omitted.) Updike, Kelly & Spellacy, P.C. v.

Beckett, 269 Conn. 613, 645 n.25, 850 A.2d 145 (2004).

In the present case, the gravamen of the Wishneskis’

claim of negligent misrepresentation is that, in the

course of selling the home, the defendant was required

to submit to the Wishneskis a residential property disclosure report. In that report, the defendant claimed

that he had no knowledge of any problems relating to

the property including water seepage, rot and water

damage, water drainage problems, and driveway problems. The Wishneskis relied on these representations

and purchased the property on March 13, 2009. The

defendant’s representations were false or inaccurate,

which the Wishneskis discovered only after they purchased and occupied the property. The property suffered from preexisting conditions, problems, and

defects including susceptibility to flooding, inadequate

water drainage, mold, rot, and other uncorrected water

damage. Although the Wishneskis’ alleged damages

arose from these undisclosed conditions, problems, and

defects, the gravamen of their claim is that they suffered

economic and pecuniary damages as a result of the

defendant’s alleged misrepresentations which induced

them to purchase the property. As in many of the cases

previously discussed, the alleged conditions, problems,
and defects existed prior to the defendant’s alleged

misrepresentations, and subsequent incidents causing

damage after the Wishneskis purchased the property

were the result of those preexisting conditions, problems, and defects.

On the basis of our review of the record and relevant

case law, we are persuaded that the court properly

determined that the damages claimed by the Wishneskis

as a result of the defendant’s alleged misrepresentations

constituted economic or pecuniary losses, and not property damage within the ambit of the coverage of the

policy. See, e.g., Aluise v. Nationwide Mutual Fire Ins.

Co., supra, 218 W. Va. 506 (‘‘damages flowing from misrepresentation . . . have no basis [as] property damage; rather, the only cognizable damages from such

torts are economic and contractual in nature and as

such do not fall within the scope of coverage afforded

by [homeowners] policies . . . .’’ [internal quotation

marks omitted]). The court, therefore, properly concluded that the plaintiff did not have a duty to defend

the defendant under these circumstances.

Even if we were to consider the Wishneskis’ alleged

damages resulting from the defendant’s alleged misrepresentations as property damage as that term is defined

within the policy, we agree with those courts that have

held that misrepresentations under similar circumstances cannot be considered to cause in actual fact

or proximately the damages in question. ‘‘Traditionally,

an action for negligent misrepresentation requires the

plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or

should have known was false, and (3) that the plaintiff

reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.’’ Nazami v. Patrons

Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006)

(liability for negligent misrepresentation can be predicated on misrepresentation of fact ‘‘that the defendant

. . . should have known was false’’); compare Capstone Building Corp. v. American Motorists Ins. Co.,

supra, 308 Conn. 775 (‘‘[a] deliberate act, performed

negligently, is an accident if the effect is not the

intended or expected result; that is, the result would

have been different had the deliberate act been performed correctly’’ [internal quotation marks omitted]).

The policy here requires that the accident ‘‘results . . .

in’’ or ‘‘cause[s]’’ the property damages for the duty

to defend to arise. Although the Wishneskis’ alleged

economic and pecuniary damages derive from theirreliance on the defendant’s alleged misrepresentations,

none of the damage to the property was caused in fact

or proximately by the defendant’s misrepresentations.

See Langevin v. Allstate Ins. Co., 66 A.3d 585, 590–91

(Me. 2013) (where complaint alleged damages caused

by negligent misrepresentations, to be covered under

policy, physical damage to property must have directly

resulted from negligent misrepresentations). The Wish-
neskis may have purchased the property as a direct

result of the defendant’s alleged misrepresentations,

but the actual property damage would have existed with

or without such misrepresentations or the Wishneskis’

purchase. The alleged negligent misrepresentations,

therefore, were not the actual or proximate cause of

the damage to the property. See id., 591 (‘‘damages for

undisclosed physical problems are not covered by the

policy because those physical problems did not result

from the ‘occurrence’ alleged in the underlying complaint’’), citing Veilleux v. National Broadcasting Co.,

206 F.3d 92, 123–24 (1st Cir. 2000), and 3 Restatement

(Second), Torts § 552B (1977); see also Winn v.

Posades, 281 Conn. 50, 56–57, 913 A.2d 407 (2007) (both

actual and proximate causation required to make out

legal cause in negligence claim).6

Our Supreme Court has stated that ‘‘[it] will not predicate the duty to defend on a reading of a complaint

that is . . . conceivable but tortured and unreasonable. . . . Thus, although an insurer is not excused

from its duty to defend merely because the underlying

complaint does not specify the connection between the

stated cause of action and the policy coverage . . . the

insurer has a duty to defend only if the underlying

complaint reasonably alleges an injury that is covered

by the policy.’’ (Citations omitted; emphasis omitted;

internal quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co. of America, supra, 308

Conn. 156. As stated in another context, a sequential

relationship, without more, is insufficient to show the

requisite causal connection. See id., 163 n.11. Consequently, we conclude that the court properly determined that there was no duty to defend.7

II

Next, the defendant claims that the trial courtimproperly determined that the question of whether the damages claimed in the Wishneski action constituted

property damages within the meaning of the policy was

a question of law rather than a question of fact, which

would have precluded the granting of summary judgment. In support of this claim, he relies on the following

language in Capstone Building Corp.: ‘‘[W]hether an

insured party makes a viable claim for property damage

is a highly fact-dependent determination in each case.’’

Capstone Building Corp. v. American Motorists Ins.

Co., supra, 308 Conn. 778. The defendant notes that the

plaintiff submitted only three exhibits in support of its

motion for summary judgment, that only one of these

exhibits contained evidence concerning the damages

claimed, and that the damages alleged all fall within

the definition of property damage in Capstone Building

Corp. The defendant argues that, based on the evidence

submitted, the plaintiff has not offered any proof that

the damages claimed in the Wishneski action were not

property damage as defined within the policy. We dis-
agree with the defendant’s characterization of what this

determination requires.

As noted previously, the standard of review both for

a summary judgment and a determination concerning

an insurer’s duty to defend is plenary. Misiti, LLC v.

Travelers Property Casualty Co. of America, supra, 308

Conn. 154. Our Supreme Court has repeatedly stated

that the question of whether an insurer has a duty to

defend is ‘‘ ‘purely a question of law’ . . . .’’ Id.; accord

Wentland v. American Equity Ins. Co., 267 Conn. 592,

599 n.7, 840 A.2d 1158 (2004); Community Action for

Greater Middlesex County, Inc. v. American Alliance

Ins. Co., 254 Conn. 387, 395, 757 A.2d 1074 (2000). The

court has also long held that an insurer’s duty to defend

is determined by reference to the insurance policy and

the complaint in the underlying action. See Misiti, LLC

v. Travelers Property Casualty Co. of America, supra,

155; Smedley Co. v. Employers Mutual Liability Ins.

Co., 143 Conn. 510, 516–17, 123 A.2d 755 (1956).

Although there are circumstances where facts beyond

those alleged in the underlying complaint and which

are known to the insurer can require the insurer to

provide a defense, an insurer cannot rely on extrinsic

facts to refuse to provide a defense. See Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274

Conn. 457, 464, 466–67, 876 A.2d 1139 (2005); accord

Misiti, LLC v. Travelers Property Casualty Co. of

America, supra, 161 (‘‘the duty to defend must be determined by the allegations set forth in the underlying

complaint itself, with reliance on extrinsic facts being

permitted only if those facts support the duty to

defend’’).

In light of the foregoing principles, this court has

stated that ‘‘[t]o prevail on its own motion for summary

judgment . . . for a declaratory judgment that it has

no duty to defend in the underlying action, the insurer

must establish that there is no genuine issue of material

fact eitherthat no allegation ofthe underlying complaint

falls even possibly within the scope of the insuring

agreement or, even if it might, that any claim based on

such an allegation is excluded from coverage under an

applicable policy exclusion. . . . [T]he insurer . . . is

necessarily limited to the provisions of the subject

insurance policy and the allegations of the underlying

complaint.’’ (Emphasis added; internal quotation marks

omitted.) New London County MutualIns. Co. v. Bialobrodec, 137 Conn. App. 474, 479, 48 A.3d 742 (2012). As

the duty to defend may be resolved solely by referencing

the allegations of the complaint and the insurance policy pursuant to the ‘‘four corners’’ principle, it necessarily follows that whether ‘‘property damage’’ has been

alleged as one of the component parts of that determination may also be addressed solely by reference to those

two documents.

The defendant’s reliance on Capstone Building Corp.
is misplaced as it does not provide reason to deviate

from this authority. In determining whether the damages alleged to have arisen out ofthe defective construction or faulty workmanship constituted property

damage within the terms of the policy, our Supreme

Court stated in Capstone Building Corp.: ‘‘Although

we reject [the insurance company’s] argument that the

insuring agreement never covers damage to the

insured’s project, whether an insured party makes a

viable claim for property damage is a highly fact-dependent determination in each case. The allegations

detailed in the District Court’s memorandum of law

may be divided into four categories: (1) damage to nondefective property stemming from defective construction; (2) carbon monoxide; (3) defective work, standing

alone, including building and fire safety code violations;

and (4) repairs to damaged work.’’ Capstone Building

Corp. v. American Motorists Ins. Co., supra, 308 Conn.

777–78. The court then proceeded to examine each of

these categories, holding that the first ground, if properly alleged, would set forth a claim for property damage within the terms of the policy, and that the

remaining three would not provide a basis for such an

allegation. Id., 779–87. Thus, the language to which the

defendant points in Capstone Building Corp. does not

demonstrate the intent of the court to deviate from

its longstanding precedent. Rather, when placed in its

proper context, this language demonstrates that the

court was rejecting a per se rule for or against including

all damages related to defective construction in the

initial grant of coverage and requiring, instead, that any

damages claimed be considered individually.8

As Capstone Building Corp. does not change the

nature of the determination that insurers and the courts

must make in evaluating whether a duty to defend

exists, that determination remains a question of law.

See Misiti, LLC v. Travelers Property Casualty Co. of

America, supra, 308 Conn. 154. Therefore, we conclude

that the trial court properly treated the question of

whether the damages constituted property damage

within the meaning of the policy as a question of law.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The Wishneskis are also named as defendants in the plaintiff’s complaint.

Neitherfiled an appearance in the declaratory judgment action, and a motion

for default against each of them was granted on November 13, 2012. Additionally, neither of the Wishneskis has appeared in this appeal. Because they

have not taken an active role in the deliberations before the trial court

or this court, all references to the defendant in this opinion refer solely

to Sielski.

2 The defendant has also been referred to as ‘‘Andrzej Sielski’’ in both

actions.

3 The trial court held that none of the theories advanced in the second

amended complaint in the Wishneski action were for claims of property

damage or bodily injury. The defendant does not challenge the trial court’s

determination as to the lack of application of the bodily injury coverage

and has limited his arguments on appealto the claim that the alleged damages

for negligent misrepresentation implicate his property damage coverage.
4 Although this portion of the court’s analysis addressed whether there

was a duty to indemnify, the court later held that there was also no duty

to defend because ‘‘none of the [u]nderlying [c]laims gave rise to liability

under the [p]olicies, because the [third party’s] claims were not covered,’’

and relied on its previous analysis concerning the duty to indemnify to

demonstrate this point. Boggs v. Great Northern Ins. Co., supra, 659 F.

Supp. 2d 1214. ‘‘Thus, the [i]nsurance [c]ompanies could properly conclude

that no potential for liability existed.’’ Id.

5 There are, however, a minority of courts that have held that such situations can create property damage and an occurrence sufficient to give rise

to a duty to defend. For instance, in Wood v. Safeco Ins. Co. of America,

980 S.W.2d 43, 47 (Mo. App. 1998), the buyer alleged that the insured seller

of the properties represented, inter alia, that the residence was not in a

flood plain and that it had not previously flooded. They further alleged that,

after they had purchased the property, the entire property flooded and that

they would not have bought the property if they had known the true facts.

The court held that a misrepresentation under such circumstances could

qualify as an accident because the falsity in the statement and resulting

harm might be accidental. Id., 52. Similarly, the court held that the alleged

damages included flooding damage to the property, which the buyers would

not have suffered without the false representations because they would not

have bought the house, and that the several feet of water implicated the

‘‘ ‘loss of use’ ’’ portion of the ‘‘ ‘property damage’ ’’ requirement. Id., 53.

Finally, the court held that the ultimate determination of the causal relationship should have been addressed in the litigation by the insurer rather than

in the separate action. Id. On this basis, the court held that a duty to defend

existed. Id.; accord USAA Casualty Ins. Co. v. McInerney, 960 N.E.2d 655,

662 (Ill. App. 2011), leave to appeal denied, 968 N.E.2d 89 (Ill. 2012); Sheets

v. Brethren Mutual Ins. Co., 342 Md. 634, 658, 679 A.2d 540 (1996). We are

not persuaded by the reasoning of these cases.

6

‘‘To prevail on a negligence claim, a plaintiff must establish that the

defendant’s conduct legally caused the injuries. . . . The first component

of legal cause is causation in fact. Causation in fact is the purest legal

application of . . . legal cause. The test for cause in fact is, simply, would

the injury have occurred were it not for the actor’s conduct. . . . The second

component of legal cause is proximate cause . . . . [T]he test of proximate

cause is whether the defendant’s conduct is a substantial factor in bringing

about the plaintiff’s injuries. . . . Further, it is the plaintiff who bears the

burden to prove an unbroken sequence of events that tied his injuries to

the [defendants’ conduct]. . . . The existence of the proximate cause of

an injury is determined by looking from the injury to the negligent act

complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise. . . . An

actual cause that is a substantial factor in the resulting harm is a proximate

cause of that harm. . . . The finding of actual cause is thus a requisite for

any finding of proximate cause.’’ (Citation omitted; internal quotation marks

omitted.) Winn v. Posades, supra, 281 Conn. 56–57.

7

In his reply brief, the defendant attempts to bring the situation here back

within the ambit of Capstone Building Corp. by analogizing the causation of

the water and mold damage in both cases: ‘‘Although the court [in Capstone

Building Corp.] did not describe the precise mechanism of the mold and

water damage, logic suggests that the faulty construction did not directly

cause the water and mold damage to the tangible property. Water and mold

damage occur over time, as the water penetrates and soaks the materials.

Mold grows on the saturated material from spores found in the environment.

Thus, in Capstone Building Corp., the direct cause of the damage was the

introduction of water or moisture unto the materials. The faulty construction

was the indirect cause for failing to protect the material from the water

or moisture. Nonetheless, in Capstone Building Corp. the Supreme Court

determined that the occurrence (faulty construction) caused the property

damage (the water and mold damage).’’

This argument fails to persuade us. The causation issue in Capstone

Building Corp. is both presumed and fairly direct: if there had been no

faulty construction, then the moisture that gave rise to the water and mold

damage might not have entered the property. In the present case, however,

there has been no argument as to how the negligent misrepresentation

caused the tangible property damage in question; as alleged in the complaint,

the conditions giving rise to these issues existed prior to any misrepresentations or concealment by the defendant, so the misrepresentations cannot

fairly be said to have caused the conditions. The differentiation between
Capstone Building Corp. and this case can be succinctly stated this way:

If the defendant had adequately disclosed the alleged deficiencies of, or

existing damage to, the property, he would have no liability in the Wishneski

action even though the deficiencies and damage still would have existed

and even though the property still would have subsequently flooded because

of the topography of the land in the area of the property.

8 Our Supreme Court has continued to use a similar articulation of the

‘‘four corner’’ principle even after its decision in Capstone Building Corp.

See Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co.,

supra, 312 Conn. 739.