A & R Enterprises, LLC v. Sentinel Ins. Co., Ltd.

A
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       A AND R ENTERPRISES, LLC v. SENTINEL
            INSURANCE COMPANY, LTD.
                   (AC 42774)
                  Bright, C. J., and Lavine and Cradle, Js.*

                                   Syllabus

The plaintiff auto repair shop sought to recover damages from the defendant
    insurance company for breach of a commercial automobile insurance
    policy in connection with the defendant’s failure to pay the full cost of
    repairs that the plaintiff had made to a vehicle owned by the defendant’s
    insured, which assigned its rights under the insurance policy to the
    plaintiff. The defendant asserted as a special defense that the plaintiff’s
    claim was barred because the insured failed to comply with the voluntary
    payment provision of the policy, which required the insured to obtain
    the defendant’s consent before incurring any expense, except at the
    insured’s own cost. The trial court rendered judgment in favor of the
    defendant, from which the plaintiff appealed to this court. Held:
1. This court declined to review the plaintiff’s claim that the trial court erred
    in concluding that recovery of the full cost of the repairs was precluded
    by the insured’s failure to comply with the voluntary payment provision
    of the policy, as none of the plaintiff’s specific claims of error was
    distinctly raised before the trial court.
2. The plaintiff could not prevail on its claim that the trial court erred
    in concluding that the defendant’s reliance on the insured’s alleged
    noncompliance with the voluntary payment provision of the policy did
    not constitute an improper attempt to steer the insured to the defendant’s
    preferred auto repair shop in violation of the applicable statute (§ 38a-
    354 (b)); although the defendant refused to pay the full cost of repairs
    charged by the plaintiff, there was no evidence presented at trial that
    the defendant required the insured to use a specific person, and, in the
    absence of such evidence, the court’s determination that the plaintiff
    failed to prove a violation of § 38a-354 (b) was not clearly erroneous.
      Argued October 29, 2020—officially released January 12, 2021

                             Procedural History

  Action to recover damages for breach of an insurance
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford and tried to
the court, Hon. Robert B. Shapiro, judge trial referee;
judgment for the defendant, from which the plaintiff
appealed to this court. Affirmed.
   Matthew J. Forrest, for the appellant (plaintiff).
   Joseph M. Busher, Jr., for the appellee (defendant).
                          Opinion

   CRADLE, J. In this action seeking recovery of the
cost to repair a motor vehicle that was damaged in an
accident, the plaintiff, A & R Enterprises, LLC, appeals
from the judgment of the trial court, rendered after a
court trial, denying its claim for the full cost of the
repairs on the ground that the insured, Creative Electric,
LLC (insured), which assigned its rights to the plaintiff,
failed to comply with the voluntary payment provision
of the insurance policy pursuant to which the plaintiff
sought recovery from the defendant, Sentinel Insurance
Company, Ltd. On appeal, the plaintiff claims that the
trial court erred by (1) concluding that the recovery of
the full cost of the repairs was precluded by the
insured’s failure to comply with the voluntary payment
provision and (2) rejecting its claim that the defendant’s
reliance on that provision constituted an improper
attempt to steer the insured to the defendant’s preferred
auto body repair shop in violation of General Statutes
§ 38a-354 (b). We affirm the judgment of the trial court.
   The following factual and procedural history, as set
forth by the trial court in its memorandum of decision,
is relevant to the resolution of the plaintiff’s claims on
appeal. ‘‘The plaintiff . . . commenced this action for
breach of an insurance policy against the defendant
. . . in June, 2016, seeking damages in the amount of
$3278.58 for repairs made to a motor vehicle owned by
[the insured] in June, 2015. The plaintiff is the assignee
of [the insured].
   ‘‘The plaintiff alleges that, on May 7, 2015, [the
insured’s] vehicle was damaged in a one vehicle acci-
dent and the vehicle was covered by a commercial
automobile insurance policy issued by the defendant.
[The insured] entered into a contract with the plaintiff
to complete all reasonable and necessary repairs. The
plaintiff alleges that it completed all reasonable and
necessary repairs for a total cost of $9681.84, of which
only $6403.26 was paid by the defendant. The plaintiff
claims that a balance of $3278.58 remains due and owing
from the defendant. It also alleges that the defendant’s
failure to pay for the repairs is an attempt at ‘steering’
its insured to an auto body shop other than the plaintiff’s
by placing financial pressure on the insured to choose
another repair facility.
  ‘‘In response, the defendant admits that it issued an
auto insurance policy to [the insured] and that the policy
covered the damaged vehicle. The defendant generally
denies all other allegations or leaves the plaintiff to its
proof. In addition, the defendant set forth various spe-
cial defenses, including, in its fourth special defense,
that the plaintiff’s claim is barred by applicable policy
language providing that no one may bring legal action
against the defendant until there has been full compli-
ance with the terms thereof . . . and there has not
been full compliance with all such terms, in that consent
was not obtained before the obligations and expenses
claimed by the plaintiff were incurred.
  ‘‘The defendant relies on [§] IV.A.2.b (1) [of the policy,
known as the voluntary payment provision], which pro-
vides, under Business Auto Conditions, that the defen-
dant ‘has no duty to provide coverage under this policy
unless there has been full compliance with the following
duties,’ including that an insured ‘must . . . [a]ssume
no obligation, make no payment or incur no expense
without our consent, except at the ‘‘insured’s’’ own
cost.’ ’’1
   Following a one day trial and the submission of post-
trial briefs by the parties,2 the court, on March 19, 2019,
issued a memorandum of decision, in which it found
in favor of the defendant on its special defense that
the insured failed to comply with the provision of the
insurance policy that required it to incur no expense
without the defendant’s consent. Specifically, the court
found: ‘‘The alleged loss occurred on May 7, 2015. [The
defendant’s appraiser, Harry] Bassilakis went to the
plaintiff’s repair facility in Torrington . . . on June 24,
2015, where he met with the insured and inspected the
vehicle. He discussed the scope of repairs with the
plaintiff’s representative, Randall Serkey. While they
agreed on the scope of damage, no agreement was
reached on the total cost of repairs. Bassilakis provided
the defendant’s estimate and explained to the insured
and to Serkey that the defendant was in a nonagreed
position with the insured’s body shop of choice and
that it was solely the insured’s choice as to where to
have the vehicle repaired. He advised that a letter [stat-
ing this position] would be issued.
  ‘‘By letter issued the next day, June 25, 2015 . . . the
defendant advised the insured that it had been unable
to reach an agreed price with the plaintiff, the ‘repairer
of your choice.’ The defendant offered the sum of
$4981.42 plus the insured’s deductible of $500 as suffi-
cient to repair the vehicle ‘at a repair shop located
reasonably convenient to you.’ Its claim representative
asked the insured to contact her to discuss how it
wished to proceed. . . .
   ‘‘While the plaintiff argues that this letter was drafted
and sent after the insured had signed a repair contract
with the plaintiff . . . evidence of agreement between
the plaintiff and the insured does not evidence consent
by the defendant. The defendant’s position that it did
not agree with the plaintiff’s price was clearly stated.
The plaintiff’s arguments that the insured had a reason-
able expectation that the defendant would cover the
cost of the repairs which the insured incurred and that
[it] is reasonable that an insured would believe that he
was acting with the defendant’s knowledge and con-
sent, are unfounded. The insured did not have the requi-
site consent from the defendant.’’ (Citations omitted.)
On that basis, the court rendered judgment in favor of
the defendant. This appeal followed.
                              I
   The plaintiff first claims that the trial court erred
when it denied recovery of the full cost of repairs to
the insured’s vehicle on the ground that the insured
failed to comply with the voluntary payment provision
of the insurance policy3 because (1) it did not consider
whether the defendant was prejudiced by the insured’s
noncompliance with that provision, (2) voluntary pay-
ment provisions are applicable only to expenses
incurred prior to the insurer being notified of the claim
of loss, (3) it failed to apply the ‘‘rule of contra proferen-
tem against the [defendant] where the consent provi-
sion [was] ambiguous,’’ and (4) compliance with that
provision was not a condition precedent to recovery.
The defendant argues that the plaintiff’s claims were
not raised before the trial court and, thus, cannot be
considered by this court on appeal. We agree with
the defendant.
   ‘‘Our rules of practice provide that we are not bound
to consider a claim unless it was distinctly raised at
trial or arose subsequent to the trial. Practice Book
§ 60-5. . . . A claim is distinctly raised if it is so stated
as to bring to the attention of the court the precise
matter on which its decision is being asked. . . . A
claim briefly suggested is not distinctly raised.’’
(Emphasis added; internal quotation marks omitted.)
Connecticut Bank & Trust Co. v. Munsill-Borden Man-
sion, LLC, 

147 Conn. App. 30

, 36–37, 

81 A.3d 266

(2013).
‘‘Our rules of procedure [also] do not allow a [party]
to pursue one course of action at trial and later, on
appeal, argue that a path he rejected should now be
open to him. . . . To rule otherwise would permit trial
by ambuscade.’’ (Internal quotation marks omitted.)
Ferri v. Powell-Ferri, 

317 Conn. 223

, 236–37, 

116 A.3d 297

(2015).
  Our examination of the trial court record reveals that
the plaintiff did not argue to the trial court that the
defendant was required and failed to prove prejudice
as a result of the plaintiff’s alleged noncompliance with
the voluntary payment provision of the policy or that
voluntary payment provisions apply only to expenses
incurred prior to an insurer being notified of a claim
of loss. Those claims are not properly before this court,
and we therefore decline to review them.
   The plaintiff’s claims that the voluntary payment pro-
vision is ambiguous and is not a condition precedent
to recovery are also unpreserved. At trial, the plaintiff
argued that the voluntary payment provision of the pol-
icy was ‘‘designed to allow the insurer to be notified
of a claim, suit or accident and to investigate it for
purposes of determining coverage, liability, and
asserting rights the insurer may have, not to limit the
ability of the insured to rectify damage to the insured
property.’’ Alternatively, the plaintiff argued that, even
if the policy did require the consent of the defendant
‘‘before the repairs could be completed (which it does
not), the facts demonstrate that the insured did have the
consent of the defendant to have his vehicle repaired.’’
   On appeal, the plaintiff now argues that the voluntary
payment provision of the policy is ambiguous in that
the term ‘‘consent’’ can mean either consent to repair
or consent to the cost of the repairs. In its posttrial brief,
the plaintiff argued that the insured was not required
to obtain the consent of the defendant to repair the
vehicle, and, even if that consent was required by the
policy, the insured had obtained it. Later in that brief,
the plaintiff cited case law pertaining to the interpreta-
tion of contractual terms that may be susceptible to
more than one interpretation. Aside from a singular
characterization of the voluntary payment provision as
‘‘an ambiguous clause tucked into an eighty-three page
insurance policy drafted by [the defendant],’’ the plain-
tiff did not, however, explicitly allege any ambiguity in
the language of the voluntary payment provision of
the policy. The plaintiff did not clearly argue—in the
position statement that he filed with the court prior to
trial, at trial, in his posttrial brief, or in his reply to the
defendant’s posttrial brief—that the term ‘‘consent’’ in
the voluntary payments provision of the insurance pol-
icy is ambiguous. The first time the plaintiff distinctly
addresses this claim is on appeal. Even if we assume
that the plaintiff’s reference to case law pertaining to
contractual ambiguities pertained to the term ‘‘consent’’
in the voluntary payment provision, as he now argues
on appeal, the plaintiff failed to develop that argument.
Because the plaintiff, at most, briefly suggested such an
argument, it was not distinctly raised. See Connecticut
Bank & Trust Co. v. Munsill-Borden Mansion, 

LLC, supra

, 

147 Conn. App. 37

. Because the plaintiff raises
this distinct claim for the first time on appeal, it was
not properly preserved for this court to consider. The
plaintiff likewise failed to present a clear or distinct
argument at trial that compliance with the voluntary
payment provision was not a condition precedent to
recovery.4 Because these claims were not distinctly
raised before the trial court, we decline to address them.
                              II
  The plaintiff also claims that the trial court erred in
concluding that the defendant’s reliance on the
insured’s alleged noncompliance with the voluntary
payment provision of the policy did not constitute an
improper attempt to steer the insured to the defendant’s
preferred auto body repair shop in violation of § 38a-
354 (b).5 We are not persuaded.
   Section 38a-354 (b) provides in relevant part that
‘‘[n]o insurance company doing business in this state,
or agent or adjuster for such company shall (1) require
any insured to use a specific person for the provision
of automobile physical damage repairs . . . .’’ The
question of whether the defendant required the insured
to have the repairs done at a specific repair shop is
a factual determination that is subject to our clearly
erroneous standard of review. ‘‘The trial court’s findings
are binding upon this court unless they are clearly erro-
neous in light of the evidence and the pleadings in the
record as a whole. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port it . . . or when although there is evidence to sup-
port it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed. . . .
   ‘‘In applying the clearly erroneous standard of review,
[a]ppellate courts do not examine the record to deter-
mine whether the trier of fact could have reached a
different conclusion. Instead, we examine the trial
court’s conclusion in order to determine whether it
was legally correct and factually supported. . . . This
distinction accords with our duty as an appellate tribu-
nal to review, and not to retry, the proceedings of the
trial court.’’ (Internal quotation marks omitted.) DeMat-
tio v. Plunkett, 

199 Conn. App. 693

, 711, 

238 A.3d 24

(2020). ‘‘Under the clearly erroneous standard of
review, a finding of fact must stand if, on the basis
of the evidence before the court and the reasonable
inferences to be drawn from that evidence, a trier of
fact reasonably could have found as it did.’’ (Internal
quotation marks omitted.) Wells Fargo Bank, N.A. v.
Lorson, 

183 Conn. App. 200

, 210, 

192 A.3d 439

, cert.
granted on other grounds, 

330 Conn. 920

, 

193 A.3d 1214

(2018).
   At trial, the plaintiff argued that the defendant con-
structively steered the insured away from one repair
shop to another by setting a price cap on the cost of
repairs. The plaintiff argued: ‘‘The price cap does not
allow the insured to receive service from their auto
body shop of choice without a penalty and thereby
steers the insured from using the auto body shop they
have chosen. With this price cap, the options for repair
shops for the insured are limited and the defendant is
in violation of . . . § 38a-354 [(b)].’’
   The trial court rejected the plaintiff’s steering claim,
finding that there was no evidence of any violation of
§ 38a-354 (b). The court cited to Bassilakis’ testimony
that it was the right of the insured to choose the repair
shop and to the estimate that he prepared and provided
to the plaintiff and the insured, which ‘‘clearly stated
this.’’6
   On appeal, the plaintiff contends that the trial court
erred in so finding because the letter sent by the defen-
dant refusing to pay the estimate provided by the plain-
tiff ‘‘limits consumer choice in repair shops. It specifies
that the insurer will not cover the cost of repair at the
consumer’s chosen shop, and also directs the consumer
to the insurer’s (unnamed) shop that offers a ‘written
guarantee’.’’ The plaintiff argues that ‘‘[a]llowing insur-
ers to set price caps, dictate repair shops, or both,
violates the anti-steering statute . . . .’’ We disagree.
   Although the defendant refused to pay the full cost
of the repairs charged by the plaintiff—the insured’s
repair shop of choice—there was no evidence presented
at trial that the defendant ‘‘require[d]’’ the insured to
‘‘use a specific person’’ to repair the vehicle. General
Statutes § 38a-354 (b). In the absence of any such evi-
dence, the trial court’s determination that the plaintiff
failed to prove a violation of § 38a-354 (b) was not
clearly erroneous.
   The judgment is affirmed.
   In this opinion the other judges concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     Other special defenses were stricken by the court.
   2
     The parties also filed position statements with the court prior to trial.
   3
     We note that, ‘‘[a]lthough the general rule is that a defendant who pleads
a special defense bears the burden on that issue, we have recognized an
exception in the context of a special defense based on a claim that an
insured has failed to comply with the terms of the insurance policy. . . .
When an insured brings an action against an insurer for breach of the
insurance contract, the insured bears the burden of proving that it complied
with the terms of the contract, including the conditions. . . . When a defen-
dant pleads failure to comply with the terms of an insurance policy as a
special defense, the usual presumption of compliance is extinguished, and
the insured carries the burden of proving compliance with the insurance
contract, including the conditions precedent to coverage.’’ (Citations omit-
ted; internal quotation marks omitted.) National Publishing Co. v. Hartford
Fire Insurance Co., 

287 Conn. 664

, 673–74, 

949 A.2d 1203

(2008).
   The plaintiff argues that the trial court mistakenly relied on this language
from National Publishing Co. because ‘‘the Connecticut Supreme Court
. . . in 2012 explicitly overturned the National Publishing [Co.] burden of
proof paradigm.’’ We disagree. Although our Supreme Court in Arrowood
Indemnity Co. v. King, 

304 Conn. 179

, 203, 

39 A.3d 712

(2012), abandoned
its prior jurisprudence that the insured must prove a lack of prejudice to
the insurer from the insured’s failure to comply with a condition of the
contract, it did not abandon the burden discussed previously and relied on
by the trial court that the insured bears the burden of proving compliance
with the condition.
   4
     We also note that the plaintiff has provided no legal authority in support
of the argument that the voluntary payment provision was not a condition
precedent to recovery. Thus, even if it had been properly preserved, it is
not adequately briefed. See Gorski v. McIsaac, 

156 Conn. App. 195

, 209, 

112 A.3d 201

(2015) (‘‘We are not obligated to consider issues that are not
adequately briefed. . . . [M]ere conclusory assertions regarding a claim,
with no mention of relevant authority and minimal or no citations from the
record, will not suffice.’’ (Internal quotation marks omitted.)).
   5
     The plaintiff also argues that ‘‘[p]ublic policy favors the reversal of the
trial court’s decision, which creates uncertainty for insured consumers while
offering insurers a way to avoid liability for otherwise covered claims . . . .’’
Because this claim was not raised before the trial court, we decline to
review it.
   6
     The estimate prepared by Bassilakis on behalf of the defendant provided,
inter alia: ‘‘YOU HAVE THE RIGHT TO CHOOSE THE LICENSED REPAIR
SHOP WHERE THE DAMAGE TO YOUR MOTOR VEHICLE WILL BE
REPAIRED.’’

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