K-Mart Corp. v. U.S. Fire Ins. Co., No. Cv-96-0565206-S (Feb. 19, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT The plaintiff K-Mart Corporation, (hereinafter also "K-Mart"). was held liable for damages amounting to $30,000 for injuries suffered by one of its patrons when she slipped and fell on a rug on the sidewalk outside the K-Mart store at 45 Shunpike CT Page 2187 Road, Cromwell, Connecticut, on January 2, 1994. Plaintiff claims in this action that it was a named insured under a policy of the defendant, United States Fire Insurance Co., (hereinafter also "U.S. Fire") on January 2, 1994 and claims against the defendant breach of contract for failing to defend the action against it by the patron of the store aforementioned. The policy in question was a general liability policy issued by the defendant on December 3, 1993 with a policy period from December 4, 1993 to December 4, 1994. The named insured H.B. Nitkin Group the owner of various shopping centers throughout the country. Included in the property covered by the insurance are the common areas of 45-47 Shunpike Road, Cromwell, Connecticut. The dispositive issue in this case is whether the plaintiff was an additional insured on January 2, 1994.

The parties have stipulated in open court that there is no issue of material fact, but each claims it is entitled to judgment as a matter of law.

STANDARD OF REVIEW:

"Practice Book Section 384 provides that summary judgment 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." (Internal quotation marks omitted.)Doty v. Mucci, 238 Conn. 800, 805 (1996).

ISSUE

The named insured became the owner of the shopping center in Cromwell, namely Shunpike-West Ltd. PShip. Crum Forster Comm'l Underw. is apparently the holding company for U.S. Fire.

Plaintiff relies on a certificate of insurance dated 04/08/94, a copy of which is attached hereto as Exhibit A. The plaintiff is listed as the certificate holder and the certificate states "CERTIFICATE HOLDER IS INCLUDED AS ADDITIONAL INSURED AS RESPECTS COMMON AREAS AT 45-47 SHUNPIKE ROAD, CROMWELL, CT." There is no dispute that the patron of the plaintiff fell on the common area at 45-47 Shunpike Road. The certificate refers to Policy No. 5031341739, effective date 12/04/93 to expiration date of 12/04/94, the original policy mentioned herein. However, plaintiff's reliance on this certificate is misplaced. This is a certificate of insurance stating the status of the policy as of CT Page 2188 April 8, 1994. It states in pertinent part: "This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below." Emphasis added. Further, as noted just below the listing of the insured, Shunpike-West Ltd. PShip. is the following: "This is to certify that the policies of insurance listed below have been issued to the insured named above for the policy period indicated, notwithstanding any requirement. term or condition of any contract or other document with respect to which this certificate may be issued or may pertain. The insurance afforded by the policies described herein is subject to all the terms, exclusions, and conditions of such policies. Limits shown may have been reduced by claims." Emphasis added.

This document clearly specifies that the policy was issued to Shunpike-West Ltd. PShip. for the policy period, but does not confer any right upon the plaintiff as of the date of the inception of the policy period.

Defendant, on the other hand, relies on a "GENERAL PURPOSE ENDORSEMENT, Endorsement No. 5", a copy of which is attached hereto as Exhibit B. This endorsement clearly indicates that it changes the policy as opposed to the certificate which clearly states that it does not amend or alter the policy. This endorsement has an effective date of 03/21/1994. Plaintiff offers no evidence beyond Exhibit A, the certificate of insurance, to support its claim. It is clear to the court from these documents that the policy change adding the plaintiff as an additional insured was effective March 21, 1994 and that the certificate merely shows the status of the policy as of April 8, 1994. Since the addition of the plaintiff as a named insured did not occur until March 21, 1994, and the accident in question occurred on January 2, 1994, the only conclusion that can be drawn from these facts is that the plaintiff was not an additional insured on the date of the accident and, is, therefore, not entitled to insurance coverage by the defendant on the date of accident.

There is no genuine issue of material fact, as has been stipulated by the parties, and the defendant is entitled to judgment as a matter of law.

Accordingly, the plaintiff's motion for summary judgment is denied, and the defendant's motion for summary judgment is granted. CT Page 2189

Rittenband, J.

EXHIBIT A

__________________________________________________________________________ | ACORD. CERTIFICATE OF INSURANCE DATE (MM/DD/YY) | | 04/08/94 | |__________________________________________________________________________| | PRODUCER | THIS CERTIFICATE IS ISSUED AS A | | | MATTER OF INFORMATION ONLY AND | | New England Brokerage Corp. | CONFERS NO RIGHTS UPON THE | | SO FIELD POINT ROAD | CERTIFICATE HOLDER. THIS CERTIFICATE| | | DOES NOT AMEND, EXTEND OR ALTER THE | | GREENWICH, CT 06830 | COVERAGE AFFORDED BY THE POLICIES | | | BELOW. | | |_____________________________________| | | COMPANIES AFFORDING COVERAGE | | |_____________________________________| | | COMPANY | | | A | |____________________________________|_____________________________________| | INSURED | COMPANY | | | B CRUM FORSTER COMM'L, UNDERW.| | Shunpike — West Ltd. PShip |_____________________________________| | One Dag Hammarskjold Pla. | COMPANY | | C/O HB Nitkin Group | C | | New York City, N.Y. 10017 |_____________________________________| | | COMPANY | | | D | |____________________________________|_____________________________________| | COVERAGES | | THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE | | BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED,| | NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR | | OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR | | MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS| | SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, | | LIMITS SHOWN MAY HAVE BEEN REDUCED BY HMO CLAIMS. | |__________________________________________________________________________| | CO | | | | | | | LTR| TYPE OF | POLICY | POLICY | POLICY | LIMITS | | | INSURANCE | NUMBER | EFFECTIVE |EXPIRATION| | | | | | DATE | DATE | | | | | |(MM/DD/YY) |(MM/DD/YY)| | CT Page 2190 |____|________________|__________|___________|__________|__________________| | | GENERAL | | | | GENERAL | | | | LIABILITY | | | | AGGREGATE|$200000| | B |___ | | | |__________|_______| | | X | COMMERCIAL | | | | PRODUCTS |$100000| | |___| GENERAL |5031341739| 12/04/93 | 12/04/94 | — COMP/OP| | | | | LIABILITY | LIAB | | | AGG | | | |___|___ | | | |__________|_______| | | | | CLAIMS | | | | PERSONAL |$100000| | |___|___| MADE | | | | ADV | | | | | X | OCCUR | | | | INJURY | | | |___|___| | | | |__________|_______| | | | OWNERS | | | | EACH |$100000| | | |CONTRACTOR'S| | | |OCCURRENCE| | | |___| PROT | | | |__________|_______| | | | | | | | FIRE |$ 5000| | |___|___________ | | | | DAMAGE | | | | | | | | | (Any one | | | | | | | | | fire) | | | | | | | | |__________|_______| | | | | | | | MED EXP |$ 500| | | | | | | | (Any one | | | | | | | | | person) | | |____|___|____________|__________|___________|__________|__________|_______| | | AUTOMOBILE | | | | | | | | LIABILITY | | | | COMBINED | | | |___ | | | | SINGLE | $ | | | | ANY AUTO | | | | LIMIT | | | |___| | | | |__________|_______| | | | ALL OWNED | | | | BODILY | | | |___| AUTOS | | | | INJURY | $ | | | | SCHEDULED | | | | (Per | | | |___| AUTOS | | | | person) | | | | | HIRED AUTOS| | | |__________|_______| | |___| | | | | PROPERTY | $ | | | | NOW-OWNED | | | | DAMAGE | | | |___| AUTOS | | | | | | | | | | | | | | | | |___|___________ | | | | | | | | | | | | | | | |____|___|____________|__________|___________|__________|__________|_______| | |GARAGE LIABILITY| | | | AUTO ONLY| | | |___ | | | | — EA | $ | | | | ANY AUTO | | | | ACCIDENT | | | |___| | | | |__________|_______| CT Page 2191 | | | __________ | | | |OTHER THAN| | | |___| | | | |AUTO ONLY:| | | | | | | | |__________|_______| | | | | | | | EACH | | | | | | | | | ACCIDENT | $ | | | | | | | |__________|_______| | | | | | | | AGGREGATE| $ | |____|___|____________|__________|___________|__________|__________|_______| | |EXCESS LIABILITY| | | | EACH | | | |___ | | | |OCCURRENCE| $ | | | | UMBRELLA | | | |__________|_______| | |___| FORM | | | | AGGREGATE| $ | | | | OTHER THAN | | | |__________|_______| | |___| UMBRELLA | | | | | $ | | | FORM | | | | | | |____|________________|__________|___________|__________|__________|_______| | | WORKERS | | | | STATUTORY| | | | COMPENSATION | | | | LIMITS | | | | AND | | | |__________|_______| | | THE ___| | | | EACH | $ | | |PROPRIETOR/ | | | | | ACCIDENT | | | |PARTNERS/ |___| | | |__________|_______| | |EXECUTIVE INCL| | | | DISEASE -| | | |OFFICERS ARE ___| | | | POLICY | $ | | | | | | | | LIMIT | | | | |___| | | |__________|_______| | | EXCL| | | | DISEASE -| | | | | | | | EACH | $ | | | | | | | EMPLOYEE | | |____|________________|__________|___________|__________|__________|_______| | | OTHER | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |____|________________|__________|___________|__________|__________|_______| | DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS | | | | CERTIFICATE HOLDER IS INCLUDED AS ADDITIONAL INSURED AS RESPECTS | | COMMON AREAS AT 45-47 SHUNPIKE ROAD, CROMWELL, CT. | |__________________________________________________________________________| | CERTIFICATE HOLDER CANCELLATION | | | | CT Page 2192 | KMART CORP. | SHOULD ANY OF THE ABOVE DESCRIBED| | ATTN: WILLIAM SZYKULA | POLICIES BE CANCELLED BEFORE THE | | 3100 WEST BIB BEAVER ROAD | EXPIRATION DATE THEREOF, THE | | TROY, MI 48084-3163 | ISSUING COMPANY WILL ENDEAVOR TO | | | MAIL 30 DAYS WRITTEN NOTICE TO | | | THE CERTIFICATE HOLDER NAMED TO | | | THE LEFT, BUT FAILURE TO MAIL | | | SUCH NOTICE SHALL IMPOSE NO | | | OBLIGATION OR LIABILITY OF ANY | | | KIND UPON THE COMPANY ITS AGENTS | | | OR REPRESENTATIVES. | | |__________________________________| | | AUTHORIZED REPRESENTATIVE | | | | | | [EDITORS' NOTE: REPRESENTATIVE | | | NAME IS ELECTRONICALLY | | | NON-TRANSFERRABLE.] | | | | | | ACORD CORPORATION 1993| |_______________________________________|__________________________________|

[EDITORS' NOTE: LETTERHEAD IS ELECTRONICALLY NON-TRANSFERRABLE.]

THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY.

MASTER FORMS LIST

The following forms and endorsements are attached to this policy effective at inception:

FORM NUMBER FORM TITLE

FM600.0.453(07-87) COMPAC III DECLARATION FM101.0.867(08-85) COMMON POLICY CONDITIONS IL0260(12-87) CT CHANGES — CANCELLATION AND NON-RENEWAL FM100.0.14(04-83) (NAMED INSURED) ENDORSEMENT IL8021(11-85) NUCLEAR ENERGY LIAB. EXCLUSION ENDORSEMENT (BF) IL8268(06-93) N.Y. CHANGES — CANCELLATION AND NONRENEWAL CL 150(11-85) COMM'L GENERAL LIABILITY COV. PART DEC CG0007(11-88) COMMERCIAL GENERAL LIAB. COV. FORM (OCCURRENCE) FM101.8.1206(01-96) COMMERCIAL GENERAL LIABILITY ENHANCEMENT CG0168(C4-86) NEW YORK CHANGES — AMENDATORY ENDORSEMENT CG2621(10-91) N.Y. CHANGES — TRANSFER DUTIES WHEN LIMIT CT Page 2193 INS. USED UP CG2013(11-85) ADDITIONAL INSURED — MORTGAGEE ASSIGNEE RECEIVER FM101.0.1056(12-88) HIRED AUTO AND NON-OWNED AUTO LIABILITY CG2011(11-85) ADDITIONAL INSURED — MANAGERS LESSORS OF PREMISES FM800.0.839(10-87) COMMERCIAL CRIME COVERAGE PART DECLARATIONS CR 0004(10-90) THEFT DISAPPEARANCE/DESTRUCTION COVERAGE FORM CR 1000(10-90) CRIME GENERAL PROVISIONS CG 0104(10-93) N.Y. CHANGES — PREMIUM AUDIT

[EDITORS' NOTE: LETTERHEAD IS ELECTRONICALLY NON-TRANSFERRABLE.]

EXHIBIT B GENERAL PURPOSE ENDORSEMENTTHIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY.

*Named Insured H.B. NITKIN GROUP Policy No. 503 134173 9

*Company UNITED STATES FIRE INSURANCE Endorsement No. 5

*Producer NEW ENGLAND BROKERAGE CORP. Effective Date 03/21/1994 POLICY CHANGES ARE INDICATED BY A X

Named Insured amended to read as Address of Named Insured amended shown below. to read as shown below.

Premium or rates amended as shown Policy Period amended to read as below. shown below.

Premium Basis is amended to read Limit(s) of insurance is amended as shown below. to read as shown below.

Total Advance Premium amended as Policy conditions amended as shown below. shown below.

Business Description of Insured is Description or location of amended to read as shown below. property amended to read as shown below. CT Page 2194

Locations(s) shown below added to Location(s) shown below deleted policy. from policy.

X Other as shown below. Forms and Endorsements shown below made part of this policy.

Item(s) listed below added to Item(s) listed below deleted schedule. from schedule.

Total of schedule increased by Total of schedule reduced by To a total of To a total of

ADDITIONAL INSURED IS ADDED TO THE POLICY PER CG 2026 (11-85) ATTACHED. AUDIT DEPT. NOTIFIED ___________________ | IPP-DO NOT ENTER | |___________________|

NO PREMIUM CHANGE 6/8/94AN

[EDITORS' NOTE: FORM IS ELECTRONICALLY NON-TRANSFERRABLE.]

POLICY NUMBER: 503 1341 9 CG 20 26 11 85

THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. ADDITIONAL INSURED — DESIGNATED PERSON OR ORGANIZATION

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE

Name of Person or Organization:

KMART CORP. 3100 WEST BIG BEAVER RD. TROY, MI 48084-3163

RE: LOC. 3) 45-47 SHUNPIKE RD., CROMWELL, CT

RE: COMMON AREAS ONLY CT Page 2195

(If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.)

WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you.

CG 20 26 11 85 Copyright Insurance Services Office, Inc., 1984