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LIBERTY TRANSPORTATION, INC.
v. MASSACHUSETTS BAY
INSURANCE COMPANY
(AC 41553)
DiPentima, C. J., and Moll and Norcott, Js.
Syllabus
The plaintiff sought to recover damages from the defendant insurance com-
pany for, inter alia, breach of contract in connection with lost rental
income and damage to certain of its real property that was sustained
during a hurricane. The defendant filed a motion to dismiss, asserting
that the plaintiff lacked standing to bring its claim for lost rental income
because it had sold the property to a third party and assigned the rights
to the insurance proceeds to that third party pursuant to the terms of
the real estate purchase agreement. The plaintiff claimed that it had
standing and was entitled to the insurance proceeds because the damage
occurred before it entered into the real estate purchase agreement with
the third party and because it had retained an interest in the damaged
rental units as a result of its decision to exercise a leaseback provision
in that agreement. The trial court granted the defendant’s motion to
dismiss, concluding, inter alia, that the plaintiff lacked standing because,
by virtue of the assignment, it had no legal interest in the insurance
proceeds. The trial court thereafter rendered judgment for the defendant,
from which the plaintiff appealed to this court. Held that the trial court
properly granted the defendant’s motion to dismiss and rendered judg-
ment dismissing the plaintiff’s complaint; because the trial court’s memo-
randum of decision thoroughly addressed the arguments raised in this
appeal, this court adopted the trial court’s well reasoned decision as a
proper statement of the facts and the applicable law on the issues.
Argued March 18—officially released April 30, 2019
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Shapiro, J., granted the defendant’s motion to
dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Stuart G. Blackburn, with whom, on the brief, was
Paige B. Durno, for the appellant (plaintiff).
Stephen O. Clancy, with whom, on the brief, was
Jessica A. R. Hamilton, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiff, Liberty Transportation,
Inc., appeals from the judgment of the trial court grant-
ing the motion to dismiss filed by the defendant, Massa-
chusetts Bay Insurance Company. The dispositive issue
in the appeal is whether the court properly concluded
that the plaintiff lacked standing to commence this
action. We affirm the judgment of the trial court.
The plaintiff set forth the following allegations in its
complaint. In August, 2011, the plaintiff owned property
located at 11 High Street in Suffield, which the defen-
dant insured for, inter alia, property damage, loss of
income and fair rental value. On or about August 28,
2011, the property suffered wind and water damage
during a hurricane. As a result, the plaintiff claimed to
have sustained damages for lost income and lost fair
rental value, and made an insurance claim to the defen-
dant. The defendant declined to pay the plaintiff’s claim.
In August, 2013, the plaintiff commenced this action
against the defendant. Its complaint set forth claims
for breach of contract and breach of the implied cove-
nant of good faith and fair dealing. It sought money
damages, interest, attorney’s fees, costs, and any other
relief deemed appropriate by the court. The defendant
filed an answer and raised several special defenses on
January 8, 2016.
On September 6, 2017, the defendant filed a motion
to dismiss pursuant to Practice Book § 10-30. Specifi-
cally, the defendant argued that the plaintiff lacked
standing to bring its claim for lost rental income for
two commercial units at the property because the plain-
tiff had sold the property to a third party on January
10, 2012,1 and had assigned any insurance money
for any damages existing at the time of the January,
2012 real estate closing.2 Specifically, it stated: ‘‘[The]
[p]laintiff’s assignment of its rights to any potentially
recoverable insurance proceeds to [the third party]
unequivocally extinguished [the] [p]laintiff’s corres-
ponding right to recover those amounts. [The] [p]lain-
tiff, therefore, lacks standing to maintain this action on
its own behalf.’’
On October 6, 2017, the plaintiff filed a memorandum
of law in opposition to the defendant’s motion to dis-
miss. It argued that the loss of rental income occurred
before the formation of the real estate purchase agree-
ment. The plaintiff further claimed it was ‘‘classically
aggrieved in that it has a specific interest in the claimed
insurance proceeds . . . [and] suffered a loss due to
the breach of contract by the [defendant] and has stand-
ing to bring this action.’’ It also contended that it had
retained an interest in the damaged units as a result of
its decision to exercise a leaseback provision as set
forth in the real estate purchase agreement.3
On March 27, 2018, the court, Shapiro, J., issued
a memorandum of decision granting the defendant’s
motion to dismiss. It first addressed the defendant’s
argument that the plaintiff had assigned the rights to
the insurance proceeds to the third party pursuant to
the terms of the real estate purchase agreement. It spe-
cifically explained: ‘‘An assignment is a transfer of prop-
erty or some other right from one person (the assignor)
to another (the assignee), which confers a complete
and present right in the subject matter to the assignee.
. . . Succession by an assignee to exclusive ownership
of all or part of the assignor’s rights respecting the
subject matter of the assignment, and a corresponding
extinguishment of those rights in the assignor, is pre-
cisely the effect of a valid assignment.’’ (Citations omit-
ted; internal quotation marks omitted.) The court
concluded that a valid assignment had occurred.
The court was not persuaded by the plaintiff’s argu-
ments that (1) it was entitled to the insurance proceeds
because the damage had occurred before it entered into
the real estate purchase agreement with the third party
and (2) the execution of the leaseback provision in the
real estate purchase agreement established its interest
in the property such that it had standing. The court also
rejected the plaintiff’s claim that a separate agreement
with the defendant entitled the plaintiff to any insurance
moneys. Indeed, the plaintiff had failed to provide the
court with a copy of this alleged separate agreement.
The court granted the defendant’s motion, concluding
that ‘‘the plaintiff lacks standing in the present case
because, by virtue of the assignment, it has no legal
interest in alleged insurance proceeds that are due and
payable on account of damage to the [property].’’ This
appeal followed.
We carefully have examined the record and the briefs
and arguments of the parties, and conclude that the
judgment of the trial court should be affirmed. Because
the trial court’s memorandum of decision thoroughly
addresses the arguments raised in this appeal, we adopt
that court’s well reasoned decision as a proper state-
ment of the facts and the applicable law on the issues.
Liberty Transportation, Inc. v. Massachusetts Bay Ins.
Co., Superior Court, judicial district of Hartford, Docket
No. CV-XX-XXXXXXX-S (March 27, 2018) (reprinted at 189
Conn. App. 600, A.3d ). It would serve no useful
purpose for this court to engage in any further discus-
sion. See, e.g., Woodruff v. Hemingway, 297 Conn. 317,
321, 2 A.3d 857 (2010); Bassford v. Bassford, 180 Conn.
App. 331, 335, 183 A.3d 680 (2018); Samakaab v. Dept.
of Social Services, 178 Conn. App. 52, 54, 173 A.3d
1004 (2017).
The judgment is affirmed.
1
The defendant attached a copy of the real estate purchase agreement
for 11 High Street in Suffield. Generally, ‘‘[w]hen a . . . court decides a
. . . question raised by a pretrial motion to dismiss, it must consider the
allegations of the complaint in their most favorable light. . . . In this regard,
a court must take the facts to be those alleged in the complaint, including
manner most favorable to the pleader. . . . The motion to dismiss . . .
admits all facts which are well pleaded, invokes the existing record and
must be decided upon that alone. . . .
‘‘[I]f the complaint is supplemented by undisputed facts established by
affidavits submitted in support of the motion to dismiss . . . other types
of undisputed evidence . . . and/or public records of which judicial notice
may be taken . . . the trial court, in determining a jurisdictional issue, may
consider these supplementary undisputed facts and need not conclusively
presume the validity of the allegations of the complaint. . . . Rather, those
allegations are tempered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evidence submitted in sup-
port of a defendant’s motion to dismiss conclusively establish that jurisdic-
tion is lacking, and the plaintiff fails to undermine this conclusion with
counteraffidavits . . . or other evidence, the trial court may dismiss the
action without further proceedings.’’ (Citation omitted; internal quotation
marks omitted.) Caron v. Connecticut Pathology Group., P.C., 187 Conn.
App. 555, 563–64, A.3d (2019); Norris v. Trumbull, 187 Conn. App.
201, 209–10, 201 A.3d 1137 (2019).
2
Paragraph 12 of the real estate purchase agreement provides: ‘‘The [plain-
tiff] assumes all risk of loss or damage to the [property] until closing and
the PURCHASER assumes same upon closing. If any damage to the [prop-
erty] shall not be restored prior to closing PURCHASER shall be required
to close title to the [property] and shall receive in an amount not to exceed
the purchase price all insurance monies recovered and recoverable on
account of such damage. In the event of damage or loss [the plaintiff] shall
immediately notify PURCHASER thereof and furnish to PURCHASER a
written statement of the amount of insurance, if any, payable on account
thereof.’’
3
Paragraph 17 of the real estate purchase agreement provides in relevant
part: ‘‘Notwithstanding the transfer of title, if a closing is had the [plaintiff]
shall be entitled at its election to lease back the apartment located in the
front of the building above the barber shop as presently configured and the
small first floor one room office identified as Suite 1 for a term of one year
from closing . . . . At PURCHASERS election [the plaintiff] may lease
either or both of said units for a further one year terms at an increased
rental . . . .’’