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R & P REALTY COMPANY ET AL. v.
PEERLESS INDEMNITY
INSURANCE COMPANY
(AC 40864)
Lavine, Moll and Bishop, Js.
Syllabus
The plaintiffs, R Co. and U Co., sought to recover damages from the defen-
dant insurance company for breach of contract. R Co. had leased certain
property to U Co., which operated a business in a building on the
property that was damaged by an overload of snow and ice on its roof.
At that time, the defendant provided a policy of casualty insurance to
the plaintiffs, who filed an insurance claim for the damage to the building.
The defendant accepted that the roof had been damaged by an event
covered by the policy and agreed that replacing the roof and its support-
ing structures was necessary. After the parties had engaged in an adjust-
ment process, the defendant remitted a payment to the plaintiffs in the
amount of $167,006.03, upon which the parties had settled, and a portion
of which was allocated to the cost of demolishing the existing roof. As
part of the rebuilding process, a company retained by the plaintiffs
found that asbestos containing material was present in at least two
small areas of the roofing membrane and that lead based paint was
detected on a ceiling located in the building. The cost of demolishing
and removing all of the old roofing material in a safe and safety compliant
manner was $90,139.26. The defendant refused to pay the additional
demolition costs, and this action followed. The trial court rendered
judgment for the defendant on the breach of contract count, from which
the plaintiffs appealed to this court. They claimed that the trial court
erroneously concluded that the defendant did not breach the policy by
declining to cover the increased demolition costs resulting from the
presence of asbestos and lead in the building. Specifically, the plaintiffs
contended that the trial court improperly found that the increased demo-
lition costs constituted replacement costs, rather than being a compo-
nent of the actual cash value of the plaintiffs’ loss, and that the plaintiffs
failed to provide reasonable notice to the defendant of their claim seek-
ing recovery for the increased demolition costs. Held that the plaintiffs
having failed to provide this court with an adequate record, this court
declined to address the merits of their claim on appeal: although the
trial occurred over two days, the plaintiffs provided this court with only
a partial transcript consisting of the testimony of a single witness on
the second day of trial, and in the absence of transcripts of the entire
trial, this court could not evaluate the plaintiff’s arguments in support
of their appellate claim without resorting to speculation; accordingly,
the judgment of the trial court was affirmed.
Argued March 14—officially released October 1, 2019
Procedural History
Action to recover damages for breach of contract
brought to the Superior Court in the judicial district of
New Haven, where the matter was tried to the court,
Pittman, J.; judgment for the defendant, from which
the plaintiffs appealed to this court. Affirmed.
Richard F. Connors, for the appellants (plaintiffs).
Heather J. Adams, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiffs, R & P Realty Company
and Unger’s Floor Covering, Inc., appeal from the judg-
ment of the trial court, following a court trial, rendered
in favor of the defendant, Peerless Indemnity Insurance
Company, on count one of their operative complaint
sounding in breach of contract. On appeal, the plaintiffs
claim that the trial court erred in concluding that the
defendant did not breach the parties’ casualty insurance
policy by declining to pay for the increased costs of
demolition resulting from the presence of asbestos and
lead within the insured property, which the plaintiffs
discovered after the defendant had remitted an initial
insurance payout to which the parties agreed. We con-
clude that the record is inadequate for our review, and,
accordingly, we decline to review the plaintiffs’ claim
and, thus, affirm the judgment of the trial court.
The following facts, as found by the trial court in its
memorandum of decision or as undisputed in the
record, and procedural history are necessary for our
discussion. At all relevant times, R & P Realty Company
owned real property located at 915 Grand Avenue in
New Haven, which it leased to Unger’s Floor Covering,
Inc., a floor covering business in an older brick building
situated on the property. In February, 2011, the building
was damaged by an overload of snow and ice on its
roof. At that time, the defendant provided a policy of
casualty insurance (policy) to the plaintiffs. Pursuant
to the policy, the plaintiffs filed an insurance claim for
the damage to the building caused by the snow and ice
overload. The defendant accepted that the roof had
been damaged by an event covered by the policy and
agreed with the plaintiffs that replacing the roof and
its supporting structures was necessary. On October
17, 2012, after the parties had engaged in an adjustment
process, the defendant remitted a payment to the plain-
tiffs in the amount of $167,006.03, upon which the par-
ties had settled. The payment included the cost for
removing and rebuilding the roof with new supporting
structures, reconfiguring certain heating and ventilation
equipment and electric routes, and repairing or renovat-
ing certain interior areas and finishes. Of the
$167,006.03 paid by the defendant to the plaintiffs,
$26,738.83 was allocated to the cost of demolishing the
existing roof.1
In 2013, the plaintiffs began planning to reconstruct
the damaged roof. As part of the rebuilding process,
they retained a company to test for the presence of
asbestos and lead in the components to be demolished
during the reconstruction of the roof. The company
found that asbestos containing material was present in
at least two small areas of the roofing membrane, and
that lead based paint was detected on an old metal
ceiling located underneath a hanging ceiling in the build-
ing. During the adjustment process, the parties had
contemplated the demolition of those components, but
they never discussed the possible presence of asbestos
or lead therein. The demolition of materials containing
asbestos and lead is subject to Occupational Safety and
Health Administration regulations and state laws, which
require workers involved in such demolition to have
special training, clothing, and apparatus, and that there
be a special means of handling and removing the debris
created by such demolition. According to a revised esti-
mate obtained by the plaintiffs, the cost of demolishing
and removing all of the old roofing material in a safe and
safety compliant manner was $90,139.26. The defendant
refused to pay the additional demolition costs.
On February 14, 2013, the plaintiffs commenced the
present action against the defendant. In count one of
the operative two count complaint filed on September
3, 2013, the plaintiffs alleged that the defendant had
breached the policy by failing to fully compensate them
for the loss they sustained resulting from the damage
to the building caused by the snow and ice overload.2
More specifically, they contended that, in contravention
of the policy, the defendant refused to cover the
increased demolition costs resulting from the presence
of asbestos and lead in the building.3 On April 22, 2014,
the defendant filed an answer and special defenses. On
June 26, 2015, the plaintiffs filed a reply, denying the
allegations set forth in the defendant’s special defenses.
On August 31, 2017, following a two day court trial,
the court issued a memorandum of decision rendering
judgment on count one in favor of the defendant. After
determining that the presence of asbestos and lead in
the building was a latent condition not contemplated
by the parties during the adjustment process, the court
stated in relevant part: ‘‘[T]he defendant insurer might
still be obligated under the policy if it had been given
reasonable notice of the supplemental claim [for the
increased demolition costs]. But it appears that the
issue of asbestos and lead was never presented to the
defendant until nearly the start of this litigation, cer-
tainly more than two years after the date of the loss.
. . . [I]f recovery is sought for the repair or replace-
ment cost, rather than the actual cash value, the policy
requires the [plaintiffs] to first perform the repairs
before the defendant is obligated to pay for these
increased costs.’’ This appeal followed.
On appeal, the plaintiffs claim that the court errone-
ously concluded that the defendant did not breach the
policy by declining to cover the increased demolition
costs resulting from the presence of asbestos and lead
in the building. Specifically, the plaintiffs contend that
the court improperly found that (1) the increased demo-
lition costs constituted replacement costs, rather than
being a component of the actual cash value of the plain-
tiffs’ loss,4 and (2) the plaintiffs failed to provide reason-
able notice to the defendant of their claim seeking
recovery for the increased demolition costs. We decline
to address the merits of this claim because the plaintiffs
have failed to provide this court with an adequate
record.
Practice Book § 61-10 (a) provides: ‘‘It is the responsi-
bility of the appellant to provide an adequate record
for review. The appellant shall determine whether the
entire record is complete, correct and otherwise per-
fected for presentation on appeal.’’ ‘‘The general pur-
pose of [the relevant] rules of practice . . . [requiring
the appellant to provide a sufficient record] is to ensure
that there is a trial court record that is adequate for an
informed appellate review of the various claims pre-
sented by the parties.’’ (Internal quotation marks omit-
ted.) Buehler v. Buehler, 175 Conn. App. 375, 382, 167
A.3d 1108 (2017). This court also has explained that
‘‘[a]n appellate tribunal cannot render a decision with-
out first fully understanding the disposition being
appealed. . . . Our role is not to guess at possibilities,
but to review claims based on a complete factual record
. . . . Without the necessary factual and legal conclu-
sions . . . any decision made by us respecting [the
claims raised on appeal] would be entirely speculative.’’
(Internal quotation marks omitted.) Cianbro Corp. v.
National Eastern Corp., 102 Conn. App. 61, 72, 924
A.2d 160 (2007); see also Calo-Turner v. Turner, 83
Conn. App. 53, 56, 847 A.2d 1085 (2004).
In the present case, the trial occurred over two days.
In claiming that the record is devoid of any evidence to
support the trial court’s findings, however, the plaintiffs
have provided this court only with a partial transcript
consisting of the testimony of a single witness on the
second day of trial. In the absence of transcripts of the
entire trial, we cannot evaluate the plaintiffs’ arguments
in support of their appellate claim without resorting to
speculation. See, e.g., Vasquez v. Rocco, 267 Conn. 59,
71–73, 836 A.2d 1158 (2003) (concluding that plaintiff
failed to provide adequate record regarding whether
trial court’s ruling precluding plaintiff from adducing
certain evidence on cross-examination was harmful).
As previously noted, we decline to do so. See Buehler
v. Buehler, supra, 175 Conn. App. 382 (this court would
not surmise, speculate, or guess at factual predicate for
trial court’s rulings and declined to review appellate
claim where defendant failed to provide complete
record of trial court proceedings); Calo-Turner v.
Turner, supra, 83 Conn. App. 56–57 (same); see gener-
ally Rice v. Housing Authority, 129 Conn. App. 614,
616, 20 A.3d 1270 (2011) (this court unable to determine
whether evidence supported plaintiff’s arguments
regarding granting of motion to set aside verdict where
no transcripts had been filed). Accordingly, we decline
to review the plaintiffs’ claim.
The judgment is affirmed.
1
The court noted that the parties had used ‘‘the ‘actual cash value’ rubric
in agreeing to the loss payout, rather than the restoration or replacement
cost.’’ Generally, the ‘‘actual cash value’’ of a loss is the cost of repairing
or replacing the loss, less depreciation, whereas the ‘‘replacement cost’’ of
a loss is the actual cost of repairing or replacing the loss without a deduction
for depreciation. See Northrop v. Allstate Ins. Co., 247 Conn. 242, 245 n.3,
720 A.2d 879 (1998) (discussing actual cash value and replacement cost in
case involving fire insurance coverage); see also Kellogg v. Middlesex Mutual
Assurance Co., 326 Conn. 638, 641 n.2, 165 A.3d 1228 (2017) (‘‘Many insurance
policies expressly provide that an insured may recover the [actual cash
value] of destroyed property, and subsequently make an additional claim
on a replacement cost basis. . . . [S]uch policies invariably include as a
condition precedent to a supplemental replacement cost recovery a require-
ment that the insured first complete restoration of its property.’’ [Internal
quotation marks omitted.]).
2
In count two of the operative complaint, the plaintiffs alleged that the
defendant had breached the terms of the policy by failing to fully compensate
them for a separate loss they suffered in August, 2011, resulting from damage
to the building caused by a hurricane. The plaintiffs later abandoned that
claim.
3
In addition, the plaintiffs asserted that the policy obligated the defendant
to pay costs associated with the repair and reconstruction of the exterior
walls of the building. The court rejected the plaintiffs’ claim seeking recovery
for the damage to the exterior walls. The plaintiffs have not appealed from
that portion of the court’s judgment.
4
See footnote 1 of this opinion.