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***********************************************
KARL KLASS v. LIBERTY MUTUAL
INSURANCE COMPANY
(SC 20451)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 38a-316e (a)), ‘‘when a covered loss for real property
requires the replacement of an item or items and the replacement item
or items do not match adjacent items in quality, color or size, the insurer
shall replace all such items with material of like kind and quality so as
to conform to a reasonably uniform appearance.’’
The plaintiff, whose real property was insured under a homeowners insur-
ance policy issued by the defendant insurance company, filed in the
trial court an application to compel appraisal following damage to the
roof of his home. The defendant had accepted that the damage to the
roof was a covered loss under the policy and issued an estimate to
replace the slopes of the roof that had missing shingles. Thereafter, the
plaintiff’s contractor provided an estimate that contemplated replace-
ment of the entire roof in order to match the front and rear roof slopes,
which was more costly than the defendant’s estimate. As a result of the
parties’ different estimates, the plaintiff notified the defendant that he
was demanding appraisal under the policy, which provided that any
dispute as to ‘‘amount of loss’’ is to be resolved by a panel comprised
of a disinterested appraiser selected by each party and an umpire
selected by those appraisers. The trial court initially denied the plaintiff’s
application to compel appraisal, but, after the plaintiff filed a motion
to reargue and reconsider, and the court granted that motion, the court
rendered judgment granting the plaintiff’s application. The defendant
appealed, claiming, inter alia, that the dispute between the parties was
ultimately a coverage dispute and that it was therefore improper for
the trial court to compel appraisal before it resolved the legal issue
regarding the coverage dispute. Held:
1. The trial court did not abuse its discretion in granting the plaintiff’s motion
to reargue and reconsider, as the court’s decision to grant the motion
implied that it agreed with the plaintiff that the court’s initial denial of
the plaintiff’s application to compel appraisal was in error.
2. The defendant could not prevail on its claim that the trial court had
improperly granted the plaintiff’s application to compel appraisal: when
an insurer concedes the existence of a covered peril to an insured’s
premises, issues concerning the extent of the insurer’s obligation under
§ 38a-316e (a) to replace adjacent, undamaged items to achieve a reason-
ably uniform appearance are a component of the amount of loss and
are, therefore, part of the appraisal process, as the legislative history
of the statute reflected that the legislature intended to codify the existing
insurance industry practice of restoring damaged property to a compara-
ble preloss condition and contemplated that the determination of match-
ing would be subjective, made on a case-by-case basis, and resolved
through the appraisal process, and case law from other jurisdictions
was consistent with that approach; in the present case, the defendant
conceded that the damage to the plaintiff’s roof was a covered loss
under the policy, and the parties’ dispute regarding how many shingles
needed to be replaced in order to make the plaintiff whole was a factual
dispute that fell within the scope of the policy’s appraisal clause.
Argued March 25, 2021—officially released January 11, 2022*
Procedural History
Action for an order to compel the defendant to pro-
ceed with an appraisal pursuant to a homeowners
insurance policy issued by the defendant, brought to
the Superior Court in the judicial district of Ansonia-
Milford, where the court, Hon. Arthur A. Hiller, judge
trial referee, granted the application and, exercising the
powers of the Superior Court, rendered judgment order-
ing the defendant to proceed with an appraisal, from
which the defendant appealed. Affirmed.
John A. Donovan III, with whom, on the brief, were
Anthony J. Antonellis, Kathleen C. Schaub and Bren-
dan L. Labbe, for the appellant (defendant).
Michael J. LeMoult, with whom were Jon D. Biller
and Brianna M. Kastukevich, for the appellee (plain-
tiff).
Karen L. Dowd and Brian S. Goodman, pro hac vice,
filed a brief for the National Association of Public Insur-
ance Adjusters as amicus curiae.
Jason Cieri filed a brief for United Policyholders as
amicus curiae.
Opinion
McDONALD, J. Connecticut’s insurance law provides
that, ‘‘[w]hen a covered loss for real property requires
the replacement of an item or items and the replacement
item or items do not match adjacent items in quality,
color or size, the insurer shall replace all such items
with material of like kind and quality so as to conform
to a reasonably uniform appearance.’’ General Statutes
§ 38a-316e (a) (matching statute). The principal issue
in this case is whether a dispute as to the extent of an
insurer’s replacement obligation under the matching
statute is a question properly relegated to the appraisal
arbitral process or a question of coverage to be resolved
by the court in the first instance before appraisal may
proceed. The defendant, Liberty Mutual Insurance Com-
pany, appeals from the trial court’s judgment granting
the application of the plaintiff, Karl Klass, to compel
appraisal with regard to such a dispute. We affirm the
trial court’s judgment.
The record reveals the following undisputed facts
and procedural history. In 2018, the plaintiff contacted
his insurer, the defendant, to report damage to the roof
of his home. The defendant sent a representative to
examine the loss, who—consistent with the plaintiff’s
observation—noticed a few shingles missing from the
dwelling portion of the rear slope of the roof. The repre-
sentative concluded that the missing shingles were con-
sistent with wind damage, a covered loss under the
homeowners policy of the plaintiff. The defendant accept-
ed coverage and issued an estimate to replace the rear
slopes of both the dwelling roof and the attached garage
roof. The plaintiff’s contractor inspected the roof and
provided an estimate that contemplated replacement
of the plaintiff’s entire roof, dwelling and attached
garage, at nearly double the cost of the defendant’s
estimate.
As a result of the parties’ different repair estimates,
the plaintiff notified the defendant that he was demand-
ing appraisal under his homeowners policy. The policy
provides that a dispute as to ‘‘amount of loss’’ is to
be resolved by a panel comprised of a disinterested
appraiser selected by each party and an umpire selected
by those appraisers, effectively an arbitration panel.1
See Covenant Ins. Co. v. Banks, 177 Conn. 273, 279–80,
413 A.2d 862 (1979) (holding that appraisal clause in
insurance policy constituted ‘‘ ‘written agreement to
arbitrate’ ’’ and, thus, was governed by arbitration stat-
utes).
In a written reply, the defendant took the position
that the plaintiff was not entitled to invoke the appraisal
process in the absence of a ‘‘competing’’ estimate (i.e.,
one that addressed the claim for which the defendant
had accepted coverage). The defendant stated that any
dispute regarding the matching of the front and rear
roof slopes was a question of coverage rather than an
issue for appraisal. Nevertheless, citing its interest in
amicably resolving the dispute, the defendant agreed
to appoint an appraiser to investigate the loss while
reserving its right to contest the appraisal panel’s author-
ity to decide an issue of coverage.
The defendant’s appraiser thereafter inspected the
plaintiff’s roof and issued a report concluding that,
‘‘ ‘given the roof configuration, it is reasonable to con-
clude that the shingles along the [east facing] (rear)
slopes and ridge caps of the residence and garage can
be replaced such that a reasonable uniform appearance
of the roof covering is maintained.’ ’’ The defendant
cited these conclusions in a letter it thereafter sent to
the plaintiff denying ‘‘coverage’’ for the front slopes of
the plaintiff’s roof. The defendant noted that its adjust-
ment of the claim—providing for the replacement of
the entire rear slopes of both the dwelling and garage
roofs—exceeded the requirements of the matching stat-
ute. In light of its denial of ‘‘coverage’’ for the front
roof slopes, it contended that there was no valuation
issue remaining for the appraisal process.
The plaintiff subsequently filed an application to com-
pel appraisal in the Superior Court pursuant to General
Statutes §§ 38a-307 and 52-410, casting the dispute
between the parties as one concerning the amount of
loss under the subject policy. The defendant filed an
objection to the application, characterizing the dispute
as one involving coverage, which, as a purely legal issue,
must be resolved by the courts before an appraisal can
proceed. In support of that proposition, the defendant
cited a Second Circuit case, Milligan v. CCC Informa-
tion Services Inc., 920 F.3d 146 (2d Cir. 2019). The
plaintiff then filed a motion requesting that the trial
court order that any purported coverage dispute does
not preclude the parties from moving forward with an
appraisal, citing Giulietti v. Connecticut Ins. Place-
ment Facility, 205 Conn. 424, 534 A.2d 213 (1987), as
support.
The trial court initially issued a summary decision
denying the plaintiff’s application to compel appraisal,
citing Milligan for the proposition that ‘‘the issue of
coverage [must] be decided before the court makes a
determination whether an appraisal is required.’’ The
plaintiff filed a motion to reargue and reconsider,
contending that the trial court had overlooked control-
ling precedent—namely, this court’s decision in Giu-
lietti—and had misapprehended Milligan. The defen-
dant objected to the plaintiff’s motion, arguing that the
plaintiff failed to demonstrate that there was some
decision or principle of law that had been overlooked
that would have controlling effect on the case. The
trial court granted the plaintiff’s motion to reargue and
reconsider, and, following supplemental briefing,
issued an order directing the parties to proceed to
appraisal. In reaching its decision, the trial court
explained that it had misapprehended Milligan and con-
cluded that Milligan simply confirms that appraisers
cannot make coverage determinations. In light of that
conclusion, the court rendered judgment granting the
plaintiff’s application to compel appraisal. The defen-
dant appealed from the trial court’s judgment to the
Appellate Court, and we thereafter transferred the
appeal to this court. See General Statutes § 51-199 (c)
and Practice Book § 65-1.
The defendant raises three claims on appeal. First,
it claims that the trial court improperly granted the
plaintiff’s motion to reargue and reconsider following
its initial denial of the plaintiff’s application to compel
appraisal. Second, it contends that the dispute between
the parties is ultimately a coverage dispute, and, thus,
it was improper for the trial court to compel appraisal
before the legal issue regarding the coverage dispute
was resolved by the court. Finally, to resolve the pur-
ported coverage dispute, the defendant asks this court
to adopt an interpretation of the matching statute that
would limit the scope of replacement to, at most, the
rear slopes of the plaintiff’s roof.
We conclude that the trial court properly granted the
plaintiff’s application to compel appraisal. Because that
conclusion rests in large part on our determination that
the dispute between the parties is an appraisable dis-
pute not involving coverage, we need not address the
defendant’s claims relating to resolution of coverage
disputes.
I
The defendant’s contention that the trial court improp-
erly granted the plaintiff’s motion to reargue and recon-
sider merits little discussion. We review the adjudica-
tion of a motion to reargue and reconsider for an abuse
of discretion; see Weiss v. Smulders, 313 Conn. 227,
261, 96 A.3d 1175 (2014); which means that ‘‘every rea-
sonable presumption should be given in favor of the
correctness of the court’s ruling. . . . Reversal is
required only [when] an abuse of discretion is manifest
or [when] injustice appears to have been done.’’ (Inter-
nal quotation marks omitted.) Patino v. Birken Mfg.
Co., 304 Conn. 679, 698, 41 A.3d 1013 (2012).
‘‘[T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address [alleged inconsistencies in the trial court’s
memorandum of decision as well as] claims of law that
the [movant] claimed were not addressed by the court.
. . . [A] motion to reargue [however] is not to be used
as an opportunity to have a second bite of the apple
[or to present additional cases or briefs which could
have been presented at the time of the original argu-
ment] . . . .’’ (Internal quotation marks omitted.) Hud-
son Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d
260 (2012); see Rider v. Rider, 200 Conn. App. 466, 486
n.14, 239 A.3d 357 (2020).
The trial court did not abuse its discretion in granting
the plaintiff’s motion to reargue and reconsider. In its
initial decision denying the plaintiff’s application to
compel appraisal, the trial court cited the Second Cir-
cuit’s decision in Milligan for the proposition that cov-
erage determinations must precede appraisal; Milligan
v. CCC Information Services, Inc., supra, 920 F.3d 152;
without responding to the plaintiff’s contention that
this court stated a different rule in Giulietti and that
Milligan should not be interpreted to conflict with Giu-
lietti. The trial court’s decision to grant reconsideration
implies that it agreed with the plaintiff that it had over-
looked Giulietti and that its prior order was in error.
‘‘If a court believes that it has made a mistake, there
is little reason, in the absence of compelling circum-
stances to the contrary, to stick slavishly to a mistake.’’
Beeman v. Stratford, 157 Conn. App. 528, 540, 116 A.3d
855 (2015).
II
We therefore consider the defendant’s claim that the
trial court improperly granted the plaintiff’s application
to compel appraisal. The defendant makes several argu-
ments regarding the propriety of this decision, all of
which rest on the premise that the dispute between the
parties is one pertaining to the legal question of cover-
age.2 Although not expressly stated, we interpret the
trial court’s summary order as an implicit rejection of
that premise. In its final decision, the trial court cited
Milligan as holding ‘‘that appraisers cannot make cov-
erage determinations [or decide] questions of law.’’3
The only dispute on which the plaintiff sought appraisal
was the extent of the defendant’s replacement obliga-
tion pursuant to the matching statute. The trial court
thus would not have ordered the parties to proceed
to appraisal unless it viewed the dispute as a factual
determination that did not pertain to coverage. There-
fore, the threshold, and ultimately dispositive, issue
before us is whether a dispute as to the scope of an
insurer’s replacement obligation under the matching
statute is a question of coverage to be resolved by the
courts or a question of the amount of loss to be resolved
by the appraisal panel. We conclude that it is the latter.
With regard to the standard of review, although the
plaintiff is correct that whether the insurance policy
manifests the parties’ intent to arbitrate a matter is
generally a question of fact subject to review for clear
error; see A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn.
604, 608–609, 577 A.2d 709 (1990); the legal obligation
at issue in the present case is one engrafted by operation
of law as a result of the legislature’s enactment of the
matching statute. See Garcia v. Bridgeport, 306 Conn.
340, 351, 51 A.3d 1089 (2012). The relevant question in
this case, therefore, is whether the legislature consid-
ered determinations like the one before us as a question
relating to the amount of loss to be determined in the
appraisal process or, alternatively, by a court when
determining an insurer’s coverage responsibilities. This
is a question of law subject to plenary review. See, e.g.,
Financial Consulting, LLC v. Commissioner of Ins.,
315 Conn. 196, 209, 105. A.3d 210 (2014); Nelson v. State,
99 Conn. App. 808, 813, 916 A.2d 74 (2007).
Our analysis begins with the statutory text. See Gen-
eral Statutes § 1-2z (permitting court to consider extra-
textual sources only when statutory text is ambiguous
or construction yields absurd or unworkable result).
The matching statute provides in relevant part: ‘‘When
a covered loss for real property requires the replace-
ment of an item or items and the replacement item or
items do not match adjacent items in quality, color or
size, the insurer shall replace all such items with mate-
rial of like kind and quality so as to conform to a reason-
ably uniform appearance. . . .’’ General Statutes § 38a-
316e (a). Plainly, the text of the statute does not resolve
the dispute before us. The statute does not explicitly
indicate whether the resolution of matching disputes
are to be decided by the courts in the first instance or
by an appraisal panel; nor does it expressly characterize
the scope of an insurer’s replacement obligation as a
question of coverage or one relating to amount of loss.
By making a ‘‘covered loss’’ the precondition to an
insurer’s replacement obligation, however, the statute
appears to suggest that the replacement obligation is
of a different nature than the coverage obligation. More-
over, the guideposts for the making of such decisions—
‘‘adjacent’’ and ‘‘reasonably uniform appearance’’—are
strongly indicative of factual judgments based on visual
inspection rather than legal determinations. General
Statutes § 38a-316e (a); see Welles v. East Windsor, 185
Conn. 556, 560, 441 A.2d 174 (1981) (stating that ‘‘[t]he
term ‘adjacent’ has no fixed meaning but must, instead,
be interpreted in light of the relevant surrounding cir-
cumstances’’ and is ‘‘[n]ecessarily relative’’); Webster’s
Ninth New Collegiate Dictionary (1985) p. 1290 (defin-
ing ‘‘uniform’’ as ‘‘presenting an unvaried appearance
of surface, pattern, or color’’).
Because the text of the statute does not unambigu-
ously answer the question before us, we look to extra-
textual sources for guidance. See, e.g., Mayer v. His-
toric District Commission, 325 Conn. 765, 775, 160
A.3d 333 (2017) (‘‘[w]hen a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter’’ (internal quotation marks omit-
ted)). We begin with the legislative history of the match-
ing statute, which is instructive in two respects. First,
it reflects that the legislature intended to codify the
existing insurance industry practice. See 56 H.R. Proc.,
Pt. 8, 2013 Sess., pp. 2402–2403, remarks of Representa-
tive Robert W. Megna. Apparently, some insurers had
not been following industry practice and were replacing
only damaged portions of covered property without
regard to whether the property was restored to a compa-
rable preloss condition. See id., p. 2403, remarks of
Representative Megna; Conn. Joint Standing Committee
Hearings, Insurance and Real Estate, Pt. 4, 2013 Sess.,
pp. 1115, 1119, remarks of Phil Flaker, public insurance
adjuster. Second, that history reveals that the legislature
contemplated that matching would be a ‘‘subjective’’
determination made on a case-by-case basis; 56 H.R.
Proc., supra, pp. 2418–19, remarks of Representative
Megna; with disputes resolved through the appraisal
process. Representative Megna, the primary sponsor of
the bill, explained that, if the insured and insurer dis-
agree over the necessary scope of replacement, ‘‘they
have a process in most policies called the appraisal
process. They can—they can start that process going
if they contest it.’’4 (Emphasis added.) Id., p. 2422. The
legislative history is devoid of any contrary indication
that the legislature viewed the extent of an insurer’s
replacement obligation as a coverage issue or disputes
as to matching as matters to be resolved by courts in
the first instance.
The conclusion supported by the text of the statute
and by its legislative history is consistent with case
law from other jurisdictions. Other courts that have
addressed this issue—whether applying their version
of a matching statute or recognizing industry practice—
have treated similar disputes as within the purview of
appraisal. For instance, in In re Pottenburgh v. Dryden
Mutual Ins. Co., 55 Misc. 3d 775, 48 N.Y.S.3d 885 (2017),
following a vandalism incident that gave rise to a cov-
ered loss under the homeowners policy of the insured,
the insurer submitted an estimate for replacement of
the siding on the garage wall that had been vandalized,
while the insured submitted an estimate for replace-
ment of the siding on all of the garage walls. Id., 776–77.
The insured’s estimate for full replacement was based
on the lack of availability of siding for installation on
the vandalized wall that would match the faded color
of the undamaged siding on the remaining walls. Id.,
777. The insurer refused to participate in the appraisal
process on the ground that the dispute was one regard-
ing the scope of coverage, i.e., the insured sought pay-
ment for components of the home that were not ‘‘cov-
ered’’ because they did not sustain direct physical
damage from the vandalism incident. Id. The trial court
concluded that the disagreement between parties was
an appraisable dispute. The court noted that the insurer
had not denied liability for damages sustained by the
vandalism incident. Id., 778. Rather, ‘‘the basis for [the
insurer’s] objections to an appraisal is limited to the
extent of work required to repair the damage caused
by the vandalism incident. Such disputes are factual
questions that fall squarely within the scope of the poli-
cy’s appraisal clause . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) Id.
The Supreme Court of Minnesota similarly character-
ized the extent of the insurer’s replacement obligation
to ensure matching ‘‘as mere incidents to a determina-
tion of the amount of loss or damage, [which] are appro-
priate to resolve in an appraisal in order to ascertain
the amount of loss.’’ (Internal quotation marks omitted.)
Cedar Bluff Townhome Condominium Assn., Inc. v.
American Family Mutual Ins. Co., 857 N.W.2d 290,
293 (Minn. 2014); see id. (reviewing appraisal panel’s
determination as to whether insurer was obligated to
replace siding on only sides of building damaged by
hail, which was covered loss under policy, or on all
sides to ensure matching); see also Auto-Owners Ins.
Co. v. Summit Park Townhome Assn., 100 F. Supp. 3d
1099, 1104 (D. Colo. 2015) (holding that, while apprais-
ers cannot resolve parties’ legal issues, they can make
factual conclusions, such as ‘‘address[ing] the cost of
replacing undamaged property to achieve matching’’);
State Farm Lloyds v. Johnson, 290 S.W.3d 886, 891
(Tex. 2009) (‘‘Sometimes it may be unreasonable or
even impossible to repair one part of a roof without
replacing the whole. The policy provides that [the
insurer] will pay reasonable and necessary costs to
‘repair or replace’ damaged property, and repair or
replacement is an ‘amount of loss’ question for the
appraisers.’’ (Footnote omitted.)); Edelman v. Certain
Underwriters at Lloyds, London, Massachusetts Supe-
rior Court, Docket No. 1784CV02471 (May 7, 2019) (‘‘to
the extent the [insurer] disputes the amount of matching
loss . . . a reference proceeding [namely, appraisal]
may be appropriate’’). The defendant cites no case law
adopting a contrary view.5
In this regard, we observe that the defendant’s own
conduct in this case was consistent with insurance
industry practice and supports the propriety of having
appraisers decide the extent of the insurer’s replace-
ment obligation to ensure matching of adjacent items.
The defendant’s own appraiser reached a conclusion
on the very issue that the defendant claims is a legal
question that is improper for resolution by appraisers.
The report by the defendant’s appraiser stated that the
purpose of his examination of the plaintiff’s property
was to ‘‘determine the scope of damage to the roof
. . . .’’ He noted that, on the basis of his examination,
both sides of the roof presumably were not visible from
the ground at the same time and, in light of that fact,
reached a conclusion that replacement of only the dam-
aged rear sides of the roofs and the roof ridges ‘‘would
[not] compromise the uniform appearance of the roof
covering.’’ The defendant’s posture in this case also
undermines its position that the present dispute raises
a question of law. The defendant argued in its trial
brief that the parties’ dispute turned on the judicial
construction of ‘‘ ‘reasonable uniform appearance’ ’’
but then argued in its appellate brief that the dispute
turns on construction of ‘‘ ‘adjacent.’ ’’ None of the
defendant’s briefs, however, offered a definition for
either term. At oral argument before this court, the
defendant proffered a definition of ‘‘adjacent,’’ but one
suited to resolution of the present case, not a universally
applicable definition.
The defendant’s reliance on Kamansky v. Liberty
Mutual Ins. Co., Superior Court, judicial district of Hart-
ford, Docket No. CV-XX-XXXXXXX-S (April 30, 2019) (68
Conn. L. Rptr. 449), to support its position is misplaced.
The court in Kamansky was faced with a question of
pure statutory construction, presented in a declaratory
judgment action, as to whether an insurer’s obligation
to replace ‘‘all such items’’ was limited to ‘‘adjacent’’
items or extended to all items of the same kind as
the damaged item, adjacent or not, so as to create a
reasonably uniform appearance.6 Id. This question
could be—and ultimately was—resolved without refer-
ence to specific facts, and the court’s construction
applied universally.
It appears to us that, at bottom, the defendant’s under-
lying concern is that § 38a-316e (a) employs terms that
afford too much discretion to decide what is ‘‘adjacent’’
and what is necessary to create a ‘‘reasonably uniform
appearance.’’ In response to that concern, we note that
the appraisal panel’s umpire, in exercising their discre-
tion to make the matching determination in this case,
ultimately may agree with the defendant’s appraiser
that the defendant’s obligation extends only to the rear
sides of the roofs and the roof ridges. Alternatively, the
umpire may conclude that the defendant is required to
repair the plaintiff’s entire roof. Regardless, it seems
to us that the necessarily fact intensive, case-by-case
inquiry inherent in the task of matching requires that
appraisers be afforded discretion in making matching
determinations. We further note that, if the statutory
terms are too elastic, the defendant’s recourse is with
the legislature. See, e.g., Neighborhood Assn., Inc. v.
Limberger, 321 Conn. 29, 45, 136 A.3d 581 (2016) (‘‘[t]o
the extent that the plaintiff’s concerns arise from the
expansive definitions in the act, its recourse lies with
the legislature’’).
We conclude that, when an insurer concedes the
existence of a covered peril to an insured’s premises,
issues concerning the extent of the insurer’s obligation
to replace adjacent, undamaged items to achieve a rea-
sonably uniform appearance are a component of the
‘‘amount of loss’’ and are, therefore, part of the appraisal
process. Here, the defendant concedes that the damage
to the plaintiff’s roof resulting from wind damage was
a covered loss under the homeowners policy of the
plaintiff. The parties’ disagreement regarding how many
shingles need to be replaced—whether it be only the
missing shingles, the rear slopes of the garage and
dwelling roofs, or the entire roof—in order to make the
plaintiff whole is a factual dispute that falls within the
scope of the insurance policy’s appraisal clause.
The judgment is affirmed.
In this opinion the other justices concurred.
* January 11, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The appraisal clause in the defendant’s policy essentially mirrors the
one in the standard form set forth in General Statutes § 38a-307.
2
For example, the defendant argues that, if we conclude that the appraisal
panel has the authority to decide this coverage dispute, the courts should
review the decision de novo, and that this court should resolve this coverage
dispute by interpreting the statutory terms ‘‘adjacent items’’ and ‘‘reasonable
uniform appearance’’ in § 38a-316e (a) to determine its replacement obliga-
tion to the plaintiff under the matching statute.
3
The parties agreed, and the law is well settled, that—in the absence of
a statutory provision to the contrary—coverage is a legal question for the
courts. See, e.g., Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 600
F.3d 190, 203 (2d Cir. 2010); Johnson v. Nationwide Mutual Ins. Co., 828
So. 2d 1021, 1025–26 (Fla. 2002); Quade v. Secura Ins., 814 N.W.2d 703, 706
(Minn. 2012); Clark v. Sputniks, LLC, 368 S.W.3d 431, 436 (Tenn. 2012);
Factory Mutual Ins. Co. v. Citizens Ins. Co. of America, 288 Wis. 2d 730,
736, 709 N.W.2d 82 (App. 2005).
4
Representative Megna contemplated a situation factually similar to the
one before us: ‘‘[I]f a—a claim is [made] today, you could have an insurance
company representative come out and say, you know, I’m just going to
replace one piece of siding, I don’t care that the other siding is [twenty]
years old and faded by the sun. They could actually make that argument
now. It’s not common practice so they can do that. If they do and the
homeowner or the business owner wants to contest it, they have a process
in most policies called the appraisal process. They can—they can start that
process going if they contest it.’’ 56 H.R. Proc., supra, p. 2422. The National
Association of Public Insurance Adjusters filed an amicus curiae brief in
support of the plaintiff, in which it confirmed that matching determinations
have been routinely performed as a part of the appraisal process.
5
The defendant cites cases holding that questions of causation (i.e., how
much of the damage to the affected property was caused by a covered
event) present an issue of coverage. We view this determination to be an
entirely distinct question from the one raised in the present case. Moreover,
there is a split of authority on the question of whether causation is a matter
of coverage; compare Quade v. Secura Ins., 814 N.W.2d 703, 706 (Minn.
2012) (holding that appraiser’s evaluation of ‘‘amount of loss’’ requires con-
sideration of causation), with Rogers v. State Farm Fire & Casualty Co.,
984 So. 2d 382, 391–92 (Ala. 2007) (limiting appraiser’s duty to determining
monetary value of property damage and, accordingly, deciding that apprais-
ers cannot make determinations as to causation); and the present case does
not provide us with the occasion to weigh in on that debate. We note that,
although we rely on one case that decided the causation question, State
Farm Lloyds v. Johnson, supra, 290 S.W.3d 891, we rely on it only for the
Texas Supreme Court’s acknowledgment that the determination of whether
replacement must extend beyond the damaged items is an amount of loss
question for appraisers.
6
The defendant misconstrues the trial court’s decision in Kamansky as
concluding that the undamaged sides of the insured’s house were not ‘‘adja-
cent’’ to the damaged side. In Kamansky, the insured conceded that the
undamaged garage sides were not ‘‘adjacent’’ to the damaged side. Kaman-
sky v. Liberty Mutual Ins. Co, supra, 68 Conn. L. Rptr. 451. Therefore, the
issue of whether nondamaged sides were ‘‘adjacent’’ to the damaged garage
siding was not before the court.