Opinion
No. CV 98 0356802
April 11, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR REARGUMENT AND ARTICULATION
The court articulates the bases for its Memorandum of Decision dated February 28, 2003 as per the defendant's Motion For Reargument and Articulation.
1. Count Seven — CUTPA
The plaintiff has offered sufficient evidence to establish a question of fact as to whether there were misrepresentations by the defendant Lincoln or its agent as to the benefits, advantages, conditions or terms of its contract of insurance which it sold to the plaintiff. According to Sec. 38-816 (1), those are unfair practices which are proscribed by the statute. Whether the plaintiff will be able to provide sufficient evidence at the time of trial to prove such allegation cannot be determined at this time, however, as noted, "In a ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine if any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988) (Emphasis added). Accordingly the motion was denied as to Count Seven.
2. Count Four — Negligence
The plaintiff has alleged a variety of ways in which the defendant was negligent in regard to the procurement and maintenance of the insurance policy which it sold to him. A number of ways are acts of common-law negligence and two are alleged as statutory negligence — the violation of Connecticut Statutes Section 38a-482 and Section 38a-297. For the reasons previously set forth, the court has found that determination of those issues is a question of fact and not properly the subject of a motion for summary judgment. The fact that the policy was originally sold to the plaintiff in 1983 — nine years before the promulgation of those statutes — is of no consequence in view of the ruling of this court that the evidence permits a finding that the maintenance of the contract, the discussions and negotiations regarding its terms and provisions, its renewal, and the periodic payment of premiums by the plaintiff, constitute a continuing course of conduct by the defendant which makes those statutes applicable to the allegations in the plaintiff's complaint. For those reasons, the motion for summary judgment was denied.
The evidence supporting the continuous of conduct, as previously noted was also the basis for the determination that the claims of the plaintiff are not barred by the statute of limitations.
3. "Agency"
In support of its argument that ratification of a principal is essential to impute to itself the acts of an agent, the defendant has cited Fawcett v. New Haven Organ Co., a case from 1879 wherein the court noted that as to the acts ". . . the plaintiff had not been mislead by them, in such a sense or to such an extent as to lay the foundation of legal liability. He had paid nothing, and relinquished nothing and . . . it was not shown that he had suffered any loss . . ." Fawcett, id. p. 225 (emphasis added). Those findings are totally inapposite to the allegations in the instant case.
A principal may be liable for the actions of individuals acting with apparent authority or within the scope of their agency. See Hallas v. Boehmke and Dobosz, Inc., 239 Conn. 658, 673-75; Rizza v. Fisher, No. CV 97-0574138S (Mar. 23, 1999).
The existence of agency is normally a question of fact; however, it becomes a question of law when no reasonable juror could find actual or implied agency under the circumstances. See Hallas, supra, 674.
It is evident that summary judgment is inappropriate in this case because there is a genuine issue of material fact concerning the existence of an agency relationship between the parties and whether Fisher acted with apparent authority. Rizza, supra, p. 3899.
It appears that a genuine issue of material fact exists as to whether Fisher acted within the scope of his agency or with apparent authority when he procured the plaintiff's business for Preferred Mutual. Accordingly, Preferred Mutual's motion for summary judgment on this basis must be denied. Rizza, supra, p. 3901.
4. Count Five — Promissory Estoppel and Count Six — Negligent Misrepresentation
The plaintiff has alleged, in the relevant portions of his complaint, that while he did have a copy of the policy, it did not contain the express provisions he claims he had negotiated and paid for through an agent of Lincoln National. He has further alleged that notwithstanding the written terms of the contract, the defendant's agent misrepresented to him that while the policy stated one thing, it really meant another. Those allegations present issues of fact which are not to be decided on a motion for summary judgment.
"The general rule is that where a person of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person's] duty to read it and notice of its contents will be imputed to [that person] if he negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a [person] of reasonable business prudence off . . . guard in the matter." Ursini v. Goldman, 118 Conn. 554, 562 (1934).
The same issue is raised when the defendant asserts that it had a contract with the agent which did not permit the agent to vary the terms of the contract. Did the agent misrepresent his authority is also a question of fact which cannot be decided by a motion for summary judgment.
5. Ursini v. Goldman
See paragraph 4, supra.
6. Statute of Limitations
See paragraph 2, supra.
By the Court,
Joseph W. Doherty, Judge