Opinion
CV146017155S
01-12-2017
Donald Ellis v. County Agency, Inc. et al
UNPUBLISHED OPINION
Filed January 23, 2017
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Denise D. Markle, J.
On May 11, 2015, the plaintiff, Donald Ellis, filed a three count amended complaint against the defendants, County Agency, Inc. (County) and Peerless Insurance Co. (Peerless). The plaintiff alleges negligence and breach of implied contract claims against County and a breach of contract claim against Peerless. The present case stems from an action against the plaintiff after a tenant injured himself on the plaintiff's property and the tenant then initiated a foreclosure action to recover his judgment. The plaintiff now seeks to recover against Peerless for its failure to satisfy the judgment in the personal injury action and its refusal to indemnify him against the foreclosure action.
County is an agent of Peerless.
Rho v. Ellis, NNH-CV-11-6024533-S.
Rho v. Ellis, NNH-CV-14-6045170-S.
On October 31, 2016 the parties appeared before the court at short calendar on Peerless' motion for summary judgment. Peerless argues that there is no genuine issue of material fact as to whether (1) the plaintiff gave timely written notice regarding his claim; (2) the late notice was prejudicial; and (3) Peerless had a duty to defend the subsequent foreclosure action. In his objection, the plaintiff argues that because he called County to give notice of the claim, there exists a question of fact as to whether he gave timely notice and the existence of this question of fact renders moot a discussion of any prejudice due to untimely notice.
" Summary judgment is a method of resolving litigation when 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.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which . . . entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
In its special defense, Peerless alleges that the plaintiff failed to give written notice of the claim as required by the policy until more than three years after the loss. Moreover, the late notice was prejudicial because Peerless was precluded from investigating the claim and from defending and settling the lawsuit. The insurance policy between the plaintiff and Peerless contains the following relevant provision:
Duties After Loss. In case of an accident or " occurrence, " the " insured" will perform the following duties that apply. You will help us by seeing that these duties are performed:
a. Give written notice to us or our agent as soon as practical . . . Peerless' Memorandum, Exhibit A, Ins. Policy, p. A-42.
In his objection, the plaintiff attaches portions of his deposition as well as his sworn affidavit in which he claims that shortly after he received the summons and complaint regarding the tenant's alleged injury, he called an agent at County and " informed her that the tenant slipped in the snow on the Premises and got hurt and provided her the information then known to [him]." Plaintiff's Memorandum, Exhibit 2, Ellis Affidavit. He also stated that the agent told him she would " take care of it." Plaintiff's Memorandum, Exhibit 1, Ellis Deposition, p. 45, lines 5-6. The complaint in the tenant's personal injury claim was dated October 13, 2011; Peerless' Memorandum, Complaint in Rho v. Ellis ; and the complaint for the foreclosure of the judgment lien was dated February 7, 2014. Peerless' Memorandum, Complaint in Rho v. Ellis . The plaintiff, however, provided the first written notice to Peerless on March 8, 2014, in a letter written to Peerless by the plaintiff's attorney. Peerless' Memorandum, Exhibit D.
In Dorchinsky v. Windsor Ins. Co., 90 Conn.App. 557, 560, 877 A.2d 821 (2005), the insurer claimed that the insured failed to give timely notice, as outlined in the insurance policy. The insured argued that she telephoned the insurance agent immediately after the accident. Id. The court held, however, that " no genuine issue of fact exists as to when sufficient notice under the policy was provided. The policy plainly requires written notice of a claim . . ." Id., 561. An insured is required to provide notice of a claim against it in the manner in which the policy requires. See Arrowood Indemnity Co. v. King, 304 Conn. 179, 201, 39 A.3d 712 (2012). In the present case, the plaintiff contends that he provided notice when he called an agent at County, but he provides no evidence that he provided any form of written notice until March 8, 2014.
Furthermore, Peerless argues that the late notice was prejudicial. Debra Moore, a claims specialist at Peerless, states, in a signed affidavit, that Peerless was prejudiced by the late notice in that it was precluded from (1) investigating the claim; (2) defending the claim; (3) settling the claim; and (4) contesting the damages claimed by the third party. Peerless' Memorandum, Exhibit B, Moore Affidavit. Peerless was further prejudiced in that a default judgment was rendered against the plaintiff and because of the late notice, Peerless was precluded from filing a timely motion to reopen the judgment. Peerless' Memorandum, Exhibit B, Moore Affidavit. " [A]bsent waiver, an unexcused, unreasonable delay in notification constitute[d] a failure of condition that entirely discharge[d] an insurance carrier from any further liability on its insurance contract . . . That rule was based on the basic principle that contracts should be enforced as written, and that contracting parties are bound by the contractual provisions to which they have given their assent . . ." (Internal quotation marks omitted.) Arrowood Indemnity Co. v. King, supra, 304 Conn. 201. Moreover, " the insurer bears the burden of proving, by a preponderance of evidence, that it has been prejudiced by the insured's failure to comply with a notice provision." Id. The lack of opportunity to investigate a claim and being deprived the opportunity to pursue a settlement or compromise are examples of prejudice. See Hartford Ins. Co. v. Colonia Ins. Co., 58 Conn.App. 39, 44, 750 A.2d 1158, cert. denied, 254 Conn. 907, 755 A.2d 881 (2000).
Peerless also moves for summary judgment on the ground that it has no duty to defend the foreclosure action. Peerless cites to the insurance policy to show that the foreclosure action does not meet the policy definition of coverage, but is rather an equitable action. Occurrence is defined as " an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period in . . . 'bodily injury' or . . . 'property damage.'" Peerless' Memorandum, Exhibit A, Ins. Policy, p. A-27. There is nothing in the insurance policy to suggest that Peerless is required to indemnify a subsequent foreclosure action as a result of a judgment. Moreover, the plaintiff fails to address the issue of whether Peerless was required to indemnify the foreclosure action and include in its memorandum of law any evidence to support that argument.
Peerless has met its burden of showing the absence of any genuine issue of material fact as to whether the plaintiff provided written notice of the claim and whether Peerless was required to indemnify the foreclosure action. Furthermore, the plaintiff failed to present evidence that demonstrates the existence of a disputed factual issue, specifically whether he provided the requisite written notice and whether the policy requires Peerless to indemnify the foreclosure action. For the following reasons, the defendant's motion for summary judgment is granted.