Summary
interpreting Dorchinsky, in the context of a different notice requirement, to observe that, in Connecticut when a policy requires written notice, the insured is required to provide notice to the insurer in that manner
Summary of this case from Matteson v. Safeco Ins. Co. of Ill.Opinion
CV146017155S
05-25-2017
Donald Ellis v. County Agency, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO REARGUE
Denise D. Markle, J.
On January 23, 2017, this court, Markle, J., issued a written memorandum of decision granting the defendant's, Peerless Insurance Company (Peerless), motion for summary judgment on the ground that there were no genuine issues of material fact that the plaintiff, Donald Ellis, failed to provide timely written notice to the defendant pursuant to the insurance policy, and that such lack of notice was prejudicial to the defendant . By way of background, 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 pursuant to a judgment lien. 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.
There are two defendants in the present case: County Agency, Inc. and Peerless Insurance Co. According to the pleadings and facts presented, County Agency, Inc. was an agent. of Peerless. Here, only Peerless moves for summary judgment and will be referred to as the defendant.
In its decision granting the defendant's motion for summary judgment, this court held that there were no genuine issues of material fact that (1) the only written notice of the subject claim was given to the defendant on March 8, 2014, whereby the plaintiff forwarded documents to the defendant's agent, County Agency, relating to a subsequent foreclosure action against him on a judgment lien; (2) the language of the insurance policy required the plaintiff to " give written notice to us or our agent as soon as practical; " and (3) a default judgment had entered in the first action and the defendant had not participated in that action.
On February 14, 2017, the plaintiff filed a motion to reargue on that ground that this court had improperly granted summary judgment because this court considered whether written notice was provided, as opposed to timely notice, and agreed with the defendant that there was no genuine issue of material fact that timely written notice was not provided to the defendant. The plaintiff asserts that if the court only considered that timely notice was given, then the defendant's claims of prejudice would not apply. In response, the defendant filed an objection to the motion to reargue, claiming that there are no additional facts or legal authorities asserted in the motion, and that the plaintiff was improperly seeking a " second bite of the apple."
In its motion, the plaintiff argues that " while a question of fact as to whether the plaintiff provided timely notice of the underlying claim can be inferred from the memorandum of decision, the court determined the defendant was prejudiced by the lack of written notice--an issue regarding which the defendant carries the burden of proof--notwithstanding that the defendant produced no evidence whatsoever that it was prejudiced by the lack of written notice, as opposed to the lack of timely notice." The plaintiff further argues that the defendant had not met its burden in showing that it was prejudiced by the lack of written notice, and that " [n]ot once in its supporting affidavit does the word 'written' even appear . . ."
On March 2, 2017, this court granted the plaintiff's motion to reargue because it believed, at that time, the plaintiff was claiming that there was a misapprehension of the facts at issue. On March 20, 2017, the court heard argument on the matter. At oral argument the plaintiff states that the defendant's " position has always been no timely notice, not no timely written notice . . . Your Honor found no written notice, and, I think, erroneously, found that the lack of written notice kills my case, and it doesn't, because even if you find no written notice, it's still their burden to prove the prejudice due to the lack of written notice. There's a question of fact as to whether notice, in the first place, was provided here, and that was the point in my motion to reargue." Hearing Transcript, March 20, 2017, p. 7. Moreover, the defendant " didn't even address written notice in their brief. Every bit of their notice argument goes to the fact that they had no notice whatsoever, not that they had no written notice. So, they haven't proven their burden." Hearing Transcript, March 20, 2017, p. 7.
A motion to reargue a final judgment is filed pursuant to Practice Book § 11-11. " [T]he purpose of a reargument is . . . to demonstrate 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 . . ." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001). " Our Supreme Court has held that, [a] judge should hesitate to change his own ruling in a case . . . This admonition has been considered in reference to the court's granting a motion to dismiss. However, the court is also cognizant of the balance in allowing a party to fully and fairly litigate its case. This is relevant to the instant action in which the court has granted the defendant's motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Beale v. Martins, Superior Court, judicial district of Waterbury, Docket No. CV-13-6020940-S, (September 29, 2016, Brazzel-Massaro, J.).
Practice Book § 11-11 provides: " Any motions which would, pursuant to Section 63-1, delay the commencement of the appeal period, and any motions which, pursuant to Section 63-1, would toll the appeal period and cause it to begin again, shall be filed simultaneously insofar as such filing is possible, and shall be considered by the judge who rendered the underlying judgment or decision. The party filing any such motion shall set forth the judgment or decision which is the subject of the motion, the name of the judge who rendered it, the specific grounds upon which the party relies, and shall indicate on the bottom of the first page of the motion that such motion is a Section 11-11 motion. The foregoing applies to motions to reargue decisions that are final judgments for purposes of appeal, but shall not apply to motions under Sections 16-35, 17-2A and 11-12."
This court was, and is still, satisfied that the defendant has met its burden of showing that there exists no genuine issues of material fact that timely written notice was not provided. Attached to its memorandum of law in support of its motion for summary judgment, the defendant attached as exhibits a copy of the insurance policy, an affidavit of a claims specialist attesting to the prejudice of the defendant by the plaintiff's failure to provide timely notice, and a copy of the letter, dated March 8, 2014, sent by the plaintiff's attorney apprising the defendant of the foreclosure action. The evidence presented shows that the underlying claim was an injury that occurred on the plaintiff's property in January 2011, and the first written notice concerning that claim was received by the defendant from the plaintiff in March 2014, over three years after the original loss.
In its memorandum of law in support of summary judgment, the defendant cites to the language of the insurance policy, which outlines the duties of the insured after loss. It argued that " [t]he notice provision at issue provides that '[i]n the case of an accident or occurrence, ' the insured has a duty to '[g]ive written notice to us or our agent as soon as practical.' " (Emphasis added.) The defendant further argues that " [t]he first notice of the claim . . . was the letter from the plaintiff's attorney dated March 8, 2014 . . . more than three years after the loss" and that under the policy, the plaintiff " has an obligation to forward those suit papers to the company or at least to his agent." Hearing Transcript, March 20, 2017, p. 3. This claim is supported by the policy provision. The defendant claims that the plaintiff failed to not only initially notice them of the claim, but also failed to forward the summons and complaint from the underlying premises liability action or any documents related thereto. On the basis of the defendant's motion for summary judgment as well as his oral arguments, it is clear that there is no genuine issue of material fact that the type of notice referred to in the insurance policy was written notice.
" 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:
" Once the moving party has met its burden . . . 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). The only evidence provided by the plaintiff in its memorandum in opposition to the motion for summary judgment was his own sworn affidavit, in which he states that he called an agent within a few days of the accident and told her of the action against him, and also portions of his deposition transcript in which he testifies to the same.
" Connecticut requires two conditions to be satisfied before an insurer's duties can be discharged pursuant to the notice provision of a policy: (1) an unexcused, unreasonable delay in notification by the insured; and (2) resulting material prejudice to the insurer." (Internal quotation marks omitted.) Arrowood Indemnity Co. v. King, 304 Conn. 179, 198, 39 A.3d 712 (2012). " If notice is untimely, a further determination of whether the insurers were prejudiced by the late notice will be necessary." Id., 201. It is the insurer who bears the burden of proving, by a preponderance of the evidence, that it has been prejudiced. Id.
" [C]onstruction of a contract of insurance presents a question of law for the court . . . An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning." (Internal quotations marks omitted.) Johnson v. Connecticut Ins. Guaranty Ass'n, 302 Conn. 639, 643, 31 A.3d 1004 (2011).
The construction and interpretation of a contract of insurance is a question of law for the court, and as a matter of law, the plaintiff was required to provide written notice and forward the suit papers to the defendant or its agent. The plaintiff also argues that there still exists a question of fact as to whether notice was given because he offered evidence that he called the insurance agent. This, however, is not a material issue of fact that precludes summary disposition because, even in light of that evidence, the policy clearly provides that written notice must be given.
Under the second prong in Arrowood, not only does the insurer have to prove insufficient notice, but also that such lack of notice was prejudicial. Here, there is no dispute that a default judgment was entered against the plaintiff in March 2012, and that the injured party brought suit to foreclose on the plaintiff's property in order to recover damages. Entry of a default judgment against an insured is evidence of prejudice; Merritt River Partners v. American Safety Casualty Ins. Co., Superior Court, judicial district of New Haven, CV-04-4004159-S, (January 23, 2006, Thompson, J.); as well as the lack of opportunity for the insurer to investigate a claim and to pursue a compromise or settlement. 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).
The plaintiff asked this court at oral argument to reconsider its use of this case in its decision and that " its validity must be reconsidered in the light of the Arrowood decision . . ." Hearing Transcript, March 20, 2017, p. 12. In Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988), overruled in part by Arrowood Indemnity Co. v. King, supra, 304 Conn. 179, the court overruled Murphy, which had held that the insured had the burden to prove prejudice. Arrowood held that it overruled Murphy " to the extent that it allocated the burden to the insured to disprove prejudice, and we hold that 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." Arrowood Indemnity Co. v. King, supra, 304 Conn. 201. The factors in defining prejudice found in the preceding case law, however, are still valid.
The plaintiff also argues in both his memorandum of law and at oral argument that the word " written" does not appear once in the defendant's affidavit submitted to support prejudice, and thus, the defendant has not met its burden to support summary judgment. Such a reading of the affidavit, however, is narrow, and when read in the context of the motion for summary judgment and entire case, along with the fact that the policy the affiant refers to requires written notice, it is a reasonable inference that when the affiant referenced " notice" she was referencing the type of notice required under the policy. The affiant averred that no notice was received prior to March 2014. The affiant also references the policy between the plaintiff and the defendant.
On the basis of the evidence provided, there are no genuine issues of material fact that the plaintiff: (1) was aware of the case against him in January 2011; (2) did not send written notification, required under the insurance policy, until March 2014; and (3) such notice was sent after a default judgment had entered against him and after any timely remedies to re-open that judgment had expired.
Perhaps this court should have better used the term " timely" written notice, rather than " written notice" in its decision, but it does not influence the ultimate determination that there are no disputed issues of fact and, per the terms of the policy, summary judgment was granted as a matter of law.
For the above reasons, the court declines to alter its prior ruling on the motion for summary judgment.
a. Give written notice to us or our agent as soon as practical which sets forth: (1) The identity of the policy and 'insured'; (2) Reasonably available information on the time, place and circumstances of the accident or 'occurrence'; and (3) Names and addresses of any claimants and witnesses. b. Promptly forward to us every notice, demand, summons or other process relating to the accident or occurrence."