Opinion
No. FST CV 094015635 S
March 17, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
BACKGROUND
On January 8, 2009, the plaintiff, Geico General Insurance Company, commenced declaratory judgment action against defendants, Gilbert Nazarian, Nahid Nazarian, Skander Nazarian (collectively defendants), Esperanza Sanchez and Jairo Castillo. In its amended complaint filed on August 17, 2009, the plaintiff alleges the following facts. By the way of a complaint dated August 20, 2008, Sanchez and Castillo, in their role as co-executors of the estate of Mike Castillo (the decedent), filed a lawsuit against all three of the defendants (the Castillo lawsuit). The Castillo lawsuit stems from an incident that occurred on August 21, 2006, on East Main Street in Stamford. The complaint in the Castillo lawsuit alleges that Gilbert Nazarian and the decedent were operating different motor vehicles that were stopped at a red traffic light. A physical altercation ensued between Gilbert Nazarian and the decedent, and Gilbert Nazarian accelerated his vehicle while the decedent's right arm remained in the automobile. The decedent was subsequently dragged approximately 929 feet and "thrown off of the car and onto the pavement, resulting in his death."
As the motion for summary judgment that is presently before the court has only been filed against the Nazarians, they will be referred to as "the defendants" in this memorandum.
Before this incident, the plaintiff had issued an automobile insurance policy to Nahid Nazarian for the period between May 18, 2006 and November 18, 2006. A certified copy of this policy is attached to the plaintiff's original complaint. Pursuant to the terms of this policy, the insured party was required to provide notice to the plaintiff "[a]s soon as possible after an occurrence." This notice provision required the insured party to provide the following notice: (1) the identity of the insured; (2) the time, place and details of the occurrence; (3) the names and addresses of the injured; (4) the names and addresses of any witnesses; (5) the names and owners of any damaged property and (6) the description and location of the damaged property. The policy provided that the plaintiff could request that this notice be given in writing and that the insured party had the obligation to promptly send any legal papers to the plaintiff if a lawsuit was commenced against those covered under the insurance policy.
Furthermore, the policy required that any insured party had a duty of assistance and cooperation. Included in this duty were obligations to assist the plaintiff with all of the following: (1) investigation of the claim; (2) making settlements; (3) the conduct of lawsuits; (4) enforcement of any right of contribution or indemnity against any person or organization legally responsible for the bodily injury or property damage; (5) attendance of witnesses at trials and hearings and the like and (6) the securing and giving of evidence. The policy further provided that the plaintiff was not obligated to provide coverage for an insured who concealed or misrepresented any facts, engaged in fraudulent conduct or made material false statements relating to the insurance policy. Finally, the insured or any person seeking coverage under the policy was required to submit to an examination under oath as often as the plaintiff may require.
The plaintiff alleges that all three of the defendants have failed to comply with one or more of these conditions, and therefore, they have breached the insurance policy. Accordingly, the plaintiff's prayer for relief requests that the court enter a declaratory judgment stating that the plaintiff is not obligated to defend or indemnify the defendants with regard to the Castillo lawsuit.
The plaintiff is not moving for summary judgment on count four, which is the only count where the plaintiff explicitly alleges that it has no duty to defend or indemnify the defendants in the Castillo lawsuit. Counts one through three only allege no duty to defend or indemnify the defendants as a general principle. The plaintiff's first prayer for relief, however, does request that the court enter a declaratory judgment stating that the plaintiff "is not obligated to defend or indemnify Gilbert Nazarian, Nahid Nazarian, or Skandar Nazarian with regard to the "Castillo lawsuit." In count four, the plaintiff alleges that it has no duty to defend or indemnify because the subject insurance policy excludes coverage for bodily injury or property damage that were caused by intentional acts.
On October 1, 2009, the plaintiff filed a motion for summary judgment, as well as a memorandum of law in support. The plaintiff is moving for summary judgment as to counts one, two and three of its complaint. Attached to the plaintiff's motion are: (1) certified copies of the summons and complaint in the Castillo lawsuit: (2) a notarized affidavit of Eniola Armoogan, who works as a claims analyst for the plaintiff; (3) certified transcripts of the criminal trial against Gilbert Nazarian that occurred in April and May 2008; (4) a certified copy of Gilbert Nazarian's arrest record from the Connecticut Department of Public Safety and (5) the sworn affidavit of Marcia A. Swanhall, who is an employee of the law firm representing the plaintiff. In response, Sanchez and Castillo filed a memorandum of law in opposition on December 4, 2009. Attached to this memorandum of law is the sworn affidavit of Alex J. Martinez, Sanchez and Castillo's counsel, which includes: (1) a copy of a newspaper article from The Advocate dated December 16, 2006; (2) the decedent's death certificate and autopsy report and (3) a copy of Nahid Nazarian's automobile insurance card. On January 20, 2010, Sanchez and Castillo also filed a sworn supplemental affidavit from Andrew Gallagher, who is a sergeant in the Stamford police department.
The defendants who are subject to this motion for summary judgment (the Nazarians) have not filed a memorandum of law in opposition. Nevertheless, the other defendants in the case, Sanchez and Castillo, are contesting the plaintiff's motion for summary judgment.
At oral argument before this court, the plaintiff made numerous objections to the admissibility of certain attestations in the affidavits attached to the memorandum of law in opposition offered by Sanchez and Castillo. Specifically, the plaintiff objected to paragraphs five, eight, fourteen, fifteen, and seventeen in the Martinez affidavit and paragraphs five and seven in the Gallagher affidavit. The grounds for these objections included that the attestations were hearsay, speculative, not based on personal knowledge of the affiant, not relevant and a violation of the best evidence rule, Conn. Code Evid. § 10-1. The body of this memorandum will address these objections when necessary.
CT Page 7148
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).In its memorandum of law, the plaintiff argues that it is entitled to summary judgment because there is no genuine issue of material fact that the defendants have breached their duty to cooperate and to provide timely notice under the terms of the insurance policy. Specifically, the plaintiff's memorandum cites numerous instances where the defendants failed to submit to oral examinations under oath or otherwise refused to cooperate with the plaintiff's requests for information regarding the subject incident. The plaintiff contends that the defendants' duty to cooperate was not excused by the pendency of criminal proceedings, as the Fifth Amendment right against self-incrimination does not justify the defendants' failure to assist their insurance company. Moreover, the plaintiff argues that the defendants breached the notice provision of the insurance policy because they failed to provide notice "as soon as possible" after the occurrence. Finally, the plaintiff contends that the defendants are unable to meet their burden to demonstrate that the plaintiff was not prejudiced by the defendants' lack of cooperation. For all of these reasons, the plaintiff argues that it is entitled to judgment as a matter of law.
Sanchez and Castillo's memorandum of law in opposition argues that Martinez's affidavit, as well as the supplement affidavit of Gallagher, raise genuine issues of fact regarding when the plaintiff first received information regarding the subject incident. As the plaintiff had access to police reports and newspaper accounts of the incident, as well as the decedent's autopsy report, Sanchez and Castillo contend that the plaintiff was not prejudiced by the defendants' delay in giving notice. Alternatively, Sanchez and Castillo argue that the plaintiff should be estopped from claiming breach of contract because the plaintiff "took the position that they will wait and see on Mr. Gilbert Nazarian's outcome in criminal court . . . [The] [p]laintiff made no further attempts to require more information because Plaintiff assumed that Mr. Gilbert Nazarian would be found guilty of the more serious crime thereby excluding the policy." As such, Sanchez and Castillo contend that the plaintiff is not entitled to summary judgment.
THE NOTICE CLAUSE
In its memorandum of law, the plaintiff argues that it is entitled to summary judgment because there is no genuine issue of material fact that the defendants violated the notice provision of the insurance policy. This notice provision, which is located on page five of the policy, provides that: "As soon as possible after an occurrence, we or our authorized agent must be notified. We may ask that the notice be in writing. The notice must provide the following details:
(a) the identity of the insured;
(b) the time, place, and details of the occurrence;
(c) the names and addresses of the injured, and
(d) the names and addresses of any witnesses;
(e) the names and owners of any damaged property; and
(f) the description and location of the damaged property."
The insured, must promptly send us any legal papers he receives if a claim or suit is brought against him." (Emphasis in original.)
Under Connecticut law, the traditional rule was that "absent waiver, an unexcused, unreasonable delay in notification constitutes a failure of condition that entirely discharges an insurance carrier from any further liability on its insurance contract." Aetna Casualty Surety Co. v. Murphy, 206 Conn. 409, 412, 538 A.2d 219 (1988). Our Supreme Court's decision in Murphy, however, changed this rule. Now, "a proper balance between the interests of the insurer and the insured requires a factual inquiry into whether, in the circumstances of a particular case, an insurer has been prejudiced by its insured's delay in giving notice of an event triggering insurance coverage. If it can be shown that the insurer suffered no material prejudice from the delay, the nonoccurrence of the condition of timely notice may be excused because it is not, in Restatement terms, `a material part of the agreed exchange.' Literal enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages." Id., 417-18. "[T]he burden of establishing lack of prejudice must be borne by the insured. It is the insured who is seeking to be excused from the consequences of a contract provision with which he has concededly failed to comply." Id., 419-20. "The purpose of a policy provision requiring the insured to give the company prompt notice of an accident or claim is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances . . . And further, if the insurer is thus given the opportunity for a timely investigation, reasonable compromises and settlements may be made, thereby avoiding prolonged and unnecessary litigation." (Internal quotation marks omitted.) Id., 417.
The insurance policy requires that notice be given "as soon as possible after an occurrence." "Most of the policy provisions which have been involved in the cases concerning compliance [with notice requirements] have specified `immediate notice,' `prompt notice' or the like, and these terms have usually been construed as meaning and requiring that the notice be given within a reasonable time, under the circumstances of the case, after the assured learns of an accident resulting in injuries within the coverage of the policy." (Internal quotation marks omitted.) Gulf Ins. Co. v. Murdock Claim Management, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 04 4022252 (August 4, 2009, Shapiro, J.), quoting Baker v. Metropolitan Casualty Ins. Co., 118 Conn. 147, 149, 171 A. 7 (1934). As the phrase "as soon as possible" is sufficiently similar to "prompt," it is submitted that the court should construe this notice provision as requiring that notice be given within a reasonable time after the insured learned of the accident. "[C]ircumstances may be such as to explain or excuse delay in giving notice and show it to be reasonable . . . When the facts are undisputed and one conclusion only is reasonably possible, the question of compliance with a provision for notice is one of law; otherwise it is a question of fact." (Internal quotation marks omitted.) West Haven v. U.S. Fidelity Guaranty Co., 174 Conn. 392, 397-98, 389 A.2d 741 (1978).
According to the affidavit of Eniola Armoogan, who is a claims analyst for the plaintiff, Nahid Nazarian first telephoned the plaintiff to inform it of the subject incident on October 12, 2006, which is approximately seven weeks following the incident leading to the decedent's death. During this phone call, Nahid Nazarian reported that Gilbert Nazarian was the driver of the automobile and that Elizabeth Green was a passenger. Nahid Nazarian failed to give the date of loss, the area of the incident or the identity of the decedent. Armoogan attests that the plaintiff did not learn of the identity of the decedent or the date of loss until it obtained the decedent's death certificate on December 15, 2006. Furthermore, Armoogan attests that none of the defendants ever provided the contact information for Elizabeth Green or identified any of the other witnesses to the August 21, 2006 incident.
In their memorandum of law, Sanchez and Castillo argue that there are issues of material fact as to when the plaintiff first received information regarding the incident. Sanchez and Castillo offer two affidavits in opposition to this summary judgment. One of these affidavits is from their counsel, Alex Martinez, and the other is from Andrew Gallagher, a Stamford police officer. At the outset, it is appropriate to note that "generally an affidavit by a party's attorney should not be used to oppose a summary judgment motion . . ." 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994). While the court will consider the affidavit from Martinez, it will also consider it with the knowledge that he is also the advocate for the defendants and thus will accord it less weight in accordance with the general rule.
In his affidavit, Gallagher attests that "I was contacted by Tom McGuigan, an investigator from Geico within a couple of days of the accident. He told me that he was a former police officer. I informed Tom McGuigan where it occurred, when it happened and the time it occurred . . . I had spoken directly to Tom McGuigan about six times. I provided status of the case. We had conversations that charges were pending and that an Arrest Warrant [sic] forthcoming. I informed Tom McGuigan on December 15, 2006 that Gilbert Nazarian had been charged." At oral argument, the plaintiff made objections to the attestations in paragraph five of Gallagher's affidavit on the grounds that they were "not a true allegation" and hearsay. "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). As such, at the summary judgment stage, it is not the role of the court to determine the credibility of the attestations in Gallagher's affidavit. Regarding the hearsay objection, it is true that paragraph five does have some out of court statements, including McGuigan's contention that he "was a former police officer." Nevertheless, Gallagher's attestation that he "was contacted by Tom McGuigan, an investigator from Geico, within a couple of days of the accident" is clearly not hearsay because there is no out of court statement being offered for its truth. Gallagher is simply attesting to the fact that he received a phone call on a certain date; the contents of this conversation are not revealed in this sentence. Accordingly, this portion of the affidavit is appropriate for consideration.
The relevance of Gallagher's attestation that he received a phone call from an investigator employed by the plaintiff "within a couple of days of the accident" is that it could suggest that the plaintiff had knowledge of the subject incident before Armoogan claims that the plaintiff was notified by the defendants. It would be illogical for McGuigan to contact the Stamford police about this incident unless the plaintiff knew that it could affect one of its insureds. This contention by the defendants raises a genuine issue of fact regarding when the plaintiff was first notified about the incident that resulted in the decedent's death. While the plaintiff contends that the notice given by Nahid Nazarian was insufficient because the notice failed to provide the details of the occurrence and the names and addresses of witnesses, the defendants still have the opportunity to raise a question of fact as to whether the purported violation of the notice provision prejudiced the plaintiff. As stated by our Supreme Court, the "purpose of a policy provision requiring the insured to give the company prompt notice of an accident or claim is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances." (Internal quotation marks omitted.) Aetna Casualty Surety Co. v. Murphy, supra, 206 Conn. 417. If the plaintiff's investigator was in contact with the Stamford police department within a few days of the incident and was given much of the relevant information about what occurred, there is a question of fact regarding whether the plaintiff suffered any prejudice as a result of the defendants' alleged insufficient notice. Therefore, the plaintiff has failed to demonstrate that it is entitled to summary judgment for the defendants' alleged breach of the notice provision in their automobile insurance policy.
THE COOPERATION CLAUSE CT Page 7153
The plaintiff also argues that it is entitled to summary judgment because there is no genuine issue of material fact that the defendants have breached the terms of the insurance policy's cooperation clause. This cooperation provision is located on page five of the insurance policy and provides: "The insured will cooperate and help us, if we ask:
(a) in the investigation of the claim;
(b) in making settlements;
(c) in the conduct of suits; and
(d) in enforcing any right of contribution or indemnity against any person or organization legally responsible for the bodily injury or property damage; and
(e) at trials and hearings;
(f) in securing and giving evidence; and
(g) in obtaining the attendance of witnesses." (Emphasis in original.)
Furthermore, on page fourteen, the policy explicitly provides that: "The insured or any other person seeking coverage under this policy must submit to examination under oath by any person named by us when and as often as we may require." (Emphasis in original.)
"[A]bsent estoppel, waiver or other excuse, the substantial or material breach of the cooperation provisions of the insurance policy by an insured puts an end to the insurer's obligation." (Internal quotation marks omitted.) Taricani v. Nationwide Mutual Ins. Co., 77 Conn.App. 139, 145, 822 A.2d 341 (2003). Furthermore, "in the absence of a reasonable excuse, when an insured fails to comply with the insurance policy provisions requiring an examination under oath and the production of documents, the breach generally results in the forfeiture of coverage, thereby relieving the insurer of its liability to pay, and provides the insurer an absolute defense to an action on the policy . . . In the absence of estoppel, waiver or other excuse, cooperation by the insured in accordance with the provisions of the policy is a condition the breach of which puts an end to the insurer's obligation . . . The lack of cooperation, however, must be substantial or material." (Citation omitted; internal quotation marks omitted.) Double G.G. Leasing, LLC v. Underwriters at Lloyd's, London, 116 Conn.App. 417, 432, 978 A.2d 83, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).
In its memorandum of law, the plaintiff posits an argument that there is a dispute between the Connecticut Supreme and Appellate Courts regarding whether lack of prejudice can excuse an insured's contractual duty to cooperate. The plaintiff cites Brown v. Employer's Reinsurance Corp., 206 Conn. 668, 539 A.2d 138 (1988), in support of its position that the Connecticut Supreme Court has yet to endorse a non-prejudice exception to a contractual duty to cooperate. In a footnote in Brown, our Supreme Court stated that "[w]e need not reach the issue of whether the [prejudice] analysis contained in our recent decision in Aetna Casualty Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988), would apply here or to all breaches of an insurance contract by an insured . . . The case at hand does not involve the breach of such a notice provision for it is undisputed the [the insured] notified [the insurance company] immediately after [the plaintiff] filed the initial suit. Thus, even assuming the prejudice analysis of [ Murphy] were to apply here, we would still find for [the insurance company] because the prejudice to it . . . is obvious." Id., 675 n. 7. Accordingly, it can be seen that in Brown, the Connecticut Supreme Court did not hold that lack of prejudice was irrelevant in determining whether an insured had breached its contractual obligation to cooperate; the Supreme Court simply declined to reach the issue.
This question, however, was clearly resolved by the Appellate Court in 2003 in a case involving the breach of a cooperation clause in an insurance policy. According to the Appellate Court, "[i]t is difficult to see why the principle announced in Murphy should not be extended to this case. Both involve clauses in insurance contracts that are intended to afford an insurer a fair opportunity to investigate accidents presumptively covered by the insurance policy . . . We conclude, therefore, that the principle underlying our decision in Murphy is equally applicable to the circumstances of this case. It may be that it will be more difficult for an insured to prove lack of prejudice in the context of a breach of cooperation clause as compared with a breach of a notice clause. That difficulty does not persuade us to adopt a rule that would categorically deny the insured the opportunity to make the required showing." Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 149-50. Our Supreme Court has yet to address this issue directly following the Appellate Court's decision in Taricani. There is no dispute in the law as to this issue. Taricani establishes that the law regarding alleged breaches of notice and cooperation provisions is the same. Lack of prejudice can excuse the failure to cooperate or provide timely notice, but the burden is on the insured to demonstrate that the insurance company has not suffered any prejudice.
In her affidavit, Armoogan attests to numerous instances where the defendants refused to cooperate with the plaintiff's investigative efforts. For instance, on October 13, 2006, Armoogan telephoned Gilbert Nazarian and requested that he call her back, which Gilbert Nazarian failed to do. Armoogan also spoke with Nahid Nazarian on October 17, 2006, and informed her that it would be necessary to obtain a written statement from Gilbert Nazarian as well as from Elizabeth Green regarding the details of the incident. Nahid Nazarian indicated that she would provide the plaintiff with the telephone number of Gilbert Nazarian's attorney. Nahid Nazarian never gave this information to the plaintiff, instead, Armoogan found the attorney's contact information on the internet. As of November 22, 2006, Armoogan had received no response to four telephone calls to Gilbert Nazarian's attorney. Accordingly, on that date, Armoogan sent written correspondence to Nahid Nazarian and Gilbert Nazarian indicating that they had a duty to cooperate with the plaintiff. On November 26, 2006, Nahid Nazarian contacted the plaintiff and stated there was no police report for the incident, that the vehicle was impounded and the police had told her that the claim was still under investigation. Armoogan informed Nahid Nazarian that Gilbert Nazarian still had an obligation to tell the plaintiff what had occurred. Nahid Nazarian then told Armoogan that Gilbert Nazarian would not submit a statement without the involvement of his attorney. On January 15, 2007, a letter was sent to Gilbert Nazarian's counsel, which was copied to Nahid Nazarian and Gilbert Nazarian, which indicated that Gilbert Nazarian had an obligation to make a statement, as well as turn over all relevant witness information, witness statements and police reports regarding the incident. Despite this correspondence, the plaintiff did not receive any further communication from the defendants until September 3, 2008, when Nahid Nazarian telephoned the plaintiff to inform it that the defendants had been served with the writ and complaint from the Castillo lawsuit. To date, none of the defendants have provided any additional details regarding the August 21, 2005 incident.
The affidavit of Marcia A. Swanhall, an employee of the law firm representing the plaintiff, also demonstrates that the defendants have frequently evaded their obligations to submit to examinations under oath. On May 8, 2009, there was notice that statements of all three defendants were scheduled to take place on May 27, 2009. In response, on May 27, 2009, the plaintiff's counsel received a letter from all three of the defendants which stated that: "I am unable to come to this meeting due to the fact that Gilbert and I work full time. My husband is unable to attend due to the fact that he is physically and mentally ill. Any documentation and information that you may need is on file in the Stamford Court House. I still do not have an attorney to represent me." On June 3, 2009, examinations under oath where re-scheduled for July 1, 2009. In response, on June 30, 2009, Nahid Nazarian telephoned the plaintiff's counsel and stated that the defendants did not have an attorney and were not planning on attending. Additionally, on July 1, 2009, the plaintiff's counsel received a letter from the defendants dated June 25, 2009, that stated they had yet to obtain an attorney. The plaintiff's counsel re-noticed the examinations for July 23, 2009, and the defendants again failed to appear. Once again, the defendants sent a letter to the plaintiff's counsel dated July 20, 2009, stating: "As of this writing my husband has been hospitalized. I am unable to option [sic] attorney. If you require any information regarding this case, please refer to the court record. I am unable to offer any additional information."
The evidence offered in support of the plaintiff's motion demonstrates a long pattern of the defendants refusing to supply the plaintiff with any information regarding the August 21, 2006 incident. In their memorandum of law and attached evidence, Castillo and Sanchez do not offer any explanation for the defendants' failure to cooperate with the plaintiff or their inability to submit to examinations under oath. Accordingly, there is no genuine issue of material fact that the defendants are in breach of the cooperation clause of the insurance policy. See, e.g. Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 147 (holding that "as a matter of law, the plaintiffs' failure to appear to be examined under oath was a breach of a material condition in their business property insurance policy . . . [which] justified the defendant's decision to decline the plaintiffs' claim for insurance coverage . . .").
Nevertheless, Castillo and Sanchez argue that the plaintiff has not suffered any prejudice resulting from the defendants' lack of cooperation because "at all times the Plaintiff had knowledge or means to fully evaluate the accident. The Plaintiff had access to the Death Certificate which contained all relevant biographical information on the Decedent to conduct an investigation." Castillo and Sanchez also note that this incident was well covered in the news media and that Attorney Martinez's contact information was readily available, as well as the police report from the Stamford police department. Essentially, the crux of Castillo and Sanchez's argument is that the plaintiff could have obtained all of the information from independent sources that the defendants would have revealed in their examinations under oath.
This argument is virtually identical to that raised by the insured party in Taricani. In that case, the trial court determined that the insured party failed to meet his burden to demonstrate that his noncompliance with the cooperation clause caused no prejudice to the insurance company. In affirming the trial court's decision, the Appellate Court: "Although Anthony Taricani attests that the defendant was given prompt notice of the loss and had access to the police and fire department investigation reports, he does not specify or explain, and the court fails to see, how such factors protect the [insurance company's] interest in promptly obtaining statements and proof from the [insured party] and cross-examining them upon such . . . [T]he [insured party has] failed to present any evidence that the reports contain such information as would sufficiently reduce the prejudice to the defendant stemming from staleness and faulty memories. The [insured party] therefore [has] not sufficiently provided a factual basis for their claim of nonprejudice." (Internal quotation marks omitted.) Id., 150-51.
Like the insured party in Taricani, the affidavits offered in opposition to the present summary judgment motion failed to provide any explanation as to how the plaintiff was not prejudiced by the defendants' complete failure to submit to examinations under oath or provide any meaningful assistance in the plaintiff's investigation. While it may be true that some of the relevant information regarding this incident was available in the sources cited by Sanchez and Castillo, the plaintiff still suffered harm because it was unable to depose the defendants about the August 21, 2006 incident while their memories were fresh. Indeed, the defendants were still refusing to submit to examinations under oath or give any oral statements nearly three years after the subject incident. As stated by the Appellate Court: "Because [the insured party's] failure to comply with the cooperation clause is presumed to have been detrimental to the [insurance company's] interests, [the insured's party] cannot rely on [the insurance company's] failure to articulate the manner in which their delay impaired its investigation . . ." Id., 151. Because there was a delay for such an extended time period, the plaintiff will never be able to specifically know how much of the investigation was changed or lost as a result of the refusal to cooperate. Accordingly, the defendants fail to raise a genuine issue of material fact regarding the lack of prejudice suffered by the plaintiff as a result of their failure to cooperate.
ESTOPPEL
Sanchez and Castillo's final argument in opposition to the plaintiff's motion for summary judgment is that the plaintiff should be estopped from raising a breach of contract defense. Specifically, Sanchez and Castillo contend that the plaintiff "took the position that they will wait and see" on the outcome of Gilbert Nazarian's criminal trial and conducted an inadequate investigation. According to Sanchez and Castillo, the plaintiff believed that Gilbert Nazarian would be convicted of more serious criminal charges, and therefore, the plaintiff could take the position that it did not have to provide a defense because Gilbert Nazarian's acts would fall under the intentional acts exclusion clause in the insurance policy. For this reason, the plaintiff made no attempts to contact Sanchez and Castillo's counsel between January 5, 2007 and September 23, 2008.
"Our jurisprudence regarding the doctrine of equitable estoppel is well established . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby [the party] is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . . We [have] recognized that estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Citations omitted; internal quotation marks omitted.) Union Carbide Corp. v. Danbury, 257 Conn. 865, 872-73, 778 A.2d 204 (2001).
An examination of the evidence attached to Sanchez and Castillo' memorandum of law in opposition reveals that they fail to raise an issue of fact as to the applicability of the defendants' estoppel defense. Sanchez and Castillo fail to present any evidence that the defendants changed their position in reliance on the representations of the plaintiff. Indeed, all of the available evidence indicates that the defendants' position has been consistent since the August 21, 2006 incident in that the defendants have refused to cooperate with or assist the plaintiff's investigation. Furthermore, it is disingenuous for Sanchez and Castillo to argue that the plaintiff engaged in "wait and see" tactics as opposed to conducting a thorough investigation. As demonstrated by the uncontradicted affidavit of Eniola Armoogan, the plaintiff's employees made numerous unreturned telephone calls to the various defendants and their counsel in an attempt to conduct an investigation. Furthermore, as established by the uncontradicted affidavit of Marcia Swanhall, the plaintiff's counsel noticed the deposition of the defendants on at least three occasions, and the defendants refused to be examined under oath. Accordingly, the court rejects the defendants' estoppel defense.
CT Page 7159