Opinion
LLICV186017730S
01-25-2019
Finley McKinnon PPA Hannah McKinnon, Her Parent and Next Friend v. 21st Century North America Insurance Company
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bentivegna, James M., J.
AMENDED MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (#107)
Bentivegna, J.
I
PROCEDURAL HISTORY
On February 9, 2014, the plaintiff, Finley McKinnon, a minor child, was involved in a motor vehicle accident sustaining serious injuries to her mind, some or all of which are permanent in nature. The tortfeasor’s automobile liability policy of $25,000 was exhausted on June 27, 2017, by payment to the plaintiff. At the time of the accident, Finley was covered by an auto insurance policy which the defendant, 21st Century North America Insurance Company, issued to her parents. The policy’s uninsured/underinsured motorist (UIM) provision provides coverage in the amount of $100,000 per person and $300,000 per accident pursuant to General Statutes § 38a-336. The plaintiff’s mother commenced this suit against the defendant on Finley’s behalf on February 28, 2018, seeking to recover benefits under the underinsured motorist provision.
On April 26, 2018, the defendant filed its answer and special defenses (Entry No. 103). The first special defense claims that this action is time barred for failing to provide the defendant with notice of the claim within three years of the date of the accident, as required by the policy. The second special defense claims that the action is time barred for failing to commence suit within 180 days of exhausting the tortfeasor’s policy. In the third special defense, the defendant claims offsets paid to the plaintiff by workers’ compensation, disability benefits, or any similar law. In the fourth special defense, the defendant asserts that the plaintiff’s recovery is limited to the amount of UIM coverage as set forth in the declarations.
The plaintiff replied to the defendant’s special defenses on May 10, 2018 (Entry No. 105). In response to the defendant’s second special defense, the plaintiff admits that suit was not commenced within 180 days, but denies that the action is time barred for this reason. The plaintiff also pleads a matter in avoidance of the second special defense countering that this action has been brought pursuant to General Statutes § 38-336a and under Coverage "C" of the policy pertaining exclusively to the UIM coverage described in the complaint. The policy, when it was first issued, did not contain a three-year/180-day limitations period for initiating a lawsuit under Coverage "C." Some years later, the defendant unilaterally amended the policy to include this limitation within the "General Provisions" section of the contract, but not within the section designated as Coverage "C." The plaintiff argues that the policy is ambiguous due to the actual placement of the amendment which appears at the very back of the policy. This provision is not a general provision, as the section implies, but is specific to UIM coverage and does not apply to any other type of coverage. As such, the plaintiff argues that policy is materially ambiguous, and, therefore, the six-year statute of limitations applicable to contract actions should be controlling in this matter.
On May 23, 2018, the defendant moved for summary judgment (Entry No. 107) on the ground that, pursuant to the terms of the contract, the claims alleged in the plaintiff’s complaint are untimely. The policy requires the plaintiff to give the defendant written notice of the claim for underinsured motorist benefits, and commence suit for underinsured motorist benefits within 180 days of exhausting the tortfeasor’s policy limits. In this case, the plaintiff failed to comply with both of these requirements, and, as a result, this action against the defendant is barred. In support of its motion, the defendant offers the affidavit of Matthew Hermann and various exhibits, including a certified copy of the policy at issue.
On July 30, 2018, the plaintiff filed her objection and memorandum in opposition (Entry No. 113), countering that the notice furnished by the plaintiff to the defendant was adequate in that it was sent to the address provided by the policy; and, because the insurance policy language is ambiguous as to the time limitations to commence suit, the six-year contract statute of limitations should apply. For these reasons, the plaintiff argues, the case was commenced in a timely fashion. The defendant filed a reply on August 2, 2018 (Entry No. 115). The matter was heard at civil short calendar on August 27, 2018. This court issued its initial memorandum of decision as to the defendant’s motion for summary judgment on September 27, 2018, after which the defendant filed a motion for reconsideration on October 2, 2018. This court now issues an amended memorandum of decision. For the reasons stated below, the motion for summary judgment is granted.
II
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To 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 ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... 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.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). "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.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
The insurance policy provision in question provides in relevant part: "All claims or suits under Part C of this policy must be brought within three years of the date of the accident. However, in the case of a claim involving an underinsured motor vehicle, the insured may toll any applicable limitation period by: 1. Notifying us prior to expiration of the three-year period, in writing, of any claim the insured may have for the Underinsured Motorists Coverage, and 2. Commencing suit not more than 180 days from the date of exhaustion of the limits of liability under all automobile bodily injury bonds or policies applicable at the time of the accident by settlements or final judgments after any appeals." (Emphasis omitted.) Defendant’s Exhibit 2, Insurance Policy Form AU CT46a 0612, Amendment of Policy Provisions-Connecticut, pp. 2-3.
This provision tracks with General Statutes § 38a-336(g)(1), which provides: "No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits, and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals."
After a thorough review of the record, the policy provisions and the applicable law, the court concludes that the plaintiff successfully notified the defendant of her claim for underinsured motorist benefits, but commenced suit 246 days from the date that the tortfeasor’s policy was exhausted; far outside the time limit permitted by the policy. Accordingly, the plaintiff has not tolled the applicable limitations period.
In her memorandum of law, the plaintiff argues that the policy is ambiguous, and therefore the statute of limitations applicable to contract actions set forth in General Statutes § 52-576(a) should apply. In determining whether an insurance policy is ambiguous, the court must apply the well-settled rules of contract construction. In that event, a court must "determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ... When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract ... When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact ... When the language is clear and unambiguous, however, the contract must be given effect according to its terms, and the determination of the parties’ intent is a question of law." (Emphasis omitted; internal quotation marks omitted.) Magsig v. Magsig, 183 Conn.App. 182, 191, 191 A.3d 1053 (2018).
In the present case, after reviewing the contract and interpreting all of the written words according to their natural and ordinary meaning, the court is unable to conclude that the language itself is materially ambiguous, because only one interpretation of the contract provisions is possible. In reviewing the policy alongside the plaintiff’s brief, it appears that the plaintiff mistakes the misleading nature of the policy with the legal concept of ambiguity. The court recognizes that the placement of the relevant UIM provisions within the policy’s four corners may be considered misleading, since the provisions appear in two separate sections: one appearing at the front of the contract and identified as "Part C-Uninsured/Underinsured Motorists Coverage," while the other is sandwiched within an amendment appended to the very back of the policy where any provision relevant to UIM coverage would not be easily located. The policy’s own index does not even alert the insured to the existence of the amendment at the back of the policy, or its relevance to "Part C" and UIM claims. The provisions within both sections are critical to filing a successful claim for UIM benefits. This circumstance, however, does not constitute ambiguity. In order to find ambiguity, the court must determine that the policy’s language and terms are capable of producing more than one interpretation. That is not the case here as once these haphazardly placed provisions are actually located, their meaning is plain and unambiguous.
Given the defendant’s peculiar treatment of these provisions, it is understandable that the average layperson might find the overall effect of the policy to be misleading, and even unfair. The purpose of this insurance policy was to obtain the coverage identified in the declarations in exchange for the premiums paid. The declarations page evinces that the plaintiffs specifically elected UIM coverage under this policy, and paid additional premiums in order to receive the benefit of this coverage. Given that the contract is an expression of the agreement between the parties, including their intentions, it is mystifying as to why the defendant would choose to relegate such a critical piece of information into obscurity.
Nevertheless, in the present case, a fair and reasonable construction of the policy’s written words leads the court to conclude that the language therein is clear and unambiguous, and the contract must be given effect according to its terms. Accordingly, because the plaintiff failed to commence suit within 180 days of exhausting the tortfeasor’s policy, as required by this contract, the court must conclude that the action is untimely.
III
CONCLUSION
For all of the foregoing reasons, the defendant’s motion for summary judgment is granted.
SO ORDERED.