Opinion
HHDCV165041395S
09-08-2017
Vorcelia Oliphant v. Gail Heath et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT (##126, 140, 143)
ROBERT B. SHAPIRO, JUDGE
This matter is before the court concerning motions for summary judgment filed by defendants Permanent General Assurance Corporation (PGAC) and Gail Heath (#126), Allstate Insurance Company (Allstate) (#143); and the plaintiff, Vorcelia Oliphant's cross-motion for summary judgment (#140). The court heard oral argument concerning the motions on July 24, 2017. After consideration, the court issues this memorandum of decision.
At oral argument, the plaintiff stated on the record that she was withdrawing her claim against Allstate. See complaint, Count Three (claim against Allstate). Accordingly, since the claim is withdrawn, the court need not consider Allstate's motion for summary judgment.
I Background
The plaintiff alleges in her complaint that she brings this action pursuant to the accidental failure of suit statute, General Statutes § 52-592. After this matter was filed in February 2016, the Appellate Court, by decision dated January 24, 2017, in Oliphant v. Heath, 170 Conn.App. 360, 154 A.3d 582, cert. denied, 325 Conn. 921, 163 A.3d 620, A.3d (2017), in an appeal from a judgment rendered in the Superior Court for the judicial district of New Britain, affirmed the trial court (Young, J.)'s decisions denying the plaintiff's motion to open a judgment of nonsuit entered against the plaintiff and denying her motion to reargue or reconsider the denial of the motion to open.
In Count One of her complaint, the plaintiff seeks to recover against PGAC for personal injuries she allegedly suffered in an automobile accident which occurred on December 17, 2011 in Meriden, Connecticut. The plaintiff alleges that she was operating a Saturn sedan, and was fully stopped behind another vehicle, when defendant Heath, who was operating a Lincoln Continental, drove into the rear of the plaintiff's vehicle. In what is entitled the " Second Count, " the plaintiff pleads claims against defendant Heath.
In Count Two, the plaintiff alleges that Heath was insured under an insurance policy issued by PGAC. She alleges that PGAC is required to provide uninsured motorist benefits to the plaintiff.
In support of their motion, PGAC and Heath contend that (1) since the plaintiff is not an insured under the policy issued by PGAC, PGAC is not required to provide the plaintiff with uninsured motorist benefits as alleged in the complaint and owes no duty to the plaintiff; (2) the plaintiff has failed to meet the requirements to bring a new suit under § 52-592 as: (a) her prior suit was not dismissed as a matter of form, and (b) she did not commence this action within one year, as required by the statute. They assert that the plaintiff's claims are barred by the two year statute of limitations set forth in General Statutes § 52-584.
Section 52-584 provides, in relevant part, " No action to recover damages for injury to the person, or to real or personal property, caused by negligence or by reckless or wanton misconduct . .., shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
In opposition, and in support of her cross-motion for summary judgment as to liability, the plaintiff asserts that her action is timely. See #140.
The plaintiff also asserts that PGAC and Heath's motion for summary judgment is designed to deny her constitutional rights to trial. This assertion is merely mentioned. " Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived . . ." (Internal quotation marks omitted.) State v. Foreman, 288 Conn. 684, 710 n.17, 954 A.2d 135 (2008).
II Standard of Review
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the 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, 319-20, 77 A.3d 726 (2013).
" A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 312-13.
III Discussion
General Statutes § 38a-336(a)(1)(A) provides in relevant part: " Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . . for the protection of persons insured thereunder who are legally entitled to recover damages . . ." (Emphasis added.) Per § 38a-336(a)(1)(A), an insurer is required to provide uninsured/underinsured motorist coverage (UM/UIM) for those insured under the policy. In Kitmirides v. Middlesex Mutual Assurance Co., 65 Conn.App. 729, 734, 783 A.2d 1079 (2001), aff'd, 260 Conn. 336, 796 A.2d 260 Conn. 336, 796 A.2d 1185 (2002), the court held that " the policy provisions clearly and unambiguously required that, in order to be a covered person under the underinsured motorist coverage provided by the policy, a person must be a named insured in the declarations." Conn. Med. Ins. Co. v. Kulikowski, 286 Conn. 1, 8, 942 A.2d 334 (2008).
In the present case, the insurance policy provides that the insurer, PGAC, will pay UM/UIM damages that an insured is entitled to recover. The plaintiff is not an insured under the policy. PGAC owed no contractual duty to the plaintiff. See Carford v. Empire Fire & Marine Ins. Co., 94 Conn.App. 41, 46-47, 891 A.2d 55 (2006). Accordingly, she cannot recover UM/UIM benefits from PGAC.
As to General Statutes § 52-592, " disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592(a) . . . rather, whether the dismissal of a prior proceeding permitted a plaintiff recourse to the statute depends upon the nature and the extent of the conduct that led to the disciplinary dismissal." (Citation omitted; internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 251, 969 A.2d 210 (2009). " [A] plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence, or excusable neglect . . . Indeed, even in the disciplinary context, only egregious conduct will bar recourse to § 52-592." (Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 50-51, 12 A.3d 885 (2011).
Section 52-592(a) provides, in relevant part, " [i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because . . . the action has been otherwise avoided . . . for any matter of form . . . or if a judgment of nonsuit has been rendered . .., the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
" A trial court, for example, might find an attorney's misconduct to be egregious if the attorney represented that his inappearance was caused by difficulties with his car without disclosing that he had ready access to alternative transportation. A trial court might make a similar finding if, in one case, the attorney repeatedly, and without credible excuse, delayed scheduled court proceedings. Nonappearances that interfere with proper judicial management of cases, and cause serious inconvenience to the court and to opposing parties, are categorically different from a mere failure to respond to a notice of dormancy . . ." Ruddock v. Burrowes, 243 Conn. 569, 576 n.12, 706 A.2d 967 (1998).
" The [Supreme Court in Ruddock ] provided additional guidance by explaining that failing to appear at scheduled hearings might constitute egregious conduct if a party exhibits a pattern of behavior that interferes with proper judicial management of cases . . . [T]he Supreme Court in Ruddock stated that one incident of unjustifiable misconduct, such as missing a conference and failing to offer the court a credible excuse for such behavior, could suffice to preclude application of the statute." (Citations omitted; internal quotation marks omitted.) Vestuti v. Miller, 124 Conn.App. 138, 145, 3 A.3d 1046 (2010).
In Vestuti v. Miller, supra, 124 Conn.App. at 145-46, the court held that summary judgment was inappropriate where a genuine issue of material fact existed as to whether judgment was " entered due to the mere inadvertence of the plaintiff's attorney--especially given the surrounding circumstances in which the plaintiff's attorney knew for months in advance the date of the mandatory pretrial conference [that was missed] and yet still failed to notify both the plaintiff of the conference and the presiding judge that she would not attend." The court stated that " [w]ithout the trial court appropriately weighing the evidence and determining credibility, there is an insufficient evidentiary basis for this case to be accurately placed on the § 52-592 continuum." Id., 146-47.
Here, in the prior action in the New Britain court, on January 30, 2015, a judgment of nonsuit entered against the plaintiff for failing to appear for a pretrial conference. The plaintiff asserted that she missed the pretrial conference, despite having received notice of the same, because she believed an attorney in another matter was going to reschedule the pretrial conference. The plaintiff also claimed she did not receive a reminder for the conference and, therefore, claims she may avail herself to the savings provisions of § 52-592 .
The New Britain court (Young, J.) was unpersuaded and explicitly found that the plaintiff " failed to establish that she was prevented by mistake, accident or reasonable cause from attending the pretrial conference for which she admits she received notice." See court's ruling, dated June 22, 2015, concerning plaintiff's June 1, 2015 motion to open judgment. In addition, the court found that " [h]er assertion that an attorney in another matter was supposed to have the pretrial in this action rescheduled is without support and not credible." See id.
This case is distinguishable from Vestuti v. Miller, supra, 124 Conn.App. 145-47. There, a question of fact existed as to whether the plaintiff even knew of the court date due to the inadvertence of her attorney. In the present case, however, the plaintiff had notice of the pretrial conference and knew when she was mandated to be in court. The plaintiff's reasons for missing the conference were already found, by the New Britain court, to not constitute mistake, inadvertence, or excusable neglect.
Accordingly, § 52-592 is inapplicable to this action and the plaintiff may not avail herself thereof. Under these circumstances, the court need not consider whether her action was commenced within § 52-592's one year limitations period.
The plaintiff commenced this suit by service of process on February 17, 2016. See return of service (#100.30). Accordingly, this action is time-barred by General Statutes § 52-584, since the alleged accident occurred on December 17, 2011, more than two years before this action was commenced.
CONCLUSION
Based on the foregoing reasons, the defendants Gail Heath and Permanent General Assurance Corporation's motion for summary judgment is granted and the plaintiff's cross-motion for summary judgment is denied. Judgment may enter for the defendants, Gail Heath and Permanent General Assurance Corporation. As stated above, the plaintiff's claim against defendant Allstate Insurance Company was withdrawn on the record at oral argument.