Opinion
No. CV 065005632
December 19, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This is an action brought by an insured against his insurer to recover underinsured motorist benefits. On August 3, 2006, plaintiff David Santana commenced this action against the defendant, Progressive Insurance Company. In the one-count complaint for breach of contract, the plaintiff alleges the facts that follow. On March 31, 2002, a vehicle owned by Katherine Sortito struck the plaintiff's vehicle while he was driving through an intersection. The plaintiff sustained several injuries as a result of the collision. At the time of the accident, the Sortito vehicle was insured for $50,000, and the plaintiff had underinsured motorist coverage for $100,000 under his automobile insurance policy with the defendant. In a letter dated March 22, 2005, the plaintiff informed the defendant that he intended to pursue an underinsured motorist claim and demanded arbitration of his claim. As of January 23, 2006, the plaintiff exhausted Sortito's policy and received $50,000 thereunder, and is therefore entitled to recover damages from the defendant pursuant to their contract of insurance.
On November 8, 2006, the defendant filed an answer in which it alleges six special defenses, including that the plaintiff's claim is time barred in that he did not commence suit within 180 days of the date he exhausted Sortito's policy.
On November 6, 2006, the defendant filed a motion for summary judgment, along with a memorandum of law and documentary evidence. The defendant contends that no genuine issue of material fact exists regarding whether the plaintiff's action is time barred by a 180-day limitation period in the policy and that it is therefore entitled to judgment as a matter of law. On November 15, 2006, the plaintiff filed an objection to the defendant's motion for summary judgment, along with a memorandum of law, an affidavit and other documentary evidence.
Although uncertified copies of documentary evidence, such as the documents submitted by the parties, are generally inadmissable; see New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005); with one exception, neither party has raised that objection. Therefore, the court, in its discretion, may consider the evidence in deciding the motion. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006). The plaintiff did object that the defendant did not submit a properly authenticated copy of the insurance policy. In response to the plaintiff's evidentiary challenge, the defendant's June 26 memorandum contains a certified copy of the insurance policy issued to the plaintiff and a supplemental affidavit by Mike Fischer, an employee of the defendant, who attests that the policy in question is the policy that was issued to the plaintiff.
The parties have also filed numerous additional memoranda, affidavits and documentary evidence. Generally, in these memoranda, the parties present their interpretations of case law, not additional grounds in support of or in opposition to summary judgment. The defendant has, however, attached a police report to its May 29 memorandum. The report indicates that the accident occurred on March 31, 2001, and not on March 31, 2002, the date alleged by the plaintiff in the complaint. The defendant relies on this new information to assert an additional ground in support of summary judgment, that the plaintiff's action is time barred because he did not notify the defendant of the accident within three years of the date thereof, as required by the terms of the policy. The defendant also amended its answer on May 29, 2007, to add a special defense to the same effect. The matter was heard at the short calendar on June 11, 2007, during which the plaintiff conceded that the true date of the accident is that cited in the police report.
Standard for Summary Judgment
"[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[s] 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.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006). "Summary judgment may be granted where the claim is barred by the statute of limitations . . . as long as there are no material facts concerning the statute of limitations in dispute." (Citation omitted.) Haggerty v. Williams, 84 Conn.App. 675, 678-79, 855 A.2d 264 (2004).
The defendant argues that there is no genuine issue regarding the fact that the plaintiff did not comply with two policy provisions in that he commenced this action more than 180 days after he exhausted Sortito's policy and he did not notify the defendant of his potential underinsured motorist claim within three years of the date of the accident. In response, the plaintiff maintains that he timely commenced his action because the policy's 180-day limitation period for commencement of an action is invalid, which results in the application of the six-year limitation period contained in General Statutes § 52-576(a) that applies to claims for breach of contract. The plaintiff further argues that a genuine issue of material fact exists as to whether he was advised that the 180-day limitation period applies because the defendant did not reply to his letter expressing his intent to pursue an underinsured motorist claim and demanding arbitration.
General Statutes § 52-576(a) provides in relevant part: "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ."
In general, an insured's claim that its insurer breached its contractual agreement to provide the insured with coverage for damages caused by an underinsured motorist are governed by the six-year limitations period contained in § 52-576(a). See Coelho v. ITT Hartford, 251 Conn. 106, 109, 752 A.2d 1063 (1999).
In 1993, the legislature enacted 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."
By enacting General Statutes § 38a-336, the legislature provided insurers with "a vehicle for contracting out of the six year statutory limitations period by authorizing an insurer to demand written notice of an impending claim within a period that the insurer itself establishes." Coelho v. ITT Hartford, supra, 251 Conn. 117.
"The legislative history and the text of [§ 38a-336] make it clear that no insurance company is permitted to place in its policy a limitation period of less than three years from the date of the accident for uninsured and underinsured motorist claims . . . For underinsured motorist claims, the statute allows that limitation period of three or more years to be tolled provided that the tolling provisions are satisfied . . . [T]he insurance company still needs to be notified within three years in writing that there's the possibility that a claim will be brought for underinsured motorist coverage and then, after that notice, there needs to be action brought within 180 days of the exhaustion of the limits of liability . . . The legislative history further illustrates that a limitation period of less than three years is considered invalid, and therefore, we would resort to the six year statute of limitations for regular contract actions in those cases." (Citations omitted; internal quotation marks omitted.) Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 335-36, 819 A.2d 859 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004).
Thus, the court must determine whether the parties in the present case contracted out of the six-year limitation period. The policy that the defendant issued to the plaintiff states: "Any legal action against us for uninsured motorist coverage must be filed within three (3) years of the date of accident . . . An insured person must notify us within three (3) years of the date of loss of any claim that the insured person may have for underinsured motorist benefits. Any legal action against us for underinsured motorist coverage must be commenced within one hundred eighty (180) days from the date that the limits of liability under all applicable bodily injury policies have been exhausted by payment of settlement or final judgment after any appeals." (Policy, page 14.) As the plaintiff notes, this policy language does not unambiguously meet the requirements of § 38a-336. Specifically, the provision potentially places a limitation of less than three years on underinsured motorist actions by requiring that they must be commenced within 180 days of the date of exhaustion, which could occur less than three years from the date of the accident.
The policy provision is similar to the one that precluded the insurer from relying on § 38a-336(g) in Vitka v. Progressive Northwestern Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 05 4011576 (February 15, 2006, Devlin, J.). As the court explained in that case: "Comparison of the above policy provisions with § 38a-336(g)(1) demonstrates that they establish different limitation schemes. Under the statute, the minimum three-year period for underinsured motorist claims can be tolled and extended provided (1) the insured provides written notice within the three-year period of a claim for underinsured motorist benefits and, (2) the insured commences suit within 180 days of the exhaustion of the limits of applicable insurance policies by settlement or final judgment. The policy, on the other hand, explicitly requires that suits for underinsured motorist coverage must be commenced within 180 days from the date of exhaustion of the limits of all applicable insurance policies by settlement or final judgment. As used in the statute, the 180 [day] period acts as a limit on the insured's ability to toll the limitations period beyond three years; whereas in the policy, the 180 days acts independently as a limitations period anchored to the date of exhaustion of the tortfeasor's policies.
"Applying the policy language to the present case would have required the case to have been brought within 180 days of the date of settlement on June 11, 2001, or December 16, 2001. Since three years from the date of accident is May 4, 2002, the policy sets a limitations period of less than three years and is therefore invalid. Accordingly, the present case is governed by the six-year statute of limitations prescribed by § 52-576(a)."
Although Vitka is distinguishable to the extent that the application of the policy provision in this case would not have required the plaintiff to file her case less than three years after the date of the accident, the language that the court used in addressing this issue in Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 336, suggests that a policy provision regarding the three-year limitation that is ambiguous on its face is invalid, which would preclude the application of § 38a-336(g)(1) and require "resort to the six year statute of limitations for regular contract actions . . ." (Internal quotation marks omitted.) As noted by the Supreme Court in Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 485, 659 A.2d 1188 (1995), in commenting on the legislation that became § 38a-336(g), Representative Cameron C. Staples, a proponent thereof explained: "`It is my understanding that if a contract provides for a period of time less than the three [year period] . . . under this [proposed] statute . . . [then] . . . the provision that is less than three years, would for all intents and purposes be invalid and we would resort to the six year statute of limitations for regular contract actions in those cases. And so that would be the period of time applicable in that case.' [36 H.R. Proc., Pt. 8, 1993 Sess.], pp. 2753-54." Id. For this reason, this Court finds that the six-year statute of limitations in § 52-576(a) also applies in this case.
Further, in addressing an insurer's right to assert the defense of limitations, courts have stated that "`[t]he presence or absence of prejudice is not, nor should it be, a factor in deciding whether an insurer may effectively assert his defense (limitation of action) under the policy.' Zieba v. Middlesex Mutual Assurance Co., 549 F.Sup. 1318, 1321 (1982)." Cardarelli v. Middlesex Mutual Assurance Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0190417 (February 2, 2004, Tobin, J.) (36 Conn. L. Rptr. 485, 486), and cases cited therein. The same principle should also apply to an insured's right to avoid an invalid limitations period. Moreover, this is consistent with the familiar concept that "any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy." (Internal quotation marks omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 199, 901 A.2d 666 (2006). Accordingly, the questions of whether the plaintiff complied with the three-year notice provision and the 180-day filing period are not relevant.
In Coelho v. ITT Hartford, supra, 251 Conn. 117, the court held that "the statute of limitations under § 52-576(a) does not begin to run on a claim for underinsured benefits until the tortfeasor's liability limits have been exhausted." Here, it is undisputed that the plaintiff exhausted Sortito's policy on January 23, 2006, and that he commenced this action on August 3, 2006. Clearly, the defendant has not sustained its burden of demonstrating that no genuine issue of material fact exists as to whether the plaintiff's action is time barred.
Conclusion
For the foregoing reasons, the defendant's Motion for Summary Judgment is denied.