Opinion
No. CV 02-0189085 S
September 7, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This action was commenced by the plaintiff against her alleged collision insurance carrier to recoup damage to her automobile sustained as a result of an accident. The defendant insurance company seeks summary judgment on the grounds that the insurance policy in question had been cancelled prior to the accident. The plaintiff opposes the motion on the grounds that there is a genuine issue of material fact as to whether cancellation was effective under Connecticut law and further avers that whether or not the policy was cancelled, a genuine issue of material fact exists as to whether the defendant is estopped from asserting such cancellation by virtue of its conduct following the accident in question.
The court does not reach the issue of whether the cancellation was effective under Connecticut law insofar as a genuine issue of material fact exists as to the issue of waiver/estoppel. Such an inquiry is conspicuously fact bound:
A waiver of any condition of an insurance policy may be effected by express agreement or conduct of the insurer from which a waiver may be implied. Andover v. Hartford Accident Indemnity Co., 153 Conn. 439, 445, 217 A.2d 60 (1960)." Waiver is the intentional relinquishment of a known right . . . In the law of insurance, a breach of condition or warranty, out of which avoidance of the policy may be claimed, does not operate automatically to forfeit or avoid the policy, but sets in operation a right of choice. The insurer may elect either to continue or to terminate . . ." Id. "[A]cceptance or retention of premiums on a policy of insurance with knowledge of its breach, will constitute a waiver of the breach implied from the conduct of the insurer through the application of the principles of estoppel . . .
"A waiver of any condition of an insurance policy may be effected by express agreement or conduct of the insurer from which a waiver may be implied." Andover v. Hartford Accident Indemnity Co., supra, 445. An example of a situation where a waiver arises is when an insurer settles a case" voluntarily and with knowledge of facts indicating noncoverage . . ." Employers Mut. Liability Ins. Co. v. Sears Roebuck, 621 F.2d 746 (5th Cir. 1980). "The mere sending of an adjuster by [the insurer] to ascertain the amount of loss in response to a notification does not constitute a waiver of a provision in the policy [which calls for suspension of the policy due to the insureds nonpayment of the premium] in the absence of any statement or promise [by the insurer] relating to the payment of the loss sustained." 6 Couch on Insurance 2d 32:332 (1985). An adjustment of loss made during the time that a policy is suspended does not create an estoppel, unless the making of such adjustment subjects the insured to loss, trouble, inconvenience or expense. Id. An example of "loss or expense. Id. An example of" loss or expense" is where the insured provides the adjuster with the "means to get to and from [the insured's] property." Aetna Ins. Co. v. Daggett Yancy, 177 Ark. 109, 5. S.W.2d 719, 722 (1928). An example of unnecessary "expense" and "trouble" is when the insurer's "affirmative conduct for several months thereafter, induce[d] the [insured] to believe that it would not insist on a forfeiture because of . . . nonpayment" and caused the insured "unnecessary expense" and "unnecessary trouble while acting under the belief that the company intended to settle" the insured's claim. American Life Ass'n v. Vaden, 165 Ark. 86, 261 S.W. 320 (1924).
"To create an estoppel, facts must be present and known to the insurer, and have been relied upon by the insured to his injury." Mishiloff v. American Central Ins. Co., supra, 380. See also 6 Couch on Insurance 2d 32:269 (1985). If the insured has not relied on the representations of the insurer, it is apparent that he has not been misled thereby." "An insured cannot claim an estoppel where he himself knows the true facts, for in such a case, it is clear that he has not been misled by the insurer." Id.
Denitto v. Transamerica Insurance Co. Docket No. CV 90 0266438 S, J.D. of Fairfield, (Dec. 2, 1992) (Lewis, J.).
Here, it is undisputed that the defendant made an adjustment of plaintiff's loss. On February 14, 2002, some 14 days after the alleged effective cancellation date of plaintiff's policy, defendant's Claim Representative David Mosby wrote to the plaintiff offering a settlement for $11,631.70 or the full value of her vehicle and instructing her to sign over the title of the car to the defendant along with a power of attorney and an odometer statement. Affidavit of David Mosby, May 12, 2005 and Exhibit B thereto. It is also undisputed that the plaintiff completed the paperwork and turned over her damaged car to the defendant. Affidavit of Annette C. Scognamiglio, May 9, 2005. The defendant admits receiving the "total loss paperwork." Affidavit of David Mosby, Exhibit C. Plaintiff claims, and defendant does not dispute, that the defendant has never paid her anything for the damaged automobile which she signed over to defendant at defendant's request. Scognamiglio Affidavit, ¶ 14. If that salvage had value, the plaintiff would have suffered a "loss" from the adjustment offered by the defendant, and defendant would be estopped under the rule of the Denitto case. There is therefore, at least one triable issue of fact, namely the nature and extent of the damage to the automobile and the value, if any, of the salvage. There may also be an issue of fact as to defendant's knowledge of the cancellation of the policy when it offered to pay total value of the car. David Mosby, the claims adjuster, states in his affidavit at ¶¶ 6-8, that he was unaware of the cancellation letter when he sent the adjustment letter. But the court is not satisfied that his personal lack of knowledge ends the factual inquiry as whether or not the corporate defendant, in making the adjustment offer, knew of the cancellation, i.e. whether or not some other person within the Liberty Mutual organization knew of the cancellation under circumstances that would impute that knowledge to the claims representative or to the corporate entity. See, Mercer v. Steil, 97 Conn. 583, 588 (1922) (". . . so long as a private corporation acts within the powers conferred upon it by law . . . it is subject to the same rules of agency and estoppel as an individual. The law imputes to this corporation knowledge of the form and contents of the documents which its agents, acting within the general scope of their authority, executed in its name and for its benefit . . .").
Because there are issues of fact relating to waiver and estoppel which could bar the defendant from recovering a judgment in its favor even if the notice of cancellation is found to be legal and effective, the motion for summary judgment must be denied.
Order
For the foregoing reasons, the Defendant's Motion for Summary Judgment dated March 23, 2005 (No. 111) is denied.
BY THE COURT:
Alfred J. Jennings, Jr. Judge