Opinion
No. CV04 0410323 S
May 1, 2006
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #118
The third-party defendant, National Fire Insurance Company of Hartford (National Fire) has moved for summary judgment on Count One of the defendant/third-party plaintiff, Raymond L. Scinto's (Scinto) Amended Third-Party Complaint, dated December 20, 2004. The underlying action between Southport Contracting, Inc. and Scinto concerns a contractual dispute over payment for repair work. Scinto has a policy with National Fire regarding coverage for property damage. National Fire sets forth that Scinto is attempting to bring a third-party claim against his insurer, National Fire, based upon Scinto's underlying contractual dispute with the plaintiff contractor.
Scinto impleaded National Fire pursuant to General Statutes § 52-102a which reads in relevant part, as follows:
(a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him . . .
National Fire argues that it is not a proper party to the instant third-party action, because: (1) Scinto has failed to allege the necessary elements of a third-party claim; and (2) controlling legal authority dictates that an insurer which provides coverage for property damage does not have a duty to defend and/or indemnify its insured against a contractual claim. Furthermore, National Fire argues that Scinto may not in the alternative bring a direct claim against National Fire, as Scinto's policy with National Fire provides that the insured must bring a claim within two years of the incident, and more than two years have passed since the date of the alleged incident, which was January 23, 2003.
I LEGAL STANDARD
The law regarding a motion for summary judgment is well-established. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, CT Page 7882 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). 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 issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
II FACTUAL AND PROCEDURAL BACKGROUND
This matter involves a contract dispute between the plaintiff, Southport Contracting, Inc. (Southport) and the defendant/third-party plaintiff Scinto. On January 23, 2003, the pipes in Scinto's building at 225 Federal Street, Bridgeport, Connecticut, allegedly froze, necessitating plumbing repair work. Scinto, thereafter, allegedly entered into an oral contract with Southport for the plumbing repairs at the premises.
Southport worked at the described premises between the dates of February 8, 2003 and April 2, 2003. Southport thereafter presented Scinto with a bill for its services totaling $30,683.89. Southport alleges that Scinto refused and neglected to tender payment, causing Southport to initiate the instant by way of a three-count complaint sounding in breach of contract, a claim for pure economic loss.
"Some categories of loss, including those often referred to as `pure economic loss,' are more appropriately assigned to contract law and the remedies set forth in Articles 2 and 2A of the Uniform Commercial Code." Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 154 n. 47, 709 A.2d 1075 (1998).
Scinto has now brought a third-party complaint against National Fire Insurance, his business liability insurer. The third-party complaint is divided into two counts. In Count One, Scinto alleges that National Fire "may be liable to Raymond L. Scinto for all or part of Southport Contracting's claim" (against Scinto). In Count Two, defendant Scinto alleges that National Fire "may be liable for all or part of the loss described above."
National Fire previously moved to strike Count Two of the Amended Third-party Complaint and the court (Dewey, J.) granted the motion to strike Count Two on June 24, 2005. Southport Contracting, Inc. v. Scinto, Superior Court, judicial district of Fairfield at Bridgeport No. CV 04-041 03 23 S (Jun. 24, 2005, Dewey, J.) ("There is no allegation that Scinto and National Fire Insurance are joint tortfeasors . . . There is no allegation of a contractual indemnification.") Thus, the present motion for summary judgment is directed toward the remaining count, Count One.
Count One of Scinto's complaint against National Fire states that Southport Contracting, Inc. (Southport) is seeking to obtain payment from Scinto for plumbing repair work to Scinto's property, and that said repair work was necessitated by frozen pipes. At the time of the incident regarding the frozen pipes, Scinto's premises were insured under a policy of insurance issued by National Fire. Scinto alleges that the insurance policy provided coverage for property damage, including damage due to "freezing water." Therefore, Scinto alleges that "the insurer is or may be liable to him for all or part of Southport Contracting's claim."
A review of Scinto's policy with National Fire reveals that the policy provides coverage for property damage which is defined by the policy as "(a) Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or (b) Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the `occurrence' that caused it." "Occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Scinto's policy with National Fire also provides as follows:
Relevant portions of the defendant Scinto's insurance policy with National Fire have been submitted by National Fire in support of its motion for summary judgment. These portions of said policy have been referred to as Exhibit C in the memorandum of law filed by National Fire Insurance.
No one may bring a legal action against us under this insurance unless:
a. There has been full compliance with all of the terms of this insurance; and
b. The action has been brought within 2 years after the date on which the direct physical loss or damages occurred.
III POLICY PROVISIONS RE LIMITATION OF ACTIONS
National Fire argues that Scinto is time barred from bringing a first-party action against his insurer as the policy provides that any action by Scinto must be brought "within two years after the date on which the direct physical loss or damage occurred." The subject event, which was the freezing of Scinto's water pipes, occurred on January 23, 2003, and Scinto has not brought a direct property damage claim against National Fire. Therefore, National Fire claims that Scinto cannot now bring a direct property damage claim against his insurer by way of impleading his insurer into the contractual dispute that Scinto has with Southport. While Scinto opposes the motion for summary judgment on additional grounds, Scinto has not addressed this issue in the legal memorandum of law opposing summary judgment filed in his behalf.
The provision in the insurance policy requiring suit to be brought within two years after the date on which the direct physical loss or damage occurred is a valid contractual obligation, and Scinto's failure to comply therewith is a defense to an action on his policy with National Fire. This time limitation condition requiring suit to be brought within two years does not operate as a statute of limitations. Rather, it is a condition which is part of the contract so that it controls the rights of the parties under the contract and, hence, such rights must be governed by the rules of law applicable to contract. See Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 716 A.2d 883 (1998); see also, Corrigan v. Merrimack Mutual Fire Insurance Co., Superior Court, judicial district of New London No. 114762 (Nov. 24, 1998, Mihalakos, J.) 23 Conn. L. Rptr. 441.
The limitation of actions clause contained in the subject insurance policy can affect Scinto's ability to maintain this action against National Fire. Contracting parties are free to adopt an unambiguous contract provision that a claim must be made within two years of the date of the occurrence which has allegedly caused the claimed loss. See Hotkowski v. Aetna Life Casualty Co., 224 Conn. 145, 617 A.2d 451 (1992). Clearly, Scinto failed to bring a direct action against National Fire within the applicable two-year period provided by the policy. Scinto cannot circumvent this contractual two-year limitation of action time period by allowing him to proceed by use of this third-party complaint against National Fire.
Having concluded that Scinto's failure to bring an action against National Fire within the two-year contractual limitation of action provisions is sufficient to grant the motion for summary judgment, the court does not address National Fire's additional claim that it is not a proper party to the instant third-party action, because Scinto has failed to allege the necessary elements of a third-party claim; and that controlling legal authority dictates that an insurer which provides coverage for property damage does not have a duty to defend and/or indemnify its insured against a contractual claim. The defendant National Fire Insurance Company of Hartford's motion for summary judgment is hereby granted for the reasons set forth herein.