Opinion
No. CV 03-0181625 S
March 16, 2006
MEMORANDUM OF DECISION
This matter is before the court on a motion for summary judgment brought by the defendant, Nationwide Mutual Insurance Company.
On November 13, 2002, the plaintiffs, Sounthone Thammavongsa and Phetming Thammavongsa filed a three-count complaint against the defendant, Nationwide Mutual Insurance Company, alleging breach of contract and seeking money damages for its failure to provide compensation for medical benefits owed under their automobile liability insurance policy. Count one alleges coverage for Sounthone Thammavongsa, and count two alleges coverage for Phetming Thammavongsa. This action arises out of injuries and losses allegedly sustained by the plaintiffs on December 23, 2002, during a motor vehicle accident on New Haven Road in Naugatuck. At the time of the accident, Southone was the owner and operator of the motor vehicle in which Phetming and Salena were passengers. The plaintiffs allege that when the accident occurred, they were the owners of an automobile liability insurance policy provided by the defendant. Furthermore, the plaintiffs allege that the subject policy included no-fault medical benefits in accordance with General Statutes § 38a-336, the uninsured and underinsured motorist coverage statute.
Count three alleges coverage for Salena Thammavongsa, a minor. The plaintiff, Phetming Thammavongsa, brings this count as the next of kin of her minor daughter, Salena Thammavongsa. The plaintiffs and the defendant acknowledge that this claim has been paid and it is therefore not addressed in this decision.
The no-fault statutory scheme, including General Statutes § 38a-369, was repealed by No. 93-297, § 28 of the 1993 Public Acts.
On May 24, 2005, the defendant filed an answer with special defenses and subsequently filed a request for plaintiffs' admissions on June 3, 2005. On July 5, 2005, the plaintiffs filed an answer to the defendant's request for admissions. The defendant filed a motion for summary judgment on October 31, 2005. On December 1, 2005, the plaintiffs filed a memoranda in opposition to summary judgment, and the defendant subsequently filed a reply on December 5, 2005. CT Page 5180
I.
"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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "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." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show 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." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).II.
The defendant moves for summary judgment on the grounds that no genuine issue of material fact exists as to whether its failure to provide compensation to the plaintiffs under the subject policy constituted a breach of contract because the plaintiffs' failure to comply with the cooperation clause in the contract bars compensation. The defendant also argues that the subject policy does not contain no-fault benefits. It argues that the plaintiffs violated the cooperation clause of their insurance policy by failing to attend appointments that the defendant scheduled for independent medical examinations on May 7, 2003, and on the rescheduled date of May 20, 2003. The defendant notified the plaintiffs of the scheduled medical examination for May 7, 2003, by letter dated May 1, 2003. When the plaintiffs failed to appear for the first scheduled examination, the defendant rescheduled the appointment for May 20, 2003, and notified the plaintiffs in a subsequent letter dated May 5, 2003. The defendant contends that the plaintiffs also failed to appear for the May 20, 2003, medical examination, and thus breached the cooperation clause of the insurance policy.
In support of its motion, the defendant submits a copy of a signed and sworn affidavit attesting to the truth and accuracy of an attached copy of the plaintiffs' policy of insurance, a copy of the plaintiffs' insurance policy, a copy of the defendant's answer and special defenses, a copy of plaintiff Southone Thammavongsa's answers to the defendant's request for admissions, and a copy of plaintiff Phetming Thammavongsa's answers to the defendant's request for admissions.
The plaintiffs oppose summary judgment on the grounds that genuine issues of material fact exist as to whether the subject policy contained no-fault benefits, and whether the defendant was prejudiced by the plaintiffs' failure to attend the independent medical examinations scheduled by the defendant. The plaintiffs argue that no-fault benefits exist under the "Family Compensation" provision of the subject policy, and that they paid premiums on coverage for this provision. The plaintiffs have not provided any supporting factual evidence in the form of affidavits or otherwise. The plaintiffs further note that the defendant made payment for medical coverage for their minor daughter, Salena, under the "Family Compensation" provision. The plaintiffs additionally assert that a genuine question of material fact exists as to whether their failure to attend the independent medical examinations in accordance with the cooperation clause caused the defendant prejudice. They rely on Aetna Casualty Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988), for the proposition that an insured's failure to comply with technical requirements of an insurance contract will not result in forfeiture unless the insurer was prejudiced as a result of the noncompliance.
III.
"In the absence of estoppel, waiver or other excuse, cooperation by the insured in accordance with the provisions of the policy is a condition the breach of which puts an end to the insurer's obligation . . . The lack of cooperation, however, must be substantial or material." (Citations omitted.) O'Leary v. Lumbermen's Mutual Casualty Co., 178 Conn. 32, 38, 420 A.2d 888 (1979). "[O]nce the defendant [raises] the issue of violation of the cooperation clause, it [is the plaintiffs'] burden to prove their compliance with the cooperation clause." (Internal quotation marks omitted.) Taricani v. Nationwide Mutual Ins. Co., 77 Conn.App. 139, 145, 822 A.2d 341 (2003). The failure of the plaintiffs to even provide an affidavit in opposition to the motion renders the plaintiffs' position tenuous.
Under the section entitled "Insured Persons' Duties," the cooperation clause of the subject insurance policy provides in relevant part: "The insured must . . . be examined by doctors chosen by [the defendant] as often as [the defendant] require with good reason. At [the defendant's] request, the injured person must promptly authorize [the defendant] to: (1) speak with any doctor who has treated him; (2) read all medical history and reports of the injury; (3) obtain copies of wage and medical reports and records; and (4) obtain copies of all medical bills as they are incurred." The plaintiffs admit in their answers to the defendant's request for admissions that they did not appear for the independent medical examinations scheduled by the defendant on May 7, 2003 and May 20, 2003. They however assert that summary judgment should not be granted because genuine issues of material fact exist as to whether the defendants were prejudiced as a result, and their noncompliance was excused because the defendant did not file notice of the medical examinations with the court. However, the plaintiffs have not submitted any supporting factual evidence or affidavits to support their claim.
In Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 147, the Appellate Court agreed with the legal principle asserted by the plaintiffs that "a showing of lack of prejudice is a defense to denial of [the plaintiffs'] insurance claim because of their noncooperation." The Court, however, affirmed the trial court's grant of summary judgment to the defendant for the reason that "[t]he plaintiffs did not present a valid excuse for their failure to comply with the cooperation clause in their insurance policy . . . [E]ven in the absence of such an excuse, [the plaintiffs] would have had a viable claim for coverage . . . if they had been able to establish that their delay in presenting themselves for examination . . . did not result in any prejudice to the defendant. They failed . . . to file an affidavit with sufficient factual allegations to show that their delay in fact did not cause any prejudice." Id., 152.
Because the plaintiffs in the present case have failed to submit any evidence in the form of affidavits or otherwise containing responsive factual allegations to rebut the defendant's allegations in its motion for summary judgment, then no genuine issue of material fact exists as to whether the defendants were prejudiced by the plaintiffs' failure to comply with the cooperation clause. As such, the defendant is entitled to judgment as a matter of law. Accordingly, the court need not address the defendant's second argument regarding the lack of no-fault benefits.
IV.
For the above reasons, the defendant's motion for summary judgment is granted.