Opinion
No. CV-00-0444880 S
July 16, 2004
MEMORANDUM OF DECISION
On November 6, 2000, the plaintiff, Margaret Thomas, filed a two-count complaint against the defendants, Helen Singer, Bolivar Chuva and Wilmer Chuva, seeking damages for injuries and losses she allegedly sustained in a motor vehicle accident. On November 13, 2003, Thomas filed a motion to cite in Safeco Insurance Company of Illinois as a defendant. The court, Jones, J., granted Thomas' motion on December 1, 2003, and, on December 23, 2003, Safeco was served with a copy of the three-count amended complaint which includes a count seeking uninsured motorist coverage from Safeco based on the uninsured status of the vehicle owned by the defendants Wilmer Chuva and Bolivar Chuva (Chuva vehicle). Safeco filed its answer to the amended complaint and alleged several special defenses, including that Thomas' claim for uninsured motorist coverage is barred by a three year contractual limitation.
On April 18, 2002, Bolivar Chuva and Wilmer Chuva were defaulted for failure to appear.
On March 29, 2004, Safeco filed a motion for summary judgment as to count three of the amended complaint supported by a memorandum of law and a certified copy of the insurance policy (Safeco policy) it issued to Thomas. On May 21, 2004, Thomas filed a memorandum of law in opposition to Safeco's motion for summary judgment and the following exhibits: (1) an unsworn copy of a police report; (2) the signed and sworn affidavit of Ivan Katz, one of the attorneys representing Thomas; (3) a copy of a letter from Diane Warner, Safeco senior claims examiner, dated July 23, 2003; (4) a copy of a September 30, 1999 letter Katz avers he sent to Anna Johnson at the Safeco claims office.
In its motion for summary judgment, Safeco notes that it has submitted a certified copy of the Safeco policy and the "[a]ffidavit of Bob Wood, with exhibit" in support of its motion. Wood's affidavit and the accompanying exhibit were not submitted with Safeco's motion.
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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "[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). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791. A.2d 489 (2002).
Safeco moves for summary judgment on the ground that there are no material facts in dispute and that it is entitled to judgment as a matter of law because, as provided in the Safeco policy, Thomas failed to bring this action against Safeco for uninsured motorist coverage within three years of the date of the accident. In opposition, Thomas argues that because the language in the Safeco policy is ambiguous a genuine issue of material fact exists regarding whether she timely filed suit against Safeco.
General Statutes § 52-576(a) provides: "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, except as provided in subsection (b) of this section." General Statutes § 38a-336(g)(1) provides, however, "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." (Internal quotation marks omitted.) Tracy v. Allstate Ins. Co., 76 Conn. App. 329, 335, 819 A.2d 859 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004). If the limitation period in the insurance policy is unenforceable, "in the absence of some other controlling statutory or contractual provision, § 52-576(a) is the applicable statute of limitation for bringing claims under insurance policies." Gohel v. Allstate Ins. Co., 61 Conn. App. 806, 821, 768 A.2d 950 (2001).
General Statues § 38a-336(g)(1) provides in relevant part: "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 . . ."
A review of the Safeco policy reveals that Safeco has "[contracted] out of the six-year statutory limitations period . . ." (Internal quotation marks omitted.) Tracy v. Allstate Ins. Co., supra, 76 Conn. App. 335. The applicable policy provision provides: "All claims or suits under Part C [uninsured/underinsured motorist coverage] of this policy must be brought within three years of the date of the accident." (Safeco's Memorandum in Support of its Motion For Summary Judgment, Safeco Policy: Part F, Legal Action Against Us [C].) Thomas argues, however, that the policy language is ambiguous, and, therefore, § 52-576(a) is the applicable statute of limitation.
"[C]onstruction of a contract of insurance presents a question of law for the court . . . [T]he terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . . Our jurisprudence makes clear, however, that [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied . . . Indeed, courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Citation omitted; emphasis added; internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004).
Thomas' argument that the language in the Safeco policy is ambiguous is without merit. Thomas first contends that the language in the policy is ambiguous because the policy does not define "claim" or "suit." In determining the meaning of "claim or suit" the court must give these words their "natural and ordinary meaning . . . courts cannot indulge in a forced construction . . ." Id.; see also Rivera v. Allstate Ins. Co., 44 Conn. App. 47, 51-52, 686 A.2d 530 (1996) (relying on the plain meaning of "claim" and "action" to interpret the phase "claim and action pending," as used in § 3 of Public Acts 1993, No. 93-77). "Claim" is defined as "[a] demand for something as one's rightful due"; "suit" is defined as "[a] court proceeding to recover a right or claim." American Heritage Dictionary (2d College Ed. 1976).
Thomas also argues that the language in the policy is ambiguous because there is "no provision addressing when such a claim for uninsured motorist benefits accrues . . ." (Thomas' Memorandum in Opposition to the Motion For Summary Judgment, p. 7.) Thomas contends, therefore, that the six-year statutory limitation set forth in § 52-576(a) is the applicable limitation and that an uninsured motorist claim accrues "when the insured knew or should have known that the tortfeasor was uninsured in the absence of a denial of benefits or insolvency of the insurer." (Thomas' Memorandum, p. 7.) Thomas' relies on Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 767 A.2d 1202 (2001), to support her argument.
In Polizos, the court addressed the limited issue of when does "the statute of limitations under General Statutes § 52-576(a) begin to run on a claim for uninsured motorist benefits." Polizos v. Nationwide Ins. Co., supra, 255 Conn. 602. The interpretation of policy language pertaining to a contractual time limitation for bringing an uninsured motorist claim or suit, which is the issue before this court, was not an issue before the court in Polizos. The court did note, however, that an insurer may establish a shorter limitation period for bringing claims, thus contracting out of the six-year statutory limitation in § 52-576. Id., 615-16. "[I]t is the insurer's prerogative . . . to guard against the assertion of stale claims that could potentially arise as a consequence of [the Supreme Court's] reading of § 52-576." (Internal quotation marks omitted.) Id., 616.
Accordingly, based on the plain meaning of "claim" and "suit," Thomas was required to make a demand for uninsured motorist coverage or bring a proceeding in court to recover such benefits within three years of the date of the accident. Applying the undisputed facts to the policy language, Thomas was required to bring a claim or suit for uninsured motorist coverage relating to the accident that occurred on October 15, 1998 no later than October 15, 2001.
With regard to the timeliness of a claim, Thomas asserts that a genuine issue of material fact exists as to whether she timely made a claim for uninsured motorist coverage based on the uninsured status of the Chuva vehicle. More specifically, Thomas argues that "a genuine issue of material fact exists as to whether [the September 30, 1999 letter sent to the Safeco claims office] properly constitutes a `claim' under Part F of the policy, thereby timely complying with the three-year policy limitation period." (Thomas' Memorandum, p. 9 n. 5.)
Based on a review of the September 30, 1999 letter, which Thomas has submitted in opposition to the motion for summary judgment as exhibit D, it is undisputed that the letter is not a "claim" for uninsured motorist coverage based on the uninsured status of the Chuva vehicle. In fact, the letter upon which Thomas relies does not mention the Chuva defendants, rather the letter pertains only to the other named defendant in this case, Helen Singer. In the heading of the letter, the defendant Singer is listed as "[y]our insured." Safeco is informed that Thomas "intend[s] to look to your insured for compensation for the injuries sustained in this collision." Additionally, the letter provides: "Please be kind enough to deem this to be a formal demand for disclosure of your policy limits . . . [T]he possibility very much exists that an underinsured motorist claim may need to be pursued . . ." (Emphasis added.) Based on this language, it is quite clear that this letter does not constitute a demand for uninsured motorist coverage based on the uninsured status of the Chuva vehicle. It is therefore undisputed that Thomas did not make a timely claim for uninsured motorist coverage.
Thomas' action against Safeco was not timely commenced in accordance with the time limitation set forth in the Safeco policy. It is undisputed that the accident occurred on October 15, 1998, and that Safeco was served with a copy of the writ, summons and amended complaint on December 23, 2003, more than three years after the date of the accident. Based on these undisputed facts, Thomas' suit against Safeco is untimely as a matter of law.
Accordingly, Safeco's motion for summary judgment should be granted because there are no material facts in dispute and Safeco is entitled to judgment as a matter of law because Thomas did not bring a claim or suit for uninsured motorist coverage based on the uninsured status of the Chuva vehicle within thee years of the date of the accident.
Howard Zoarski Judge Trial Referee