Opinion
CV176070053S
02-27-2018
Ankur Viradia v. Paul Quartuccio
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#105)
Wilson, J.
FACTS
On April 28, 2017, the plaintiff, Ankur Viradia, filed a complaint against the defendant, Paul Quartuccio, sounding in negligence and alleging the following facts. The defendant was responsible for causing a motor vehicle collision to occur on October 27, 2014, when the defendant’s vehicle collided with the rear of the plaintiff’s vehicle. The defendant was negligent and careless in numerous ways and caused serious injuries to the plaintiff The plaintiff requests monetary damages.
On June 14, 2017, the defendant filed an answer and special defenses, either leaving the plaintiff to his proof or denying the substance of the plaintiff’s allegations. The defendant also asserts as a special defense that the plaintiff’s action was commenced after the applicable statute of limitations had run, as provided in General Statutes § 52-584. The plaintiff’s reply, filed on July 13, 2017, contends that the doctrine of equitable estoppel bars the defendant’s special defense because the actions of the defendant’s insurer, acting as his agent, waived or estopped the right to assert the statute of limitations defense.
The court notes that the parties engaged in considerable discussion regarding the specific language used to assert the defendant’s special defense. Notwithstanding the phrasing, it is clear that the defendant properly alleges a statute of limitations special defense pursuant to § 52-584; see Practice Book § 10-50; and the parties agreed, during oral argument, that said statutory time period had run prior to the commencement of this action, as discussed later in this decision.
General Statutes § 52-584 provides in relevant part: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ..."
On July 19, 2017, the defendant filed a motion for summary judgment, arguing that the statute of limitations bars the present action, as a matter of law, because there is no genuine issue of material fact that the present action was commenced after the applicable time period had run. The defendant filed a memorandum of law in support and attached (1) a copy of the summons and complaint, (2) a copy of the return of service, and (3) a copy of the defendant’s answer and special defenses. The plaintiff filed an objection and a memorandum in opposition on September 5, 2017, arguing that the doctrines of estoppel and/or waiver present a genuine issue of material fact concerning the applicability of the statute of limitations. In support, the plaintiff attached an affidavit by the plaintiff’s former attorney, Louis Crisci, which included correspondence he received from the defendant’s insurer, indicating that the defendant’s insurer was aware of the plaintiff’s claim and was evaluating the same. The defendant filed a reply brief to the plaintiff’s objection on October 5, 2017, and the plaintiff filed a sur-reply brief on October 26, 2017. Oral argument on the motion was heard during short calendar on October 30, 2017.
Practice Book § 11-10(c) provides: " Surreply memoranda cannot be filed without the permission of the judicial authority." No such permission was sought by the plaintiff in the present case. The court, however, in its discretion will consider the plaintiff’s surreply. See, e.g., Ugalde v. Saint Mary’s Hospital, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-15-6028359-S (June 8, 2016, Shapiro, J.) (62 Conn.L.Rptr. 467, 471) (exercising discretion and allowing consideration of surreply since permission to file was not previously requested).
DISCUSSION
" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
" Summary judgment may be granted where the claim is barred by the statute of limitations. ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). " Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014).
The defendant argues that there is no genuine issue of material fact that the statute of limitations bars the present action. The plaintiff counters that there exists a genuine issue of material fact concerning whether the statute of limitations defense was waived or estopped by the actions of the defendant’s insurer. The court notes that the plaintiff conceded during oral argument that this action was not filed during the applicable statute of limitations period. The defendant has met his initial burden. Moreover, in the present case, because there is no dispute that the plaintiff filed his complaint after the limitations period set forth in § 52-584 had expired, the burden is now on the plaintiff to establish that there is a genuine issue of material fact as to whether the statute of limitations was waived and/or estopped by the actions of the defendant’s insurer. See Cefaratti v. Aranow, supra, 321 Conn. 645-46.
The plaintiff presents evidence of ongoing communications sent by the defendant’s insurer to Crisci, up to and beyond the running of the statute of limitations. The plaintiff argues that this correspondence induced reliance by the plaintiff that his claim would be resolved without resorting to litigation. The plaintiff concludes that the actions of the defendant’s insurer waived or estopped the defendant’s statute of limitations defense.
" [I]n Connecticut, the doctrine of equitable estoppel ... requires proof of two essential elements: [First] the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and [second] the other party must change its position in reliance on those facts, thereby incurring some injury ... It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Citation omitted; internal quotation marks omitted.) Celentano v. Oaks Condominium Ass’n, 265 Conn. 579, 614-15, 830 A.2d 164 (2003).
" Waiver is the intentional relinquishment or abandonment of a known right or privilege ... As a general rule, both statutory and constitutional rights and privileges may be waived ... Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced ... Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ... Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied." (Citations omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 57-58, 970 A.2d 656 (2009).
Applying the foregoing principles to the present action, the plaintiff must show that the defendant induced the plaintiff to delay initiating litigation, and that the plaintiff lacked reasonably available means of acquiring knowledge of the true state of his claim. The plaintiff’s evidence consists of Crisci’s sworn affidavit, including eight letters he received from the defendant’s insurer before the present action was commenced. The first five letters, dated from September 7, 2015 to September 16, 2016, indicate that the defendant’s insurer was aware of the plaintiff’s claim and requests that Crisci send documents regarding the plaintiff’s treatment. The final three letters, dated October 17, 2016 to January 30, 2017, contain slightly modified language, but similarly request that Crisci send the insurer the plaintiff’s medical reports and documentation, explaining that the insurer would like to begin evaluation of the plaintiff’s injury claim. The affidavit only attests that Crisci contacted the defendant’s insurer on January 30, 2017, and was told that the plaintiff’s injury claim would be closed as more than two years had passed since the injury occurred. The plaintiff argues that these letters, and in particular the three letters sent from October 2016 to January 2017, induced the plaintiff not to commence an action sooner as the plaintiff believed an investigation into his injury claim was ongoing.
Even assuming, arguendo, that the defendant’s insurer could act as the defendant’s agent, the plaintiff’s evidence fails to support any elements of estoppel or waiver. The plaintiff’s evidence does not show that the actions of the defendant’s insurer induced reliance on the part of the plaintiff, that the plaintiff exercised due diligence to ascertain the truth under the circumstances, or that the defendant relied on the same and changed his position. See Celentano v. Oaks Condominium Ass’n, supra, 265 Conn. 614-15; Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. 57-58.
Although the court notes that the parties argue whether the defendant’s insurer acted as an agent of the defendant and could bind the defendant, when communicating with Crisci prior to the commencement of this action, the court will not make findings regarding general principles of agency when it is not required to do so. As later discussed in this decision, the letters sent by the defendant’s insurer to Crisci are insufficient to create a reliance by the plaintiff for purposes of equitable estoppel. The two federal cases that the plaintiff cites to in order to establish agency. between the defendant and the defendant’s insurer, Bergeron v. Mansour, 152 F.2d 27, 31 (1st Cir. 1945) (finding conduct and representations made by defendant’s insurer could waive defendant’s right to invoke statute of limitations through equitable estoppel), and Delson v. Minogue, 190 F.Supp. 935, 936-38 (E.D.N.Y. 1961) (same), are not binding on this court and are factually distinguishable from the present action in both the degree and the content of communication between the defendant’s insurer and the plaintiff. Furthermore, courts applying Connecticut law have declined to apply a liberal reading of those cases to find a defendant’s insurer can waive a defendant’s right to a statute of limitations defense. See Bealle v. Nyden’s, Inc., 245 F.Supp. 86, 95 (D.Conn. 1965) (applying " more stringent standard of reasonable reliance" in evaluating insurer’s statements than in Delson and Bergeron ); see also Krupa v. Kelley, 5 Conn.Cir. 127, 132, 245 A.2d 886 (App.Sess. 1968) (affirming trial court decision whereby insurance company was not party in action but communicated with plaintiff prior to commencement of action and found " mere negotiations toward an amicable settlement afford no basis for an estoppel, nor do mistakes, misunderstanding or lack of knowledge in themselves toll the running of the statute [of limitations]" [internal quotation marks omitted] ). In light of the fact that the motion for summary judgment can be decided on other grounds, the court need not resolve this issue of agency.
In fact, the cases cited by the plaintiff assist in illuminating why the plaintiff fails to carry his burden. The court in Roy v. Metropolitan Property & Casualty Ins. Co., 98 Conn.App. 528, 533, 909 A.2d 980 (2006) found that there was a genuine issue of material fact as to whether the defendant had waived the right to enforce a statute of limitations. The plaintiff in Roy presented evidence that the insurer had admitted in writing that some of the claims were " undisputed" and had issued payment to the plaintiff for some of those claims. Id., 530. While the court noted that correspondence from the insurer indicating that its investigation of other claims continued after the running of the contractual period of limitations " cannot be relied on to excuse the fact that [the plaintiff] did not bring suit within the required time," the later correspondence did " illuminate a latent ambiguity in the [earlier] correspondence from the defendant regarding the reference to the ‘undisputed’ claims of the plaintiff, in reference to the same claim number and the possibility that the defendant was, in fact, still investigating other claims made by the plaintiff." Id., 532-33. By contrast, the evidence presented by the plaintiff in the present case does not indicate that the defendant’s insurer made any suggestion that the plaintiff’s claim would be accepted in any fashion or made any payments to the plaintiff. The letters presented to the court are not ambiguous when reviewed individually or against each other.
In Tufaro v. Allstate Property & Casualty Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV-08-5014934-S (May 14, 2010, Levin, J.) (50 Conn.L.Rptr. 102, 104), the action concerned an uninsured motorist policy, whereby the policy was invoked by the plaintiff against his insurer, after which a representative of the insurer indicated to the plaintiff that, if it was determined that the other driver was uninsured, " then the uninsured motorist [coverage] will probably kick in." (Internal quotation marks omitted.) Although this statement is less explicit in its assurances to the potential plaintiff, the insurer in Tufaro gave every indication that it was actively investigating the plaintiff’s claim in the months leading up to the running of the limitations period, and engaging in extensive discussions with the plaintiff, the plaintiff’s attorney, and the plaintiff’s doctor. Id., 104-05. The insurer had also received, but had not responded to, a demand for binding arbitration. Id., 105. After all of this activity by the plaintiff, the insurer had also been in contact with the plaintiff’s attorney about the continuing investigation of the plaintiff’s claim just five days before the running of the contractual limitations period. Id., 107. This led the attorney to believe the claim was on its way to being resolved without litigation. Id. The evidence showing the insurer’s high level of engagement in Tufaro and the attorney’s attempts at due diligence might suggest a reasonable inference that the insurer had, by its conduct, waived its right to bar a claim after the running of the contractual limitation period. Id. In the present action, however, the supporting documentation presented by the plaintiff in his opposition to the motion for summary judgment lacks evidence of any activity by Crisci, himself, or even the defendant’s insurer, similar to Tufaro. Crisci’s affidavit provides that he did not speak with the defendant’s insurer until several months after the statutory limitation period had expired, fails to indicate if any communication was ever initiated by Crisci or the plaintiff to the defendant’s insurer, and fails to indicate whether Crisci received any other communication from the defendant’s insurer or whether he performed any action in response to these letters. In light of the affidavit and the documents attached, there appears to have been no actual conversation, much less any time of negotiation, between the defendant, the defendant’s insurer, the plaintiff, or Crisci.
The carefully neutral statements of the defendant’s insurer in the present action stand in stark contrast to the cases cited by the plaintiff in support of its argument for estoppel or waiver. For example, in Bergeron v . Mansour, 152 F.2d 27 (1st Cir. 1945), the plaintiff presented evidence that the insurance adjuster stated: " I want you to see your daughter and tell her that the Maryland Casualty Company is a very good company and willing to pay all her damages and don’t let her hire a lawyer at all." (Internal, quotation marks omitted.) Id., 29. Similarly, in Delson v. Minougue, 190 F.Supp. 935 (1961), the plaintiff presented affidavits alleging that the insurance agent " advised the plaintiffs that they had a perfect case and that the same would be settled; that it is not necessary to hire a lawyer, that it will be a question of how much the company will offer; that in the meantime plaintiffs should cooperate ..." (Internal quotation marks omitted.) Id., 936. On the basis of the evidence provided by the plaintiff here, the defendant’s insurer did not communicate explicitly or otherwise that the plaintiff’s claim would be settled or handled outside of litigation. On the contrary, the defendant’s insurer’s requests scrupulously avoid making any promise at all. The letters submitted by the plaintiff cannot reasonably be considered to have induced reliance by the plaintiff that his claim would be resolved without litigation.
Moreover, the plaintiff fails to provide support for the element of estoppel that " he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Celentano v. Oaks Condominium Ass’n, supra, 265 Conn. 615. Unlike in Bergeron and Delson, the plaintiff in the present action was represented by an attorney, who should be expected to approach correspondence from an insurer with greater caution and skepticism than a layperson might. Even if the modification of the language of the letters suggested a change in the status of the plaintiff’s claim, the doctrine of equitable estoppel would require the plaintiff to exercise due diligence in determining the status of his claim. See Celentano v. Oaks Condominium Ass’n, supra, 615. There is no evidence suggesting the plaintiff did anything indicating interest in the status of his claim until January 30, 2017, when Crisci contacted the defendant’s insurer and discovered that the claim would no longer be considered. This contact occurred several months after the change in the letters and after the expiration of the statute of limitations, and indicates neither due diligence nor that the plaintiff lacked reasonably available means of determining just what the defendant’s insurer intended to do with his claim. Moreover, there is no mention of the statute of limitations in any of the letters, and it is not the defendant’s obligation to inform the plaintiff or his counsel of its existence or effect. See Krupa v. Kelley, 5 Conn.Cir. 127, 133, 245 A.2d 886 (App.Sess. 1968).
Furthermore, although " waiver may be inferred from the circumstances if it is reasonable to do so" ; (internal quotation marks omitted). Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. 58; the plaintiff must demonstrate evidence sufficient to make such an inference. The plaintiff in the present case has presented no evidence suggesting an extensive engagement between the defendant’s insurer and Crisici or himself, as in Tyfaro or Roy . The statements in the communications documented by the plaintiff, moreover, are nothing like the explicit statements in Bergeron or Delson . The plaintiff fails as a matter of law to meet his burden to establish that the application of the statute of limitations was estopped or waived.
CONCLUSION
Accordingly, in light of the foregoing, the motion for summary judgment is granted.