Opinion
No. CV 04 0526096S
May 19, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiffs allege in their complaint that on March 13, 2000, they were the owners of property at 3 Prospect Street in Winsted, Connecticut, which suffered water damage from a broken water pipe due to a manufacturing defect. The plaintiffs had previously entered into a contract with the defendant insurance company for a Builders Risk Plus Renovation Project insurance policy for a term from September 7, 1999 to September 7, 2000. Subsequently to the aforementioned loss the plaintiffs presented a claim to the insurance company for the losses they sustained and their claim was denied. The plaintiffs eventually filed a lawsuit entitled, Zaleski v. Great American Insurance Group, CV 03 0519479 S, however summary judgment was granted in favor of the defendant for reason that the action was not brought against the proper defendant.
The plaintiffs allege that they brought the instant action within one year of the Court granting the motion for summary judgment in the previous action and that they are bringing it pursuant to the provisions of § 52-593 C.G.S., the accidental failure of suit statute.
On June 2, 2004, the defendant filed an answer with special defenses. The defendant alleges in the special defenses that the plaintiffs failed to (1) comply with the policy provisions requiring them to bring an action within two years after they first had knowledge of the loss; (2) state a claim upon which relief can be granted in that the savings statute, General Statutes § 52-593 C.G.S., naming the wrong defendant, cannot save a claim in which the original action was brought outside of the contractual limitation period; (3) state a claim pursuant to the Connecticut Unfair Insurance Practices Act (CUIPA) General Statutes §§ 38a-815 et seq. for the refusal to pay one claim; and (4) state a claim under CUIPA, absent an alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA) General Statutes 42-110a et seq.
On July 28, 2004, the insurance company filed a motion for summary judgment as to the allegations contained in the plaintiffs' complaint on the ground that "there exists no genuine issue as to any material fact . . . because the complaint is barred by the two-year limitation period provided [in the insurance policy] and fails to state a cause of action based on [CUIPA] . . ." The insurance company submitted a memorandum of law in support of the motion accompanied by an affidavit and documentary evidence. On August 30, 2004, the plaintiffs filed a memorandum of law in opposition to the motion with a supporting affidavit attesting to the plaintiffs' reliance on the insurance company's adjuster that their claim was being processed and would be paid shortly.
Discussion
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short. calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the plaintiffs' motion, a brief review of the standards for the granting of a Motion for Summary Judgment is warranted:
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.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
"Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "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). "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 such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
The defendant argues in each of the memorandum of law it filed in support of its motion for summary judgment that the present action as well as the prior action was not timely filed by the plaintiffs. It points to the contract of insurance purchased by the plaintiffs which states in relevant part that: "No one may bring a legal action against us under this Coverage Part unless: (1) there has been full compliance with all the terms of this coverage part; and (2) the action is brought within 2 years after you first have knowledge of the `loss.'" As a result of this policy provision, it maintains that the plaintiffs had until March 13, 2002, to commence an action since they allege in their complaint that the water damage to their property occurred on March 13, 2000. Instead, the insurance company asserts that the plaintiffs brought the first action on January 27, 2003, and the present one on February 26, 2004. Thus, the insurance company argues that there is no genuine issue of material fact because the plaintiffs did not commence an action against it within the two-year time limitation and § 52-593 C.G.S. does not apply to save a second claim where the first was brought outside of the contractual limitation period. Therefore, as a matter of law, it is entitled to judgment pursuant to applicable principles of substantive law.
In response the plaintiffs argue in their memorandum of law that based on the affidavit submitted by Konstanty Zaleski, "there exist factual issues of waiver and excuse which must be decided by the trier of facts based on the evidence at trial relative to those matters . . ." They further argue that whether 52-593 applies to save the present case "depends on the factual determination of whether the defendant is guilty of waiver, is estopped, or committed fraud in not processing plaintiffs' request for payment for the loss insured against by the [insurance company]." In his affidavit, Konstanty Zaleski testifies that the reason he did not file a suit immediately was because he relied on the representations of the adjuster assuring him that the claim was being processed and would be paid shortly, and, at the time, Zaleski did not realize that he was being mislead by the adjuster.
Section 52-593 C.G.S. provides in relevant part that:
When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.
The one-year time period begins to run when the clerk has issued notice of the decision. Russell v. Thomas O'Connor Co., 42 Conn.App. 345, 347, 679 A.2d 420 (1996). Because the savings statutes 52-592 and 52-593 enable parties under certain enumerated procedural circumstances "to institute actions despite the expiration of the statute of limitations"; McKeever v. Fiore, 78 Conn.App. 783, 795, 829 A.2d 846 (2003); courts have been sensitive to these conflicts by recognizing the remedial nature of the savings statutes but refusing to construe them in a manner that "would defeat the basic purpose of the public policy that is inherent in statutes of limitation . . . (Internal quotation marks omitted.) Isidro v. State, 62 Conn.App. 545, 551, 771 A.2d 257 (2001) (considering 52-593); see also Rosario v. Hasak, 50 Conn.App. 632, 639, 718 A.2d 505 (1998) (considering 52-592). In particular, "[t]he circumstances that lead to a plaintiff's request for relief under a savings statute are not irrelevant"; Tamburrino v. Allard, Superior Court, judicial district of Ansonia/Milford at Derby, Docket No. CV 03 0083429 (November 12, 2004, Lager, J.) (38 Conn. L. Rptr 222, 223); and a case brought under a savings statute "cannot be decided in a factual vacuum." Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998).
Section 52-592 provides in relevant part: "(a) if any action commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
"[T]he purpose and language of General Statutes 52-592 and 52-593 are closely analogous." Henriquez v. Allegre, 68 Conn.App. 238, 244 n. 10, 789 A.2d 1142 (2002). In the course of interpreting [52-592] . . . [which also] . . . provides refuge from the statute of limitations, [the Appellate Court] noted that [a]lthough [General Statutes] 52-592 is a remedial statute and must be construed liberally . . . it should not be construed so liberally as to render statutes of limitation virtually meaningless . . . Similarly, we conclude that the same logic applies to 52-593 . . ." (Citation omitted; internal quotation marks omitted.) Billerback v. Cerminara, 72 Conn.App. 302, 309, 805 A.2d 757 (2002). See also Hoskinson v. North Canaan, supra, 36 Conn. L. Rptr. 14. "Our Supreme Court has recognized that Section 52-593 applies only in circumstances in which the plaintiff's original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual." (Citations omitted; internal quotation marks omitted.) Isidro v. State, supra, 62 Conn.App. 549-50.
Pursuant to the provisions of § 52-593 C.G.S., a plaintiff has an extended statute of limitations to serve the correct defendant "within one year after the termination of the original action." The plaintiffs commenced the present action on February 26, 2004, within one year after the termination of the original action on December 22, 2003. To qualify for the extended time period pursuant to § 52-593, the plaintiffs' original action, however, must have been filed timely. Our courts have hold that a provision in an insurance policy requiring suit to be brought within a specific time period from "the loss is a valid contractual obligation and a failure to comply therewith is a defense to an action on the policy unless the provision has been waived or unless there is a valid excuse for nonperformance . . . This condition is a 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 contracts." (Citations omitted.) Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979).
The crucial issues in this case are whether the plaintiffs (1) were excused from performance of the contractual condition in the policies to bring suit within two years after the inception of the loss because their compliance was "rendered impossible through the existence of such facts as by the law of contract will excuse the performance of such a condition" and (2) may invoke § 52-593 C.G.S. to save their action from being dismissed.
In Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 716 A.2d 883 (1998), the court examined whether the accidental failure of suit statute, § 52-592 C.G.S. could save an action which had not been brought within one year of the date of the loss as required by the fire insurance policy. The court stated that the provision in the insurance policy requiring the action to be brought "within twelve months next after the fire . . . is a part of the contract, the rights of the parties flow from the contract, and must be governed by the rules of law applicable to contracts. Such a provision in a contract of insurance is valid and binding upon the parties. (Internal quotation marks omitted.) Id., 383. The court explained that the savings statute does not apply to extend for one year a provision in a contract of insurance, it only extends for one year causes of action that would be "time barred by an otherwise applicable statute of limitations [in the second suit], not to actions that are time barred by a contractual policy provision . . ." Id. 384. "Since a provision in a fire insurance policy requiring suit to be brought within one year of the loss is a valid contractual obligation, a failure to comply therewith is a defense to an action on the policy unless the provision has been waived or unless there is a valid excuse for nonperformance; and such a condition requiring suit to be brought within one year does not operate as a statute of limitations . . . and . . . [t]his condition is a part of the contract that controls the rights of the parties under the contract and, hence, such rights must be governed by the rules of law applicable to contracts." (Citation omitted; internal quotation marks omitted.) Id., 384-85. Thus, the court opined that "the accidental failure of suit statute applies to cases barred by a statute of limitations and does not apply so as to obviate an insured's contractual obligation to commence an action within one year of the loss insured against." Id., 385. The court held that the savings statute does not apply to save a second action on an insurance policy brought beyond the applicable contractual limitation period but within one year of a timely, but unsuccessful prior action on the same loss. Id., 383-84; see also Collins v. Peerless Ins. Co., supra, 36 Conn. L. Rptr. 294 (the accidental failure of suit statute does not apply to contractual limitations periods set forth in insurance contracts).
Since § 52-593 C.G.S. is a statute that is analogous to § 52-592 C.G.S., this Court concludes that the reasoning in Bocchino is applicable to the insurance policy provision in the present case mandating the filing of a lawsuit within two years after the loss occurred.
The plaintiffs did not comply with the provision in the policy to timely file the original action, therefore they cannot rely on § 52-593 C.G.S. to save the present action regardless that this second case was filed within one year following the decision in the original case.
Additionally the plaintiffs have failed to present any evidence, other than legal conclusions, bald assertions, and self-serving affidavits that they were excused from complying with the insurance provision requiring them to have initiated the original action no later than March 13, 2002, or two years from any loss sustained. Whereas there are no genuine issue of material fact as to the timeliness of the original action the motion for summary judgment should be granted.
So ordered.
Richard A. Robinson, J.