Opinion
No. CV05 4008798 S
April 13, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #121
The defendant, Peerless Insurance Company (Peerless) has filed a motion for summary judgment as to the plaintiffs' claims for breach of contract in the first count and negligence in the second count. Peerless argues that there are no genuine issues of material fact that the plaintiffs' claim is barred by the one-year suit limitation contained in the subject homeowners insurance policy. Additionally, the defendant claims that no genuine issue of material fact exists as to the plaintiffs' claim regarding the inadequacy of their insurance coverage, as the responsibility was that of the agent, Thomas Poebron (Poebron) and his agency, Thomas Edwards Agency, Inc. (Thomas Edwards) and not Peerless.
The plaintiffs in opposing the motion for summary judgment argue that Peerless has not demonstrated the absence of genuine issues of material fact for the following reasons:
1. The Peerless motion relies on assertions of fact that are not admitted and are not established through documentation that would qualify as admissible evidence;
2. There is no affidavit in support of any of the facts asserted by Peerless that have not been admitted by the plaintiffs; and
3. The motion relies, in part, on unauthenticated documents.
In support of the motion for summary judgment, Peerless has submitted the following:
1. A copy of the homeowners policy HP74336792, certified to be true and accurate by Lydia Hodge, Underwriter, Peerless Insurance Company;
2. A copy of the Agent-Company Agreement between Peerless and the Thomas Edwards Agency, Inc., which was signed by Pochron, President of Thomas Edwards on October 4, 1999. This Agreement copy is not authenticated and is not certified;
There is also an amendment to the Agent-Company Agreement signed by Pochron, as President of Thomas Edwards. The amendment was signed on June 25, 2001.
3. Affidavit of Maureen Fusco, Claims Specialist at Peerless, dated January 9, 2007, certifying and authenticating the Agent-Company Agreement. The affidavit also sets forth that Thomas Edwards is an independent insurance agent;
This affidavit was submitted with the Defendant's Reply to the Plaintiff's Opposition to Summary Judgment.
4. Responses of Pochron and Thomas Edwards to the Request to Admit of the Defendant Peerless Insurance Company,
5. Answers of Wayne Browning to Pochron and Thomas Edwards Agency's Request for Disclosure and Production;
6. Denial of Claim letter, dated June 3, 2004.
I Standard of Law
"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, 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). "Where there is no question of fact or law which remains to be answered . . . a motion for summary judgment should be granted. If the sole question is one of law, it [can] properly be determined on a motion for summary judgment." Schlott v. Zaremski, 32 Conn.Sup. 567, 569, 345 A.2d 588, 589 (1975).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion" Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).
II Discussion A. Documentation Submitted for Purposes of Summary Judgment
The defendants set forth that the "undisputed facts" of the case are that Peerless issued a homeowners policy, number HP74336792, to Browning reciting a policy period of December 31, 2003 through December 31, 2004. The property covered is located at 1478 New Haven Avenue, Milford, Connecticut. The policy was procured by Browning from his insurance agent Pochron and the agency Thomas Edwards. The Thomas Edwards Agency, Inc. is an independent agency as provided in the Agent-Company Agreement between Peerless and Thomas Edwards. The Agent-Company Agreement provides that the agent is an independent contractor and is not an employee of Peerless. As such, the agent "shall have exclusive control of its time, the conduct of its agency, and the selection of the companies it will represent."
The subject property was purchased in 1991, and there have been intra-family title transfers of the property. Since 1998, Wayne Browning has been the owner of the property and in 2000, Browning moved out of the property.
On January 19, 2004, the property was damaged due to frozen water pipes. Peerless, never having been notified of the intra-family title transfers or that Browning, the named-insured, moved from the property, thereafter on June 3, 2004, denied coverage to Browning under the policy. The plaintiffs' complaint, dated May 10, 2005 was served on Peerless on May 11, 2005 at the Office of the Insurance Commissioner, which date is more than one year from the date of loss which was January 19, 2004.
"Practice Book § 17-45 provides in relevant part 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 . . . That section does not mandate that those documents be attached in all cases, but we note that [o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal citations and quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678-80, 874 A.2d 849 (2005).
"Therefore, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . ." Conn. Code Evid. § 9-1(a), commentary. "Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." Id. at 679.
The court has reviewed the documentation and affidavits that the defendants have submitted in support of the motion for summary judgment and finds that they are sufficiently authenticated and certified to allow the court to consider their contents for the purpose of determining the merits of the motion for summary judgment.
B. Count One: Breach of Contract
The plaintiffs' action was commenced by way of a complaint dated May 10, 2005. As noted herein, service on Peerless was effectuated on May 11, 2005. This is more than one year after the date of loss, which was January 19, 2004. The subject insurance policy provides that "No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss."
The court agrees with Peerless that the provision in the insurance policy requiring that suit be commenced within one year of the date of loss is a valid and enforceable contractual provision. See Bocchino v. Nationwide Mutual Fire Insurance Company, 246 Conn. 378, 716 A.2d 883 (1998) (holding that the policy provision requiring that an action be brought within 12 months of the date of loss is both binding and valid.); see also, Chichester v. New Hampshire Fire Ins. Co., 74 Conn. 510, 512-13, 51 A. 545 (1902) (finding that compliance with the one-year suit limitation is a precondition to recovery under the policy.) "The provision in the policy sued upon requiring an action to be brought `within twelve months next after the fire' does not operate as a statute of limitations; it 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." (Emphasis added.) Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. 512-13. It is undisputed that the insurance policy mandates that suits upon such contract must be commenced within one year of the covered loss, that the plaintiffs failed to comply with such requirement, and that Peerless is therefore entitled to judgment as a matter of law as to the plaintiff's breach of contract count.
Peerless, the party moving for summary judgment, has met its initial burden of demonstrating the absence of a genuine issue of material fact as to whether the plaintiffs' suit is barred because of their failure to bring it within the contractual time limitation. Peerless submitted a certified copy of the insurance policy and has shown that the plaintiffs failed to comply with the contract provision since they did not commence the present suit within one year of the date of loss. Thus, as to this issue, the Peerless has met its burden of showing the absence of any genuine issue of material fact which, under applicable principles of substantive law, entitles it to judgment as a matter of law. Collins v. Peerless Insurance Company, Superior Court, judicial district of Stamford-Norwalk at Stamford (Jan. 6, 2004, Lewis, J.) 36 Conn. L. Rptr. 294. Moreover, the plaintiffs, who oppose the motion for summary judgment, have failed to meet their burden of providing an evidentiary foundation necessary to demonstrate the existence of a genuine issue of material fact as to this issue. Id. Accordingly, the motion for summary judgment is granted as to the count alleging a breach of contract by Peerless.
C. Count Two: Negligence — Vicarious Liability
In their negligence claim the plaintiffs allege that the co-defendants Thomas Edwards Agency, Inc. and its agent Pochron, were negligent in obtaining the insurance policy at issue in this case. The plaintiffs allege that the policy obtained was not appropriate for them, based on the property ownership and residential information that was conveyed to Pochron, their agent. The plaintiffs allege that the defendant Peerless is vicariously liable for the actions of the co-defendant Thomas Edwards Agency and the agency's failure through its agent Pochron, to procure appropriate insurance for the property.
Peerless claims that the Thomas Edwards Agency is an independent agent that may place insurance on behalf of its clients, plaintiffs among them, with any one of several insurance companies in addition to Peerless. In support, Peerless has submitted a copy of the Agency-Company Agreement and argue that an independent insurance agent, as an employee-agent of an independent insurance agency, is the agent of the insured regarding his insurance needs. Ursini v. Goldman, 118 Conn. 554, 559 (1934); Dimeo v. Burns, Brooks McNeil, 6 Conn.App. 241, 244 (1986). Peerless continues that since Pochron was acting as a agent of the plaintiff Wayne Browning to procure insurance, Peerless cannot be vicariously liable for the conduct of either Pochron, the agent, or the Thomas Edwards Agency, Inc.
The basic principles for determining the existence of an agency relationship are set forth in Beckenstein v. Potter Carrier, Inc., 191 Conn. 120, 132-33, 464 A.2d 6 (1983). Under § 1 of 1 Restatement (Second) of Agency (1958), "[a]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact . . . Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent . . . In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Citations omitted; internal quotation marks omitted.) Beckenstein v. Potter Carrier, Inc., supra, 132-34; Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543-44, 893 A.2d 389 (2006). "It is well settled that [t]he nature and extent of an agent's authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn . . ." (Citations omitted; internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 848-49, 817 A.2d 683 (2003).
While the court has a copy of the Agent-Company Agreement, a review of that document cannot be said to have eliminated all genuine issues of material fact as to whether Pochron and the Thomas Edwards Agency were also acting as an agent for Peerless, as well as, an agent for the plaintiffs.
The same can be said for the denial of claim letter dated June 3, 2004, signed by Cynthia Z. O'Brien, Senior Claim Representative. While the court does not question the authenticity of the copy of the denial of claim letter which has been submitted by the moving party, Peerless, the court need not accept the statements contained therein, as eliminating all issues of fact. The statements contained in said letter are accepted as the version of the facts most favorable to Peerless. Whether they are, in fact, true and complete should be left to the fact finder at trial.
"Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 431, 755 A.2d 219 (2000). "When deciding a motion for summary judgment, the trial court views the evidence in a light most favorable to the non-moving party." Haesche v. Kissner, 229 Conn. 213, 217 (1994); Connecticut Bank and Trust v. Carriage Lane Assoc., 219 Conn. 772, 781 (1991).
Where claims of negligence are involved, a summary disposition is inappropriate. "Summary disposition is especially ill-adopted to negligence cases, where the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . The conclusion of negligence is necessarily one of fact." Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
Accordingly, summary judgment is denied as to the count alleging that the defendant Peerless was negligent under a theory of vicarious liability.