Summary
applying same misrepresentation standard for § 38a-816, § 38a-816, and § 38a-816 claims
Summary of this case from Perry v. Gov't Emps. Ins. Co.Opinion
No. CV 054011444
June 7, 2007
MEMORANDUM OF DECISION RE MOTION FOR PARTIAL SUMMARY JUDGMENT FOR LIFE INSURANCE PROCEEDS
Before the court is a motion for partial summary judgment brought by the plaintiff, Patricia Eastham, in her capacity as the administratrix of the estate of the decedent, Mary Curbello, who passed away on February 9, 2006. On November 10, 2005, Curbello filed a second amended complaint against the defendant, Garden State Life Insurance Company. The complaint alleges three counts: breach of contract; a cause of action under the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; as well as a breach of the implied covenant of good faith and fair dealing.
The complaint alleges the following facts. On July 17, 1995, Mary Curbello's husband, Albert Curbello, purchased a life insurance policy from the defendant, with a death benefit for $75,000 that would issue to her upon his death. The policy stated that the premium payments would remain the same for a period of ten years and required quarterly premium payments of $368.40, or $1,389 annually. During the ninth year of policy ownership, the defendant notified the Curbellos, by a letter dated June 17, 2004, that the new quarterly premium payments would be $3,242.40, or $12,234.75 annually, and that the new premium payment would be due on July 17, 2004. At that time, the Curbellos had never made a late payment to the defendant. Mary Curbello contacted the defendant about the "improper and premature" premium increase. The defendant did not adjust her premiums back to $368.40.
On October 7, 2004, Albert Curbello passed away. Thereafter, Mary Curbello paid the new quarterly premium of $3,242.40 to the defendant and, on December 13, 2004, filed a claim for the death benefit. The defendant denied her claim and returned her check for $3,242.40, citing her failure to pay the new premiums in a timely fashion. On February 9, 2006, Mary Curbello passed away.
The plaintiff has filed a motion for partial summary judgment as to counts one and two, together with a memorandum of law, a sworn affidavit and various other supporting documents. Since this case had been assigned a trial date, the defendant moved for permission to file a cross motion for summary judgment on January 18, 2007, accompanied by a memorandum entitled "Brief In Support Of Defendant's Cross-Motion For Summary Judgment And In Opposition To Plaintiff's Motion For Summary Judgment," a sworn affidavit and various other supporting documents. The defendant's motion for permission has not been acted upon by the court. On February 21, 2007, the plaintiff filed a "Memorandum Of Law In Opposition To Defendant's Cross Motion For Summary Judgment And In Reply To Defendant's Opposition To Plaintiff's Motion For Summary Judgment." On February 26, 2007, the defendant filed a "Reply Brief In Further Support Of Defendant's Cross-Motion For Summary Judgment." The matter was heard at the short calendar on February 26, 2007.
Practice Book § 17-44 provides in relevant part: "In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial."
At the outset, the court is presented with procedural irregularities in this case. First, the defendant's cross motion for summary judgment should have been brought as a motion for summary judgment under Practice Book § 17-44. Next, the court did not grant the defendant the requisite permission to file its cross motion. As a result, the court is limited to the defendant's arguments in that portion of the "cross motion" that includes the defendant's memorandum in opposition to the plaintiff's motion to summary judgment on counts one and two.
Standard for Motion for Summary Judgment
Practice Book § 17-49 provides that "judgment sought 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." "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[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
I
"[B]efore 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 . . . 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." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
Initially, the court must address the admissibility of the evidence in the present case. First, the plaintiff has submitted uncertified copies of documents. While such evidence is inadmissable, the defendant has not objected to its admissibility, and, in fact, has submitted many of the same documentary evidence. Hence, the court will consider this evidence in deciding the plaintiff's motion. Second, the plaintiff has objected to the admissibility of the "Special Attention Request Form" (request form) relied upon by the defendant. The request form is a preprinted form in which Albert Curbello stated that he needed coverage by February 23, 1995, and that his special needs were that he "will turn 66 on 2/23/95 and premiums will become higher automatically." The plaintiff objects to the admissibility of the request form on the grounds that it is inappropriate extrinsic evidence; it is hearsay and has not been properly authenticated; and it has no probative value.
As to the admissibility of extrinsic evidence, the plaintiff argues that it is "inappropriate to resolve the ambiguity created by conflicting policy provisions," and, therefore, the form "should be disregarded by the court." The defendant argues that as a piece of extrinsic evidence, the request form creates an issue of fact regarding the applicant's knowledge of the premium increase at the time that the plaintiff's husband applied for the policy.
To resolve the plaintiff's objection regarding extrinsic evidence, the court is required to determine whether the form constitutes extrinsic evidence; whether the defendant's policy is ambiguous; and, if the court finds that the policy is ambiguous, the court is then "free to consider extrinsic evidence . . . [A]lthough [i]f the extrinsic evidence presents issues of credibility or a choice among reasonable inferences, the decision on the intent of the parties is a job for the trier of fact." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Ass'n. v. Fontaine, 278 Conn. 779, 788, 900 A.2d 18 (2006). This determination cannot be made until the court discusses the ambiguity of the policy in part II A of this opinion.
The plaintiff next argues that since the request form is not based on the defendant's "own observations or the observations of an informant who had a business duty to furnish the information to the [d]efendant," the request form is inadmissible. Hearsay is "[a]n out-of-court statement used to prove the truth of the matter asserted . . . and is generally inadmissible unless an exception applies." (Internal quotation marks omitted.) Pirolo v. DeJesus, 97 Conn.App. 585, 588, 905 A.2d 1210 (2006). General Statutes § 52-180 governs the business record exception to the hearsay rule. "To admit evidence under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was in the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter . . . To qualify a document as a business record, the party offering the evidence must present a witness who testifies that these three requirements have been met." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 696, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).
General Statutes § 52-180(a) provides: "Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter." General Statutes § 52-180(b) provides: "The writing or record shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party's failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility."
"The requirements for authenticating a business record are identical to those for laying a foundation for its admissibility under the hearsay exception. It is generally held that business records may be authenticated by the testimony of one familiar with the books of the concern, such as a custodian or supervisor, who has not made the record or seen it made, that the offered writing is actually part of the records of the business." (Internal quotation marks omitted.) Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 811, 896 A.2d 814, cert. denied, 278 Con 919, 901 A.2d 43 (2006).
"Section 9-1(a) of the Connecticut Code of Evidence provides: The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 19 n. 17, 905 A.2d 55 (2006). "Commentary (a) to § 9-1(a) of the Connecticut Code of Evidence explains in relevant part that authentication requires only a preliminary showing of . . . genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be, and not its legal effect. Once this prima facie showing is made, the evidence may be admitted and the ultimate determination of authenticity rests with the fact finder." (Internal quotation marks omitted.) Verspyck v. Franco, 274 Conn. 105, 116, n. 11, 874 A.2d 249 (2005).
"While there is some authority for the proposition that a corporate officer presumptively has personal knowledge of the matters stated in an affidavit made on behalf of the corporation . . . the better rule is . . . in summary judgment proceedings, affidavits made by corporate officers and other parties, must aver or affirmatively show personal knowledge of the matters stated therein." (Citations omitted.) Evans Products Co. v. Clinton Building Supply Inc., 174 Conn. 512, 515, 391 A.2d 157 (1978).
"The Evans Products case appears to acknowledge . . . that a statement that an individual is familiar with or controls the [party's] business records shows the personal knowledge of the affiant . . . Moreover, courts have determined that affidavits indicating that the affiant was familiar with the subject matter of [the] suit . . . or fully familiar with the facts set forth herein . . . complied with the requirements of Practice Book § 17-46." (Citations omitted; internal quotation marks omitted.) Chemical Mortgage Co. v. Carbone, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 059462 (December 16, 1998, Curran, J.).
The defendant has submitted a sworn affidavit from one of its employees, Lee Horn, wherein he attests that he is the vice president of underwriting and is fully familiar with the facts stated in the affidavit. Horn further attests that the documents attached to the defendant's memorandum were created in the ordinary course of business; it was the defendant's regular course of business to create such documents; and such documents have been maintained by the defendant, as part of its business, as a record of the events described therein.
The court concludes that Horn's affidavit sufficiently authenticates the request form. The affidavit establishes a foundation for admitting the exhibit as a business record, and it states that Horn attests with personal knowledge as to the facts of the present case.
Lastly, as to the request form's probative value, the plaintiff argues that given that it is unclear from the face of the form who typed the document, when it was typed and for what purpose it was typed, the form fails to raise an issue of fact regarding the parties' intent and that the court should, therefore, disregard it.
Our appellate courts have applied the following legal principles concerning the relevancy and probative value of evidence. "Evidence is admissible only if it is relevant . . . The trial court is given broad discretion in determining the relevancy of evidence . . . Section 4-1 of the Connecticut Code of Evidence provides in pertinent part that evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence . . . [T]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant . . . Nevertheless . . . relevant evidence may be excluded by the court if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury . . ." (Citations omitted; internal quotation marks omitted.) Deegan v. Simmons, 100 Conn.App. 524, 540, 918 A.2d 998 (2007).
"[Section] 4-3 of the Connecticut Code of Evidence . . . provides: Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. [U]nfair prejudice is that which unduly arouses the jury's emotions of prejudice, hostility or sympathy . . . or tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence . . . Section 4-3 also recognizes the court's authority to exclude relevant evidence when its probative value is outweighed by factors such as confusion of the issues or misleading the jury . . ." (Citations omitted; internal quotation marks omitted.) Ancheff v. Hartford Hospital, 260 Conn. 785, 804-05, 799 A.2d 1067 (2002).
The court concludes that the request form is relevant. The form makes it more probable than not that a genuine issue of material fact exists regarding the parties' intent in this case. The court also concludes that the form's probative value outweighs any relevant dangers and adverse effects favoring its inadmissibility, particularly inasmuch as the plaintiff has not sufficiently articulated an unduly prejudicial effect that its admissibility presents to the plaintiff's right to a fair trial. As such, the court finds that the request form is admissible.
II A
Count one of the complaint alleges a breach of contract. The plaintiff moves for summary judgment on the ground that there is no genuine issue of material fact as to whether the defendant breached the contractual provisions of the policy when the defendant increased the premium payments and thereafter denied Mary Curbello's claim for death benefits. The plaintiff argues that because the schedule of premiums is in direct conflict with the application, which indicates that premiums would remain level for ten years, there exists an ambiguity in the policy that must be resolved in favor of coverage.
In response, the defendant argues that, if the policy is ambiguous, then the court must consider extrinsic evidence to determine the parties' intent and that, based on the request form, Albert Curbello admitted that he "realized that if the [p]olicy was issued after his sixty-sixth birthday in February 1995, his premiums would increase." The defendant further asserts that the request form creates an issue of fact concerning whether Albert Curbello knew of the premium increase at the time he applied for the policy. In her reply memorandum, the plaintiff reargues that an ambiguity in the policy provisions should be resolved in favor of coverage. Furthermore, the plaintiff argues that an ambiguity is not subject to any extrinsic evidence because such evidence is hearsay and contains no probative value.
The court's discussion of the request form's admissibility is in part I of this opinion.
"An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy . . . The policy words must be accorded their natural and ordinary meaning . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous . . .
"[A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous . . . The fact that the parties interpret the terms of a contract differently, however, does not render those terms ambiguous . . . Rather, whether a contract is ambiguous is a question of law for the court." (Citations omitted; internal quotation marks omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 199-200, 901 A.2d 666 (2006). "If the policy is ambiguous, extrinsic evidence may be introduced to support a particular interpretation . . . If the extrinsic evidence presents issues of credibility or a choice among reasonable inferences, the decision on the intent of the parties is a job for the trier of fact." (Citation omitted; internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 255 Conn. 295, 306, 765 A.2d 891 (2001); see also Connecticut Ins. Guaranty Ass'n. v. Fontaine, supra, 278 Conn. 788.
In support of her argument, the plaintiff presents, among other forms of supporting evidence, the following: a copy of the application for insurance; a copy of the policy issued by the defendant; a copy of the defendant's answers to the plaintiff's requests for admission, a copy of a letter from the defendant, dated June 17, 2004, notifying Albert Curbello that the level term period of the policy has ended; and a sworn affidavit of the plaintiff attesting that she "agrees with the position of my late Aunt [Mary Curbello], that the premiums were increased too early and that her benefits were wrongfully denied."
In his application for coverage, Albert Curbello indicated his desired coverage by placing an "x" mark in a checkbox that reads "$75,000/10*." According to the application, the asterisk means "number of years your premium remains level." Additionally, the policy includes on page six, under a heading entitled,
"General Provisions": "THE CONTRACT CONSISTS OF THE POLICY AND THE APPLICATION — We have issued this policy in consideration of the application and payment of the premiums. A copy of the application is attached and is a part of this policy. The policy with the application make the entire contract.
The policy also includes a schedule of annual premiums. The schedule provides that the annual premium payment is $1,389 during policy years one through nine and that the annual premium payment is $12,234.75 in the tenth year of the policy. Finally, in the copy of the defendant's answers to the plaintiff's requests for admission, the defendant admits request number thirteen, "that it made [Albert] Curbello's application for life insurance part of the life insurance policy that it issued to [Albert] Curbello."
The court concludes that the policy is ambiguous. By its own terms, the policy incorporates the application to make up the entire contract, and the application is directly at variance with the policy's schedule because the former provides that the premium amount will remain level at $1,389 annually for ten years while the latter provides for an increase to $12,234.75 annually in the tenth year. An ambiguous policy is subject to extrinsic evidence. The request form presents an issue of fact concerning whether Albert Curbello knew that the premiums would increase in the tenth year. The request form thereby raises questions of intent and of Albert Curbello's subjective state of mind, which are genuine issues of material fact. The plaintiff has not sustained her burden to demonstrate the nonexistence of a genuine issue of material fact on count one, and, therefore, her motion for summary judgment on this count should be is denied.
B
Count two of the complaint alleges a cause of action under CUTPA for a violation of CUIPA. The plaintiff moves for summary judgment on the ground that the defendant's misrepresentations concerning premium payment levels are a violation of CUIPA. The plaintiff argues that the defendant's premature increase of its premiums and its failure to correct this error are a violation of CUIPA, General Statutes §§ 38a-816(1)(a), 38a-816(1)(f), 38a-816(2) and 38a-816(8), and, consequently, she is entitled to judgment as a matter of law.
In response, the defendant argues that the plaintiff's CUIPA claim is barred by the applicable CUTPA statute of limitations period of three years that began to run from the date of the conduct complained of, which, in the present case, was the time the insurance policy was issued in July 1995. The defendant further asserts that the plaintiff has not established the essential elements of misrepresentation under a CUIPA claim. In her reply memorandum, the plaintiff argues that the statute of limitations began to run at the time the defendant notified her of the increase in premiums in July 2004. Alternatively, she argues that even if the court were to assume that the misrepresentation first occurred in 1995, the plaintiff's claim is tolled under the continuing course of conduct doctrine due to a special relationship between the parties and/or subsequent conduct of the defendant related to the prior act. Lastly, the plaintiff reiterates that she has pleaded the elements for a CUIPA claim based on the defendant's misrepresentations.
Whether the plaintiff's CUIPA claim is time barred is governed by General Statutes § 42-110g(f), which provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." Section 42-110g(f) applies to a private cause of action brought under CUTPA to enforce alleged CUIPA violations; Lees v. Middlesex Ins. Co., 219 Conn. 644, 653-54, 594 A.2d 952 (1991); and begins to run from the time that the alleged violation occurs, not from the time that the plaintiff's cause of action accrues. Thus, it is an occurrence statute. Fichera v. Mine Hill Corp., 207 Conn. 204, 212-13, 541 A.2d 472 (1988).
"The question of whether a party's claim is barred by the statute of limitations is a question of law . . . The issue . . . of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact." (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, CT Page 10125 98 Conn.App. 125, 139, 907 A.2d 1220 (2006). The continuing course of conduct doctrine is, in application, "conspicuously fact-bound." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 525, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001).
In the present case, paragraph nineteen of the plaintiff's second count of her complaint alleges: "Defendant has committed violations of CUTPA and CUIPA in one or more of the following ways: A) By issuing/circulating misrepresentations of the Policy's terms and conditions, stating in no uncertain terms that the premiums would remain level for a period often (10) years, and then increasing the Plaintiff's premiums after nine (9) years, in violation of [General Statutes] § 38a-816(1). B) By submitting false information and advertisement to the public, indicating that the Policy's premiums would be constant for a ten (10) year period, but increasing the Plaintiff's premiums after nine (9) years, in violation of [General Statutes] § 38a-816(2). C) By representing in its insurance application the number of years the Policy's premiums would remain constant for purposes of obtaining a fee from the Plaintiff and then refusing to honor such representations, in violation of [General Statutes] § 38a-816(8)."
As an occurrence statute, § 42-110g(f) begins to run from the time the alleged violation occurs, which, in the present case, is July 1995, when Albert Curbello purchased the policy in which it allegedly stated that premiums would remain level for ten years. To toll the statute of limitations, the plaintiff must establish the existence of a continuing duty on the part of the defendant until the date the alleged misrepresentation was discovered in 2004.
"[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . .
"In sum, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . ." (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, supra, 98 Conn.App. 140.
The affidavit of the plaintiff sets forth evidence that the defendant was made aware of Albert Curbello's particular insurance needs, that he placed his trust in the defendant and that he relied upon the defendant's experience in structuring his policy. Additional evidence shows that the defendant relied on the schedules to increase premiums for the policy in 2004, in violation of the defendant's initial representation allegedly made to Curbello that the premiums would stay level for ten years. Whether the initial representation was included in the application or in the schedule, the plaintiff has consistently claimed that these are in conflict with each other. Any subsequent acts by the defendant include the failure to pay the policy's death benefit. Based on the plaintiff's pleadings and evidence, a genuine issue of material fact remains concerning whether the defendant's conduct tolled the statute of limitations.
Lastly, the plaintiff maintains that the defendant's representations regarding premium payment levels constitute a clear violation of CUIPA. Unfair or deceptive acts or practices in the business of insurance are defined by statute. Section 38a-816 provides in relevant part: "The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance: (1) Misrepresentations and false advertising of insurance policies. Making, issuing or circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement, sales presentation, omission or comparison which: (a) Misrepresents the benefits, advantages, conditions or terms of any insurance policy . . . (f) is a misrepresentation, including, but not limited to, an intentional misquote of a premium rate, for the purpose of inducing or tending to induce to the purchase, lapse, forfeiture, exchange, conversion or surrender of any insurance policy . . . (2) False information and advertising generally. Making, publishing, disseminating, circulating or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, an advertisement, announcement or statement containing any assertion, representation or statement with respect to the business of insurance or with respect to any person in the conduct of his insurance business, which is untrue, deceptive or misleading . . . (8) Misrepresentation in insurance applications. Making false or fraudulent statements or representations on or relative to an application for an insurance policy for the purpose of obtaining a fee, commission, money or other benefit from any insurer, producer or individual."
The complaint alleges that the defendant misrepresented the length of time that the premiums would remain level. Also, the plaintiff has submitted evidence in the affidavit that Albert Curbello relied on the defendant's misrepresentations. These are questions of fact in dispute as to coverage and the time period of level premiums that may have misled Albert Curbello. "[W]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact . . . It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions . . . It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised." (Citation omitted; internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 497-98, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). In addition, "the function of the trial court is only to determine whether there is a genuine issue as to any material fact, but not to decide that issue if it does exist until the parties are afforded a full hearing." Yanow v. Teal Industries, Inc., 178 Conn. 262, 269, 422 A.2d 311 (1979). Thus, the plaintiff's motion for summary judgment on count two should be denied.
Conclusion
For the foregoing reasons, the plaintiff's motion for partial summary judgment on counts one and two is denied.