Opinion
No. X07 CV 09 5034931 S
November 4, 2011
MEMORANDUM OF DECISION
I
The plaintiff, Joseph Fradianni, commenced suit against the defendants, Louis Gulino and Protective Life Insurance Company (Protective Life), on May 25, 2009 and May 26, 2009, respectively, seeking to assert a class action. The plaintiff alleges the following facts in his amended complaint filed on August 16, 2010. On or about September 17, 1992, the plaintiff purchased a life insurance policy with a death benefit of $130,000 from Interstate Assurance Company (IAC) through Gulino — an insurance agent and his brother-in-law. Protective Life is a successor owner of some of the life insurance policies issued by IAC.
Specifically, the plaintiff bought a "Universal Life" policy called "INTERFLEX II" according to exhibit G attached to his memorandum in opposition to Protective Life's motion for summary judgment.
The plaintiff testified at his deposition that he is married to Gulino's sister and Gulino is married to the plaintiff's cousin.
The plaintiff's policy contained a table of guaranteed cost of insurance rates and the table had "a statement that rating factors may be applied to the monthly guaranteed rates." The plaintiff's rating was 100 percent and he received an "exchange program illustration" when he obtained the policy giving its value over time. The illustration was based upon a premium of $4,700 for the first year of the policy and $2,600 a year for the second through the twelfth year. The plaintiff paid the premiums in the amounts in the illustration through at least July of 2007. While a portion of his payments paid for insurance premiums, a portion went into an investment account for his benefit. On or about September 15, 2008, the policy lapsed because there were insufficient funds in the investment fund to pay the insurance premiums. The plaintiff alleges that the lapse occurred because IAC and Protective Life overcharged for the cost of insurance and inappropriately took money from the investment account to cover the cost of insurance.
It is undisputed that the plaintiff had single bypass surgery in 1980.
As to Protective Life, the plaintiff alleges that this conduct constitutes breach of contract and breach of the duty of good faith and fair dealing (first count); negligent misrepresentation (second count); intentional misrepresentation (third count); breach of fiduciary duty (fourth count); violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and/or the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. (fifth count); conversion (sixth count); and unjust enrichment (seventh count). Against Gulino, the plaintiff also alleges negligent misrepresentation (eighth count); CUTPA and/or CUIPA violations (ninth count); and breach of fiduciary duty (tenth count).
On September 8, 2010, Gulino filed a motion for summary judgment on the grounds that the counts against him are barred by the applicable statutes of limitations. On September 30, 2010, Protective Life filed a motion for summary judgment also on the grounds that the counts against it are barred by the statutes of limitations. Additionally, Protective Life argues that the plaintiff cannot show a breach of contract; a breach of good faith and fair dealing; any misrepresentation; any justifiable reliance on any misrepresentation; or any fiduciary duty. Protective Life further maintains that the plaintiff's allegations of conversion and unjust enrichment fail as a matter of law.
At the initial status conference with this court, the parties agreed that the motions for summary judgment should be decided prior to the motion seeking certification of the class.
In response, the plaintiff filed a memorandum in opposition to Gulino's motion for summary judgment on September 30, 2010 arguing that there are genuine issues of material fact as to whether Gulino and the plaintiff had a fiduciary relationship; whether Gulino failed to disclose material information; and whether Gulino had a continuing duty to make and rectify disclosures. The same day, the plaintiff also filed his own motion for summary judgment against Protective Life on the grounds that there are no genuine issues of material fact regarding Protective Life's breach of the policy. On November 1, 2010, the plaintiff filed a memorandum of law in opposition to Protective Life's motion for summary judgment arguing that genuine issues of material fact exist as to whether it breached the insurance policy and whether a continuing course of conduct tolled the statutes of limitations. Protective Life filed a memorandum of law in opposition to the plaintiff's motion for summary judgment on November 1, 2010. The parties filed reply memoranda and this court heard oral argument on the motions on January 24, 2011. After oral argument, the parties submitted additional pleadings and memoranda of law related to the motions. On August 16, 2011, the court heard additional oral argument and Protective Life filed a further brief.
Some of these pleadings indicate that the parties do not agree as to which documents constitute the original policy. The court requested that the parties stipulate to the documents. Ultimately, the parties could not agree, but jointly submitted the two documents to which they agree.
II
"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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).
"[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 390, 949 A.2d 450 (2008).
"Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations [are] not in dispute." (Citation omitted; internal quotation marks omitted.) Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 8, 965 A.2d 556, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009).
III A.
Gulino argues that each of the three counts against him must fail because they are barred by the statutes of limitations. The plaintiff counters that they are not barred by the statutes of limitations because there is a continuing course of conduct based upon a fiduciary relationship between Gulino and him.
Negligent misrepresentation and breach of fiduciary duty are governed by General Statutes § 52-577. See Ahern v. Kappalumakkel, 97 Conn.App. 189, 192 n. 3, 903 A.2d 266 (2006). Section 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." CUTPA likewise has a three-year limitation. General Statutes § 42-110g(f) ("[a]n action under this section may not be brought more than three years after the occurrence of a violation of this chapter"). It is construed the same way as § 52-577. See Fichera v. Mine Hill Corp., 207 Conn. 204, 213, 541 A.2d 472 (1998) ("[w]e are unable to perceive any significant distinction applicable to this case between the `act or omission' reference, denoting the start of the limitation period in [General Statutes] §§ 52-577 and 52-584, and the `occurrence of a violation' phrase in § 42-110g(f), setting the time when the three year period begins for bringing an action alleging a CUTPA violation").
"The relevant date of the act or omission complained of, as that phrase is used in § 52-577, is the date when the negligent conduct of the defendant occurs and not the date when the plaintiffs first sustain damage. When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." (Internal quotation marks omitted.) Piteo v. Gottier, 112 Conn.App. 441, 445-46, 963 A.2d 83 (2009).
In the present case, it is undisputed that Gulino was an insurance agent and obtained the policy from IAC on behalf of the plaintiff. An insurance broker owes "a duty to his principal to exercise reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on his part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss." Ursini v. Goldman, 118 Conn. 554, 559, 173 A. 789 (1934). "When procuring insurance for a person such as the plaintiff, a broker becomes the agent of that person for that purpose . . . Once that purpose is accomplished, however, and the insurance is procured, the agency relationship between the insured and the broker terminates, and the broker is without any authority to do anything which further affects the insured unless expressly or impliedly authorized by the insured to do so." (Citations omitted.) Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 664, 228 A.2d 803 (1967); see also Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 565-66, 952 A.2d 818 ("as a general rule, the agency relationship between a broker and the insured terminates upon procurement of the requested insurance policy"), cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).
"An insurance agent is a person expressly or impliedly authorized to represent an insurance company in its dealings with third persons . . . An insurance broker is one who acts as a middleman between the insured and insurer and who solicits insurance from the public under no employment from any special company and who either places an order for insurance with a company selected by the insured, or, in the absence of such selection, with a company the broker selects." (Citations omitted; internal quotation marks omitted.) Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 664, 228 A.2d 803 (1967). "Connecticut appellate authority exists to support the proposition that the standard of care owed by an insurance agent is equal to that owed by an insurance broker. In Tolbert v. Connecticut General Life Ins. Co., 257 Conn. 118, 125, 778 A.2d 1 (2001), an insurance broker and an insurance agent were cited as being treated equally for purposes of the agency relationship between an insured and the insurance agent. See also Cheshire Brass Co. v. Wilson, 86 Conn. 551, 557, 86 A. 26 (1913)." Holmes v. John M. Glover Agency, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 07 5006575 (January 29, 2009, Bellis, J.). "Additionally, these terms are used interchangeably in General Statutes § 38a-976(c), where the definition of an insurance agent was modified to share the same definition as an insurance broker by Public Acts 1994, No. 94-160, §§ 23 and 24." Id.
In the plaintiff's amended complaint, his allegations almost exclusively pertain to the events of the procurement of the policy in 1992. Some evidence suggests that Gulino persuaded the plaintiff to roll over another life insurance policy into the IAC policy although it is unclear when this occurred except that it was sometime around the policy's inception. The only other evidence of any possible further contact is an annual statement from IAC for the year ending September 15, 1997 that shows Gulino as the agent of record for the plaintiff.
In Fradianni's deposition, on pages 154-55, the following colloquy took place:
Q. As I understand what you're saying, your complaint against Mr. Gulino revolves around what he did in 1992 in selling you the policy; is that correct?
A. Yes.
Q. Okay. Is there anything else that he has done since that form the basis of your complaint?
A. No, I haven't been in contact with him.
In the plaintiff's amended complaint, he alleges that "Gulino consented to act in [the plaintiff's] best interest in . . . reviewing statements related to [the plaintiff's] policy and account." Nevertheless, Gulino testified in his deposition that he had no further discussions with the plaintiff after obtaining the policy and that he never received any IAC documents after 1997. He further averred that the plaintiff never contacted him about the policy.
The plaintiff's deposition testimony supports Gulino's position. The plaintiff recalls little about the transaction, but he testified that he never contacted Gulino with questions about the policy at any time. Indeed, the plaintiff testified that he had not spoken to Gulino at all in almost fifteen years. (Fradianni deposition transcript, pp. 154-61.) Additionally, in the plaintiff's complaint to the state insurance department, he listed his current agent/broker as "unknown." Hence, there is no genuine issue of material fact that the latest possible action that Gulino took on behalf of the plaintiff was in 1997. Therefore, the three-year statutes of limitations applicable to the counts against Gulino bars suit even if Gulino's wrongful conduct occurred in 1997 because the plaintiff did not commence this action until May 25, 2009.
Nevertheless, the plaintiff argues the statutes of limitations are tolled by the continuing course of conduct doctrine based upon a fiduciary relationship between the plaintiff and Gulino. The continuing course of conduct doctrine does not apply to the plaintiff's CUTPA claim against Gulino. See Flannery v. Singer Asset Finance Co., LLC, 128 Conn.App. 507, 514, 17 A.3d 509 ("[a]s to the plaintiff's CUTPA claim, our Supreme Court has stated that the continuing course of conduct doctrine does not toll the three year statute of limitations set forth in § 42-110g(f)"), cert. granted, 302 Conn. 902, 23 A.3d 1242 (2011). Therefore, Gulino's summary judgment is granted as to the CUTPA count and the court addresses the continuing course of conduct doctrine with respect to the counts of negligent misrepresentation and breach of fiduciary duty.
"[Section] § 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues . . . Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed . . . [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 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 . . . Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing." (Internal quotation marks omitted.) Lee v. Brenner, Saltzman Wallman, LLP, 128 Conn.App. 250, 257, 15 A.3d 1215 (2011).
In the present case, there is no evidence of later wrongful conduct. Therefore, the plaintiff must establish that there was a special relationship, i.e., a fiduciary relationship, giving rise to a continuing duty to the plaintiff. See id.
"[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him . . . We have not, however, defined that relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other . . . [U]nder our case law, the fiduciary relationship is not singular. The relationship between sophisticated partners in a business venture may differ from the relationship involving lay people who are wholly dependent upon the expertise of a fiduciary. Fiduciaries appear in a variety of forms, including agents, partners, lawyers, directors, trustees, executors, receivers, bailees and guardians. [E]quity has carefully refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations." (Citations omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 108-09, 912 A.2d 1019 (2007).
"[B]ecause of the increasing complexity of the insurance industry and the specialized knowledge required to understand all of its intricacies, the relationship between an insurance agent and a client is often a fiduciary one . . . The existence of such a relationship presents a question of fact . . ." (Citations omitted; internal quotation marks omitted.) Sportsmen's Paradise v. Peerless Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 052606 (February 6, 1992, Dranginis, J.) ( 7 C.S.C.R. 401, 402) [ 6 Conn. L. Rptr. 44]; see also Thompson Peck v. Reliance Ins. Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0267491 (April 28, 2005, Tanzer, J.). Here, there is a genuine issue of material fact as to whether a fiduciary relationship existed between Gulino and the plaintiff and whether Gulino had a continuing duty to disclose material facts to the plaintiff. See Blanchette v. Barrett, 229 Conn. 256, 281, 640 A.2d 74 (1994) ("under the continuing course of conduct doctrine, a fiduciary would be required to disclose what he knows").
Gulino argues, however, in his reply to the plaintiff's memorandum in opposition to Gulino's motion for summary judgment, that the plaintiff's action is not tolled because there is no genuine issue of material fact that the plaintiff discovered his actionable harm on or around February 28, 2003. "[T]he statute of limitations is not tolled when the plaintiff discovers some form of actionable harm." Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 331, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). "Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof . . . The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories." (Citations omitted; internal quotation marks omitted.) Id., 323. "Most importantly, the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm." Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004) (continuing course of conduct inapplicable where plaintiff discovered her injury five days after tortious act); see also Wiretek v. Taraerin Enterprises, LLC, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 06 6002110 (May 25, 2010, Shapiro, J.) (continuing course of conduct inapplicable as plaintiff discovered damages on dates of occurrence).
In the present case, it is undisputed that the plaintiff inquired into his policy in February of 2003 and that Protective Life provided him with an illustration, based upon the plaintiff paying the same $2,600 a year, on or around February 28, 2003. The illustration clearly states that his policy "would terminate in 2008 unless a higher premium were paid" and shows rapidly diminishing policy value. This directly contradicts the increasing policy value contained in the "exchange program illustration" that the plaintiff alleges he received when he took out the policy. Furthermore, the 2003 illustration is consistent with the explicit warning in the annual statement of October 2003, from Protective Life to the plaintiff that stated the policy would terminate in July of 2008. Thus, there is no genuine issue of material fact that the plaintiff discovered or through the exercise of reasonable care should have discovered the harm in February of 2003 which is more than three years prior to bringing this action against Gulino on May 25, 2009. Once the plaintiff discovered the harm, the continuing course of conduct did not apply and the statutes of limitations began to run. See Rosato v. Mascardo, supra, 82 Conn.App. 405.
In paragraph forty-seven of the first count of the amended complaint, and made part of each of the ten counts, the plaintiff admits, "At various times, including in February 2003, and then again when the policy lapsed, Fradianni or his wife made inquiry as the status of his life insurance policy and was provided information from PLIC."
The $2,600 a year figure is curious because the plaintiff should have been paying approximately $3,200 a year based upon the monthly premium of approximately $267.80, according to the policy schedule attached to the plaintiff's motion for summary judgment at exhibit D.
Some evidence suggests that perhaps he could have known sooner. For example, the "exchange program illustration" that the plaintiff alleges he received when he took out the policy states that the plaintiff would need to pay more premium to maintain the policy values after attaining the age of seventy-two-albeit if he made no annual payments for six years. (It is undisputed, however, that the plaintiff continued to pay the quarterly premiums.) On this point, the plaintiff stated at his deposition that had he read the "illustration that under the guaranteed values that [he] would need more premium to maintain the policy values" he would not have purchased the policy. (Fradianni deposition transcript, pp. 225, 230.)
Additionally, the annual statement, dated September 15, 1997, attached as exhibit C to the plaintiff's memorandum in opposition to Protective Life's motion for summary judgment, gives an ending balance of $7,705.29. The plaintiff admits to reviewing the annual statements and averred that he was sure he always saw them. (Fradianni deposition transcript, pp. 70, 192.) This varies significantly with the "exchange program illustration" where the policy value should have been at a minimum over $10,000 based upon guaranteed values. It is noted, however, that other than the 1997 statement, the parties did not submit other annual statements except for 2003 and after.
This would also be true as to the CUTPA count if the continuing course of conduct doctrine applies to CUTPA violations. See Flannery v. Singer Asset Finance Co., LLC, 302 Conn. 902, 23 A.3d 1242 (2011).
Moreover, "[t]he accrual of the cause of action is a singular moment in time. Allowing that point in time to be pushed forward as long as it is claimed that the negligent conduct continued would eviscerate the policies underlying the statute of limitations. The plaintiff would be allowed to acquiesce in the defendant's conduct as long as it was convenient to the plaintiff. That would undermine the promotion of finality in the litigation process . . . and the prevention of the unexpected enforcement of stale claims concerning which the persons interested have been thrown off their guard by want of prosecution." (Citation omitted; internal quotation marks omitted.) Id., 405-06.
Here, the accrual of the cause of action occurred in 1992 when Gulino sold the policy to the plaintiff. Regardless of whether Gulino told the plaintiff what his rating was, i.e., "premium class" or "100 percent," it would appear from Gulino's deposition testimony that he did not know and did not explain to the plaintiff that it meant the plaintiff would pay double for the cost of insurance and would need to pay more to sustain the policy in later years. While this may have been negligent, it does not change the fact the plaintiff discovered his harm or should have discovered his harm more than three years before he filed suit.
The plaintiff also argues that fraudulent concealment should toll the statutes of limitations under General Statutes § 52-595. The issue of whether Gulino fraudulently concealed the plaintiff's cause of action is irrelevant to the questions of when the plaintiff discovered the actionable harm and whether he filed his action within three years from the discovery. See Mountaindale Condominium Assn., Inc. v. Zappone, supra, 59 Conn.App. 331. Nevertheless, the court addresses the argument.
Section 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence."
"[I]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute [of limitations], except where there is something tantamount to a fraudulent concealment of a cause of action . . . To prove fraudulent concealment, a plaintiff must demonstrate that the defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the cause of action, (2) intentionally concealed those facts from the plaintiff and (3) concealed those facts for the purpose of obtaining delay on the part of the plaintiff in filing a cause of action against the defendant . . . Our Supreme Court has stated that [t]o establish that the [defendant] had fraudulently concealed the existence of [the plaintiff's] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish [the] cause of action . . . and that [the defendant] had intentionally concealed those facts from the [plaintiff] . . . [Additionally], the [defendant's] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [the defendant] afterward [seeks] to take advantage by pleading the statute." (Citations omitted; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn.App. 515-16.
The plaintiff alleges in paragraph forty-seven of the first count of his amended complaint that "[t]he information provided by [Protective Life] did not include data that would have allowed [the plaintiff] or a policyholder of ordinary intelligence to determine that [the plaintiff's] cost of insurance exceeded the rates permitted under the [contract]" and in paragraph forty-eight that "[Protective Life's] explanation as to why [the plaintiff's] life insurance account was not performing in accordance with [the plaintiff's] expectation was that the rate of return on the policy was less favorable than had been illustrated." These allegations, even construed broadly, are insufficient to constitute fraud. Additionally, the plaintiff has failed to set forth a factual predicate to establish that Gulino fraudulently concealed the existence of the plaintiff's causes of action to delay the filing of this case. See id., 517 ("[t]here is no allegation, nor is there a factual predicate, to establish that the defendant had fraudulently concealed the existence of the plaintiff's causes of action with the intention of delaying the plaintiff in filing the action" [emphasis in original]). Specifically, the plaintiff has not alleged or provided evidence that Gulino was aware of any facts necessary to establish the cause of action; that he intentionally concealed those facts from the plaintiff; and that Gulino concealed facts to delay the plaintiff in filing his case. Hence, Gulino's motion for summary judgment on the counts of negligent misrepresentation (eighth count) and breach of fiduciary duty (tenth count) is granted.
The plaintiff argues that the holding of Fenn v. Yale University, 283 F.Sup.2d 615 (D.Conn. 2003), should apply to this case. In Fenn, the court held that "[a]lthough the fraudulent concealment tolling statute [§ 52-595] generally requires an affirmative act of concealment beyond mere silence, non-disclosures are sufficient where, as here, the defendant is under a fiduciary duty to disclose material facts." Id., 636. Nevertheless, the court found fraudulent concealment based upon affirmative acts of concealment by the fiduciary. Id., 637. Allegations and evidence of such affirmative acts are not present in the instant case.
B.
Protective Life and the plaintiff filed cross motions for summary judgment. Protective Life moves for summary judgment on the grounds that the counts against it are barred by upon the statutes of limitations. The contract claims in the first count are governed by the six-year statute of limitations of General Statutes § 52-576(a). The tort claims of the second, third, fourth and sixth counts are all governed by § 52-577 with its three-year bar. See Ahern v. Kappalumakkel, supra, 97 Conn.App. 192 n. 3; see also Certain Underwriters at Lloyd's, London v. Cooperman, 289 Conn. 383, 408, 957 A.2d 836 (2008) ("statute of limitations for claims of conversion and statutory theft is the three year period applicable to torts, set forth in General Statutes § 52-577"). The fifth count alleging a CUTPA violation likewise has a three-year limitation as set forth in § 42-110g(f). Finally, the equitable claim of unjust enrichment in the seventh count has the same three-year limitation. See Dowling v. Finley Associates, Inc., 49 Conn.App. 330, 335, 714 A.2d 694 ("[w]here a party seeks equitable relief pursuant to a cause of action that also would allow that party to seek legal relief, concurrent legal and equitable jurisdiction exists, and the statute of limitations that would be applicable to bar the legal claim also applies to bar the equitable claim"), rev'd on other grounds, 248 Conn. 364, 727 A.2d 1245 (1999).
Section 52-576(a), in relevant part, 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 . . ."
"The law concerning the time when a breach of contract action accrues is well settled. [I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted . . . Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action." (Citations omitted; emphasis in original; internal quotation marks omitted.) Tolbert v. Connecticut General Life Ins. Co., CT Page 23152 257 Conn. 118, 124-25, 778 A.2d 1 (2001).
As stated above, it is undisputed that the plaintiff took out the policy in 1992 — even if there may be issues about the specific date it was obtained in September or about an amendment in October. Thus, the period for filing suit began in 1992 and expired in 1998. Because the plaintiff did not commence this action until May 26, 2009, the contract counts are barred by § 52-576(a). Furthermore, the tort counts were stale even sooner as they are subject to three-year statutes of limitations. See Piteo v. Gottier, supra, 112 Conn.App. 445-46 ("[w]hen conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed" [internal quotation marks omitted]).
Admittedly, there are questions of fact concerning what the original policy documents may have been. See footnote 5 of this memorandum of decision. To the extent a resolution of that dispute is necessary, the motions for summary judgment would have to be denied, but that dispute does not control the outcome of this suit.
The plaintiff argues, however, that a continuing course of conduct tolled the statutes of limitations. As stated above, a continuing course of conduct is inapplicable to a violation of CUTPA. See Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn.App. 514. As to the remaining counts, the court cannot find that a special relationship existed between the plaintiff and Protective Life.
"It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . we have recognized that not all business relationships implicate the duty of a fiduciary . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary." (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 640, 804 A.2d 180 (2002). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 153, 819 A.2d 216 (2003). "The law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., CT Page 23153 255 Conn. 20, 41, 761 A.2d 1268 (2000).
"Jurisdictions are split on the issue of whether an insurer owes a fiduciary duty to its insured; our case law is silent on this issue except for a single pronouncement in Harlach v. Metropolitan Property Liability Ins. Co., 221 Conn. 185, 190, 602 A.2d 1007 (1992), where we characterized the relationship between the insurer and insured as `commercial,' at least in the context of purchasing a policy." Macomber v. Travelers Property Casualty Corp., supra, 261 Conn. 641.
In the present case, the evidence indicates that the relationship between Protective Life and the plaintiff was commercial centering around the purchase and maintenance of a policy. There are no allegations or facts that demonstrate that the relationship between the plaintiff and Protective Life was one of unique trust and confidence. Therefore, the court finds that Protective Life had no fiduciary duty to the plaintiff and there was no continuing course of conduct based upon a special relationship between the parties.
As to later wrongful conduct related to the prior act, the court does not agree with the plaintiff's argument that each premium payment or the lapsing of the policy constituted later wrongful conduct. In New York Life Ins. Co. v. Statham, 93 U.S. 24, 23 L.Ed. 789 (1876), the United States Supreme Court noted, "It has been contended that the payment of each premium is the consideration for insurance during the next following year, as in fire policies. But the position is untenable. It often happens that the assured pays the entire premium in advance, or in five, ten or twenty annual installments. Such installments are clearly not intended as the consideration for the respective years in which they are paid; for, after they are all paid, the policy stands good for the balance of the life insured, without any further payment. Each installment is, in fact, part consideration of the entire insurance for life. It is the same thing, where the annual premiums are spread over the whole life. The value of assurance for one year of a man's life when he is young, strong and healthy, is manifestly not the same as when he is old and decrepit. There is no proper relation between the annual premium and the risk of assurance for the year in which it is paid. This idea of assurance from year to year is the suggestion of ingenious counsel. The annual premiums are an annuity, the present value of which is calculated to correspond with the present value of the amount assured, a reasonable percentage being added to the premiums to cover expenses and contingencies. The whole premiums are balanced against the whole insurance." See also McMaster v. New York Life Ins. Co., 183 U.S. 25, 35, 22 S.Ct. 10, 46 L.Ed. 64 (1901) ("[t]he contracts were not assurances for a single year, with the privilege of renewal from year to year on payment of stipulated premiums, but were entire contracts for life, subject to forfeiture by failure to perform the condition subsequent of payment as provided"); Jones v. GE Life Annuity Assurance Co., United States District Court, Docket No. 1:03CV241, 2004 U.S. Dist. LEXIS 5297 *8-*9 (M.D.N.C. March 17, 2004) ("[a]bsent an agreement to the contrary, a life insurance contract is to be interpreted as an entire contract for the life of the policy, and not a divisible contract subject to continuous breach").
The court also disagrees with the plaintiff's argument that even if the statutes of limitations apply the court should still consider the past six years of alleged wrongful conduct and the lapse of the policy. The plaintiff alleges that Protective Life and its predecessor charged a higher cost of insurance based on the plaintiff's premium rating from the beginning. This is the crux of the issue; the alleged excessive cost of insurance was consistently charged through the years and eventually led to the lapse.
The appellants in New York Life Ins. Co. v. Statham cited Worthington v. Charter Oak Life Ins. Co., 41 Conn. 372 (1874), for the proposition that a life insurance policy "consists of two parts, and is divisible. The payment of the first premium accomplished two things: First, it effected an insurance upon the life of the applicant for one year, which is, so far as he is concerned, an executed contract. Should he die within that specific period, the company absolutely covenants to pay the amount of the policy. Second, it purchased the option of his making the stipulated payments, and thus continuing the insurance from year to year, and is in this respect an executory contract." New York Life Ins. Co. v. Statham, supra, 93 U.S. 24. Nonetheless, Worthington has never been cited for the proposition that each yearly payment constitutes a new contract and, of course, the United States Supreme Court strongly rejected such an interpretation in Statham more than 125 years ago.
Ultimately, this court need not analyze if there were related continuing wrongful acts because this analysis is not required. As discussed above, the plaintiff inquired about his policy in 2003 and Protective Life responded on February 28, 2003 that "this policy would terminate in 2008 unless a higher premium were paid." Because the plaintiff was or should have been aware of the harm, the continuing course of conduct does not apply. See Rosato v. Mascardo, supra, 82 Conn.App. 405 ("the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm").
See footnote 11 of this memorandum of decision.
Finally, the plaintiff argues that fraudulent concealment should toll the applicable statutes of limitations. As noted above, this argument is irrelevant because the plaintiff discovered his harm and as the plaintiff's allegations are insufficient to constitute fraud. Moreover, he has failed to set forth facts necessary to establish that Protective Life fraudulently concealed the existence of his causes of action to delay the filing of this case. See Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn. 517. Specifically, he has made no showing that Protective Life was aware of any facts necessary to establish the causes of action; that Protective Life intentionally concealed those facts from the plaintiff; and that Protective Life concealed facts to delay the plaintiff in filing his case. Therefore, because the plaintiff has failed to substantiate his claim by showing that there is a genuine issue of material fact that Protective Life fraudulently concealed his causes of action; see Cadlerock Joint Venture II, L.P. v. Milazzo, supra, 287 Conn. 390; Protective Life's motion for summary judgment is granted.
The plaintiff alleges in his amended complaint in paragraph forty-eight that Protective Life explained that the policy was not performing to his expectation because the rate of return was less favorable than what had been illustrated. The plaintiff points to no evidence to support this allegation. On the contrary, the plaintiff avers in his deposition on pages 195-96 that the reason Protective Life gave for the policy lapsing was that he "didn't have enough money to fund their investments."
III
In summary, the defendants' motions for summary judgment are granted and the plaintiff's motion for summary judgment is denied.
The court declines to decide whether the case should be dismissed as to the proposed class until the issue has been properly briefed and argued.