Opinion
No. CV08-5014680
February 24, 2011
MEMORANDUM OF DECISION
On March 14, 2006, while operating his motor vehicle in Stamford, the plaintiff, Alvaro Garcia, was involved in a motor vehicle accident with a vehicle owned and operated by the named defendant, Gary C. Morgan. Morgan attempted to flee the scene but was later arrested. On May 10, 2007, he was convicted of failure to insure his vehicle, in violation of General Statutes § 38a-371, and evading responsibility, in violation of General Statutes § 14-224(b). For the crime of evading responsibility he was sentenced to one year imprisonment, execution suspended, and three years probation. For the offense of failure to insure his vehicle Morgan was unconditionally discharged.
In March 2008, the plaintiff brought a two-count action against Morgan for personal injuries. The first count alleges that Morgan was negligent. The second count alleges that he was reckless. The marshal's return reflects that he was unable to locate Morgan and made substitute service on the Commissioner of Motor Vehicles pursuant to General Statutes § 52-63.
Morgan never appeared and the action lay dormant until 2010. On March 12, 2010, the plaintiff impleaded the defendant Progressive Casualty Insurance Company (Progressive) into the action and amended his complaint by adding a third count seeking uninsured motorist benefits. Progressive has moved for summary judgment on the third count on the basis that the plaintiff failed to bring suit against Progressive within a three-year limitation period contained in the insurance policy. The plaintiff claims that the three-year limitations period is tolled pursuant to the policy and § 38-336(g)(2) because he exercised due diligence, through his attorney, to ascertain the insurance status of Morgan, and because he has never received a written denial of coverage from Progressive. The court holds that the three-year period in the policy is not tolled and that this action is time barred.
Just as "[s]ummary judgment may be granted where the claim is barred by the statute of limitations"; Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996); so too the Supreme Court has upheld the granting of summary judgment where an uninsured motorist claim has been brought beyond a contractual time limit. Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 600, 999 A.2d 741 (2010); Tracy v. Allstate Ins. Co., 268 Conn. 281, 283, 842 A.2d 1123 (2004); Hotkowski v. Aetna Life Casualty Co., 224 Conn. 145, 152, 617 A.2d 451 (1992).
The uninsured motorist part of the plaintiff's insurance policy with Progressive provides: "Any legal action against us for uninsured motorist coverage must be brought within three (3) years of the date of accident. However, if the person responsible for the accident becomes uninsured because that person's liability insurance company becomes insolvent or denies coverage at any time later than two (2) years after the accident, then an insured person shall have one (1) additional year from the date of that person's receipt of written notice of such insolvency or denial of coverage to file any legal action against us for uninsured motorist benefits." (Emphasis in original.) The plaintiff does not contest that this provision is authorized by General Statutes § 38a-336(g). There is no dispute that the plaintiff did not bring suit against Progressive within three years of the date of the accident as required by the policy.
General Statutes § 38a-336(g) provides: "(1) No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.
"(2) Notwithstanding the provisions of subdivision (1) of this subsection, in the case of an uninsured motorist claim, if the motor vehicle of a tortfeasor is an uninsured motor vehicle because the automobile liability insurance company of such tortfeasor becomes insolvent or denies coverage, no insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured motorist provisions of an automobile liability insurance policy to a period of less than one year from the date of receipt by the insured of written notice of such insolvency of, or denial of coverage by, such automobile liability insurance company."
With his memorandum in opposition to the motion for summary judgment, the plaintiff submitted an affidavit in which he stated: "I did not know of Gary C. Morgan's lack of automobile insurance coverage at any time and I did not receive notice from any insurance carrier denying coverage to Gary C. Morgan." At a hearing on the motion for summary judgment, the plaintiff adduced the following facts without objection. Shortly after the accident, the plaintiff obtained a copy of the police report which stated that Morgan had been arrested, but did not state the violations or crimes for which he was arrested. On February 18, 2008, "PublicData.Com" provided the plaintiff with a report stating that Morgan had been arrested on April 12, 2006 for failure to insure a motor vehicle in violation of General Statutes § 38a-371, among other violations and crimes. According to the PublicData.Com report, the charge of failure to insure a motor vehicle was nolled. On February 18, 2008, the plaintiff's attorney wrote to the prosecutor stating, inter alia: "The Statute of Limitations is about to run and I am attempting to properly prepare the lawsuit against Mr. Morgan. We have been trying to obtain a copy of the whole police accident report, but were told the accident is still under investigation. It is my understanding from the Court website that Verdict entered on May 10, 2007 . . . Also, please advise as to who Mr. Morgan's motor vehicle insurance carrier is. Most importantly, please provide a full copy of the Police Accident Report, including the narrative portion." (Emphasis in original.)
Both parties adduced evidence at the hearing on the motion for summary judgment, acquiescing in this unorthodox procedure.
In fact, Morgan was found guilty of that charge on May 10, 2007.
With its reply to the plaintiff's memorandum, Progressive submitted a printout from the State of Connecticut Judicial Branch website that reflects Morgan's May 10, 2007 conviction for failure to insure his vehicle in violation of General Statutes § 38a-371. At a hearing on the motion for summary judgment, Progressive adduced the following facts without objection. On February 18, 2008, the plaintiff's attorney wrote to Progressive stating: "As you are aware, this office represents Alvaro Garcia in connection with serious physical injuries suffered by him as a result of a motor vehicle accident, which occurred on March 14, 2006. This letter shall constitute notice of my client's claim, pursuant to the underinsured/uninsured provision of your insured's automobile policy. As soon as possible, please contact me." On March 14, 2008, the plaintiff's attorney wrote to Progressive providing additional information and documents and offering to settle the claim for $50,000.00. In addition, the plaintiff's attorney enclosed a copy of the plaintiff's lawsuit against Morgan and stated: "Also please be advised that we will be bringing Progressive into the lawsuit in the near future."
The plaintiff's policy did not contain an arbitration provision. Therefore, this letter did not toll the limitations period. See Tufaro v. Allstate Property Casualty Ins. Co., Superior Court, judicial district of Fairfield, Docket No. 085014934 (May 14, 2010) ("a claim for arbitration is not a `legal action' within the terms of the insurance policy and, therefore, the plaintiff failed to file a legal action against the defendant within three years of the accident, as required by the insurance policy").
"We begin our analysis with the general principles governing the construction of insurance policies. 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 . . . Although [s]tandardized contracts of insurance continue to be prime examples of contracts of adhesion . . ., that factor would bear on our construction of the provision at issue only if the insurance contract were ambiguous . . . There is, however, no ambiguity in the time limit provision at issue in the present case." (Citations omitted; internal quotation marks omitted.) Voris v. Middlesex Mutual Assurance Co., supra, 297 Conn. 595-96.
The policy unambiguously provides: "Any legal action against us for uninsured motorist coverage must be brought within three (3) years of the date of accident." (Emphasis in original.) The action against Progressive was not brought within three years of the accident. The savings provision of the plaintiff's policy is not activated because a claimant never receives notice of denial of coverage from an insurer an owner or operator never had. Rather, the policy provides that "if the person responsible for the accident becomes uninsured because that person's liability insurance company becomes insolvent or denies coverage at any time later than two (2) years after the accident, then an insured person shall have one (1) additional year from the date of that person's receipt of written notice of such insolvency or denial of coverage to file any legal action against [the insurer] for uninsured motorist benefits." (Emphasis added.) "Become" is defined as "to come to be"; Merriam-Webster's Collegiate Dictionary (10th Ed. 2000); "[t]o pass from one state to another; to enter into some state or condition." Black's Law Dictionary (Rev'd 4th Ed.); see also Webster's New International Dictionary. "`Become' looks to the future . . ." Peterson v. Pennsylvania Life Ins. Co., 265 Wis.2d 768, 778, 669 N.W.2d 151, rev. denied, 266 Wis.2d 62, 671 N.W.2d 849 (2003). Thus, if subsequent to an accident, the tortfeasor becomes uninsured because his liability insurance company becomes insolvent or denies coverage, the insured has an additional year from the date of notice thereof to file an action for uninsured motorist benefits.
See also Farr v. Fruehauf Corp., 199 Neb. 349, 352, 258 N.W.2d 821 (1977) ("To `become' means to pass from one state to another, to enter into some state or condition by a change from another state, or by assuming or receiving new properties or qualities, additional matter, or a new connection"); Matter of Birdsall, 22 Misc. 180, 196, 49 N.Y.S. 450 (1897), affd 43 App.Div. 624, 60 N.Y.S. 1133 (1899) ("[T]he verbs `shall' and `become' and the adverb `when,' as they are employed in the act, clearly refer to future, and not to past, events"); People v. Cook, 96 Mich. 368, 373, 55 N.W. 980 (1893) ("The clause under which the information was filed makes the offense complete when the solicitation is of females to become prostitutes. Some force must be given to the word `become'; and it is evident that the legislature did not intend to make the offense complete by the mere soliciting of a female who was already a prostitute, and in a house of ill fame, to go from that place into another house of like character"); see also Heer v. State Farm Fire Casualty Company, United States District Court, Civil No. 04-6211-HO (D.Or. August 25, 2004) (property became uninsured because of non-renewal). State v. Laundy, 103 Or. 443, 476, 204 P. 958, 963 (1922) (one who is a member of a particular organization at the time of the enactment of a statute making it a felony to "become" a member of such an organization, cannot be said to be within the purview of the act).
That did not happen here. Morgan was never insured. Therefore Morgan would never "become uninsured." "[T]he person responsible for the accident" did not become "uninsured because that person's liability insurance company . . . [denied] coverage . . ." Neither Morgan nor the vehicle had a liability insurance company. To accept the plaintiff's argument would nullify the limitations period in such situations. "In giving meaning to the language of a contract, we presume that the parties did not intend to create an absurd result." New England Savings Bank v. FTN Properties Ltd. Partnership, 32 Conn.App. 143, 145, 628 A.2d 30 (1993). The three-year limitations period is not tolled pursuant to the policy.
In his memorandum in opposition to the motion for summary judgment, the plaintiff cites Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 609, 767 A.2d 1202 (2001), for the proposition that "an action for uninsured motorist benefits does not accrue, and thus, the statute of limitations does not begin to run, until the plaintiff knew or should have known that the tortfeasor was uninsured." In Polizos, the issue was "when the statute of limitations under General Statutes § 52-576(a) begins to run on a claim for uninsured motorist benefits." (Emphasis added.) Id., 602. Section 52-576 is the statute of limitations that governs when an action for uninsured motorist benefits must be brought, or an arbitration claim for such benefits must be made, in the absence of a provision in the insurance policy governing that issue. The Supreme Court, affirming the decision of the Appellate Court, held "that the statute of limitations does not begin to run until the plaintiff knew or should have known that the tortfeasor was uninsured." (Emphasis added.) Id. Here, the timeliness of the plaintiff's action turns not on a statute of limitations but on a provision of the plaintiff's insurance policy authorized by a statute, § 38a-336(g). This is an important distinction made by the Appellate Court in Polizos v. Nationwide Mutual Ins. Co., CT Page 6233 54 Conn.App. 724, 730, 737 A.2d 946 (1999), and by the Supreme Court. Polizos v. Nationwide Mutual Ins. Co., supra, 255 Conn. 615-16 ("an insurance carrier, pursuant to No. 93-77 of the 1993 Public Acts, now codified at § 38a-336(g), may contract out of the six-year statutory limitations period by requiring written notice of an impending claim within a shorter period, one that the insurer itself establishes . . . Thus, [i]t is the insurer's prerogative . . ., to guard against the assertion of stale claims that could potentially arise as a consequence of our reading of § 52-576").
General Statutes § 52-576(a), then as now, provided: "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, except as provided in subsection (b) of this section."
Recent Superior Court decisions have recognized that contractual limitation periods, pursuant to § 38a-336(g), are not governed by the Supreme Court's holding in Polizos. See Martinez v. Raymond, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. 010186778 (September 2, 2005, Dooley, J.) ( 39 Conn. L. Rptr. 874); Alston v. Atlantic Auto Rentals, LLC, Superior Court, judicial district of New Haven Docket No. CV 08 5019795 (October 21, 2010, Zoarski, J.T.R.) ("The issue in Polizos was what the accrual date was for § 52-576, not the accrual date for actions that fall within the purview of § 38a-336(g)"); Lacroix v. Allstate Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 03 0 42118 (December 7, 2005, Rodriguez, J.) (holding that three-year limitations period ran from date of accident, as provided by uninsured motorist policy, where plaintiff did not benefit from tolling provision of § 38a-336(g)(2)).
Seemingly to the contrary is Lubas v. Progressive Casualty Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 06 5003162 (August 24, 2007, Rittenband, J.T.R.) ( 44 Conn. L. Rptr. 96, 97), in which the court denied the insurer's motion for summary judgment based on the failure to bring an action within a contractual three-year limitations period because it was uncertain as to whether the tortfeasor was uninsured until, in an action brought by the plaintiff against the tortfeasor, the court made that determination. However, as a leading treatise on uninsured motorist coverage, states, criticizing Lubas, "[i]t is not clear why this declaration is required in the view of the explicit language of the statute requiring suit within three years of the accident . . . C.G.S. § 38a-336(g) is not an accrual-based statute upon which the pre-statute case law was based." (Emphasis in original.) J. Berk M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage, § 3.13.2, p. 364-65 n. 94 (4th Ed. 2010).
Here, the express terms of the plaintiff's uninsured motorist policy require that an action against Progressive for uninsured motorist benefits be brought within three years of the date of the accident. Pursuant to the terms of the policy, the limitations period began to run on the date of the accident, March 14, 2006. The plaintiff failed to bring suit within three years of that date. The Supreme Court's holding in Polizos regarding the accrual of a cause of action for the purposes of § 52-576(a) is inapposite. Evidence of whether the plaintiff knew or should have known that the tortfeasor was uninsured is irrelevant. "If the result is unduly harsh, the remedy properly lies with the legislature and not this court." Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 395, 627 A.2d 1296 (1993).
In light of the court's holding, the court makes no determination as to whether there is a genuine issue of material fact as to whether the plaintiff's attorney exercised due diligence to determine whether Morgan was uninsured or whether the plaintiff knew or should have known this fact prior to the expiration of the contractual three-year limitation period.
The motion of the defendant Progressive Casualty Insurance Company for summary judgment as to the third count is granted.