Opinion
No. CV03 0283499-S
June 8, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #109
I PROCEDURAL HISTORY
On February 10, 2003, the plaintiff, James Green (Green), filed a three-count complaint against the defendants, Royal Indemnity Company (Royal) and David M. Fishbein d/b/a David M. Fishbein Agency (Fishbein). In counts one and three, Green alleges that Royal, in violation of the insurance contract that it had issued to Green, failed to pay on a theft claim, which Green had submitted. In count two, Green alleges that Fishbein, who was authorized by Royal to issue insurance policies, negligently and carelessly made representations to induce Green to purchase additional insurance covering his jewelry, which Green alleges was stolen, as Fishbein knew or should have known such representations were untrue.
Specifically, the plaintiff alleges the following facts: On or before January 24, 2000, Green applied for and was issued a homeowner's insurance policy by Fishbein, insuring Green's real estate at 8 Hinman Street, Meriden, Connecticut, against casualty and other loss. After the policy was in effect, the plaintiff purchased certain jewelry and informed Fishbein that he wished to protect the jewelry against loss or theft. On June 24, 2001, Green purchased insurance from Royal, insuring his jewelry in reliance upon certain representations made by Fishbein. On November 30, 2001, while the policy was in effect, the jewelry was stolen from Green's automobile, which loss was covered by the terms of the insurance policy. Green reported the theft to Royal and filed a claim for the value of the jewelry. Royal has refused to pay the claim on the grounds that Green failed to produce certain information. The reasonable value of the stolen jewelry was $22,600. Despite Green's demands, Royal has neglected and refused to pay Green's loss in accordance with the terms of the insurance policy.
Fishbein filed an answer and special defense on April 10, 2003. Royal filed an answer and special defenses on April 17, 2003. In its first special defense, Royal alleges that Green's claim is barred because he breached the insurance contract by failing to produce records and documents requested by Royal and refusing to answer questions at his examination under oath. In its second special defense, Royal alleges that Green's claim is barred because he failed to comply with the policy condition that an action by an insured commence within one year after the date of loss. In its third special defense, Royal alleges that the insurance policy issued to Green is void because he intentionally misrepresented material facts, engaged in fraudulent conduct or made false statements relating to the insurance, all of which would allegedly violate the policy.
On September 19, 2003, Royal filed a motion for summary judgment on the grounds that (1) Green initiated this action more than one year after the loss alleged in his claim in violation of the one-year suit limitation condition of the insurance contract that he purchased from Royal and (2) Green has failed to comply with the conditions of the policy that require the production of documents and the submission to an examination under oath. In support of its motion, Royal has submitted the following: (1) a memorandum of law; (2) a sworn affidavit from Joseph Mistretta, the vice president of Royal, along with a certified copy of the homeowner's insurance policy issued by Royal to Green; and (3) a certified copy of Green's examination under oath, conducted on January 29, 2002.
On October 8, 2003, Green filed a supplemental memorandum of law in opposition to Royal's motion for summary judgment. The primary thrust of Green's argument is that he had brought a timely cause of action in this matter against Royal SunAlliance Personal Insurance Company, but withdrew the action after learning that Royal SunAlliance Personal Insurance Company did not exist and that Royal Indemnity Company was the proper defendant. See Green v. Royal SunAlliance Personal Ins. Co., Superior Court, judicial district of New. Haven at Meriden, Docket No. CV 020280169. Green argues that Royal is equitably estopped from asserting the one-year statute of limitations defense under the policy because Royal and its attorneys induced Green to believe that the defendant insurance company's name was Royal SunAlliance, thereby establishing a basis for Green's reliance. In support of his memorandum of law, Green has submitted uncertified copies of correspondence from Royal's attorney, portions of pleadings from Green's prior action and other uncertified copies of documents as evidence that Royal induced Green to believe that Royal SunAlliance was the proper defendant.
Although this court does not generally consider uncertified copies of documents to which no affidavit exists attesting to their authenticity when deciding a motion for summary judgment; Shapiro v. Hillside Village Condominium Ass'n, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274597 (March 7, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 262, 263 n. 1); this court will consider the evidence submitted in this case because neither party has objected to the other's use of uncertified copies of documentary evidence. Nargi v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 98 0419562 (February 4, 2004, Licari, J.).
On October 10, 2003, Royal filed a reply to the plaintiff's supplemental memorandum of law in opposition to the defendant's motion for summary judgment, attached to which is an uncertified copy of a letter from Royal's attorney to Green's attorney, dated January 25, 2002. On November 3, 2003, Green filed a memorandum of law in opposition to Royal's motion for summary judgment, attached to which are the same exhibits that are attached to Green's supplemental memorandum of law in opposition. On November 4, 2003, Green filed an affidavit, which is dated October 29, 2003. Royal filed another reply memorandum of law on November 24, 2003. The court heard oral argument on March 2, 2004.
See footnote 1 of this memorandum.
It is noted that on November 4, 2003, Green filed a motion for permission to amend his complaint. This court found, however, that it would not address this issue while the present motion for summary judgment is pending.
II DISCUSSION
"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." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 72 U.S.L.W. 3566 (March 8, 2004). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "It is not enough, however, 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 a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Id., 252-53.
"The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn. App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
A. One-year Suit Limitation
Royal argues in support of its motion for summary judgment that Green's action against Royal is barred by the one-year suit limitation condition in the policy, which requires that any suit on the policy be asserted within one year from the date of loss. Royal contends that Green's action was commenced by service on February 4, 2003, more than one year from the alleged date of loss, November 30, 2001.
1. Estoppel
Green argues in opposition that "Royal is estopped from taking an inconsistent position as to its true name." (Plaintiff's Memorandum of Law in Opposition to the Defendant's Motion for Summary Judgment, dated November 3, 2003, p. 4.) Green states that he "has submitted correspondence from [Royal] and defense counsel, as well as pleadings addressed to [Green] as evidence that induced [him] to believe that the defendant insurance company's name was Royal SunAlliance, thus establishing a basis for [Green's] reliance." (Plaintiff's Memorandum, p. 5.) Green argues that Royal's "conduct, in sending the correspondence and other documents with the name of the responsible insurance carrier listed as Royal SunAlliance, induced . . . [Green] to believe he had timely sued the right party." (Plaintiff's Memorandum, p. 5.) Accordingly, Green contends that issues of fact exist regarding Royal's misrepresentation of the proper name of the insurance carrier, Green's reliance on the misrepresentation and whether Royal and/or Royal SunAlliance committed wrongdoing by waiting until one year after Green's loss before notifying him that his claim was pursued under the wrong company name.
Royal argues in response that Green's estoppel arguments were not pleaded in the complaint and cannot be entertained for the first time in opposition to Royal's motion for summary judgment. In the alternative, Royal argues that Green's estoppel arguments are unfounded because he "points to no document or other representation made by Royal that the policy in question was issued by any company other than the Royal Indemnity Company." (Defendant's Reply Memorandum of Law, dated November 21, 2003, p. 4.) Royal argues that Green had "received a copy of the policy listing the issuing company as `Royal Indemnity Company' on January 25, 2002, accompanied by a two-page letter that refers to the `Royal Indemnity Company' no fewer than seven times . . . [Green] first initiated suit on March 4, 2002." (Defendant's Reply Memorandum, p. 5.)
The insurance policy in this case provides that "[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss." (Emphasis added.) (Defendant's Motion for Summary Judgment, Exhibit 1; Affidavit of Joseph Mistretta, Exhibit A: Homeowners 3 Special Form, § I(8), p. 11.) "Such a provision in a contract of insurance is valid and binding upon the parties." Chichester v. New Hampshire Fire Ins. Co., 74 Conn. 510, 513, 51 A. 545 (1902); Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979). This provision requiring suit to be brought within one year does not operate as a statute of limitations. Chichester v. New Hampshire Fire Ins. Co., supra, 513; Monteiro v. American Home Assurance Co., supra, 283. Instead, "[t]his condition is a part of the contract so that it controls the rights of the parties under the contract and, hence, such rights must be governed by the rules of law applicable to contracts." Monteiro v. American Home Assurance Co., supra, 283.
"The Connecticut Supreme Court has held that an insured must comply with a contractual limitation on suit in order to maintain an action unless there exists a valid excuse for nonperformance. Monteiro v. American Home Assurance Co., supra, [177 Conn.] 283. Such excuses include: (1) impossibility of performance under the law of contracts; (2) waiver by the insurer; or (3) conduct engaged in by the insurer constituting an estoppel to the assertion of nonperformance. Vincent v. Mutual Reserve Fund Life Assn., 74 Conn. 684, 686, 51 A. 1066 (1902); Chichester v. New Hampshire Fire Ins. Co., supra, [74 Conn.] 513." Maher v. Connecticut Insurance Placement Facility, 40 Conn. Sup. 299, 303-04, 494 A.2d 631 (1985). In the present case, Green argues that his failure to file suit against Royal within one year from the date of loss is excused by the third doctrine listed above, sounding in estoppel.
"The doctrine of equitable estoppel or estoppel in pais does [not] need to be specially pleaded." Lovely v. Middlesex Mutual Assurance Co., Superior Court, judicial district of Litchfield, Docket No. CV 94 0065834 (March 22, 1995, Pickett, J.), citing Allied Grocers Cooperative, Inc. v. Caplan, 30 Conn. App. 274, 278, 620 A.2d 165 (1993). "[T]he rule that requires an estoppel to be specially pleaded . . . is archaic . . . and has not been the law for over a century." (Citation omitted.) Allied Grocers Cooperative, Inc. v. Caplan, supra, 278. Therefore the court will consider Green's argument that Royal is estopped from asserting the time limitation contained within the policy, even though Green did not specifically plead estoppel.
"[A]ny claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 699, 590 A.2d 957 (1991). "It is the burden of the party asserting a claim of estoppel to establish the existence of the elements essential to estoppel and whether that burden has been satisfied in a particular case is an issue of fact." (Citation omitted.) Id. "Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 385-86, 673 A.2d 77 (1996).
"An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party." Herbert S. Newman Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 768, 674 A.2d 1313 (1996). "[T]he principle of equitable estoppel is ordinarily invoked in cases where the defendant misrepresented the length of the limitations period or in some way lulled the plaintiff into believing that it was not necessary for him to commence litigation. Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 50 (2d Cir. 1985); see Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)." (Internal quotation marks omitted.) Scalise v. American Employers, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0158687 (May 24, 2000, Nadeau, J.) ( 27 Conn. L. Rptr. 324, 328).
In the present case, Royal has submitted a copy of the insurance policy in support of its motion for summary judgment. The insurance policy provides that "[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss." (Emphasis added.) (Defendant's Motion for Summary Judgment, Exhibit 1: Affidavit of Joseph Mistretta, Exhibit A: Homeowners 3 Special Form, § I(8), p. 11.) It is undisputed that the date of loss in this case was November 30, 2001. The marshal's return of service indicates that the defendants were served on February 4, 2003, which is more than one year after the date of loss.
The record submitted to the court reveals a number of important items of evidence. The "coverage summary" page of Green's insurance policy provides the name of the entity that issued the policy, stating in relevant part: "Issued By: Royal Indemnity Company." (Defendant's Motion for Summary Judgment, Exhibit 1: Affidavit of Joseph Mistretta, Exhibit A: Coverage Summary, p. 1.) Additionally, in the letter from Royal's attorney to Green's attorney, dated January 25, 2002, Royal's attorney wrote: "In accordance with your telephone request, we are enclosing a copy of a certified copy of the policy which Royal Indemnity Company issued to your client." (Emphasis added.) (Defendant's Reply Memorandum of Law, dated October 9, 2003, Exhibit A: Letter, dated January 25, 2002, p. 1.) This letter was dated approximately ten months before the expiration of the one-year suit limitation under the policy. Further, the letter from the vice president of multi-line claims of Royal SunAlliance to Green's attorney, dated February 21, 2002, explicitly states on two occasions that Royal was the issuing entity: (1) "[y]ou are also aware that the policy issued by Royal Indemnity Company to your client, James Green, obligates him to submit to examination under oath . . ." (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 1); and (2) "[t]he policy issued by Royal Indemnity Company to your client further obligates him . . ." (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 2). The letter also references Royal on six other occasions.
It would appear from the court's review of the letter head of this letter that Royal Indemnity Company was one of numerous corporate subsidiaries of Royal SunAlliance.
The letter provides: (1) "[d]uring the course of the January 29, 2002 examination under oath of Mr. Green, Attorney Lemega, on behalf of Royal Indemnity Company, posed the following questions to your client . . ." (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 1); (2) "[b]y letter dated January 14, 2002, Attorney Lemega, on behalf of Royal Indemnity Company, requested that Mr. Green bring with him to his January 29, 2002 examination" (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 3); (3) "[t]he Royal Indemnity Company has made a good faith effort to attempt to resolve the theft claim . . ." (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 4); (4) "enable Royal Indemnity Company to ask whatever questions might be appropriate . . ." (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 4); (5) "requested by Mr. Lemega on behalf of Royal Indemnity Company constitutes . . ." (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 4); and (6) "Royal Indemnity Company will decline to make any payment to Mr. Green . . ." (Plaintiff's Memorandum, Exhibit F: Letter, dated February 21, 2002, p. 4).
In opposition to the motion for summary judgment, Green has submitted a notification of insurance coverage. The notification states: "ROYAL SUNALLIANCE . . . PERSONAL LINES . . . MADE EASY. Thank you for placing your insurance with us." (Plaintiff's Memorandum, Exhibit A: Notification of Insurance Coverage, p. 1.) The notification further states: "IMPORTANT NOTICE TO ALL ROYAL SUNALLIANCE POLICYHOLDERS." (Plaintiff's Memorandum, Exhibit A: Notification of Insurance Coverage, p. 2.) Green has also submitted a letter from Royal's attorney to Green, dated January 14, 2002, in which Royal's attorney referred to "Royal SunAlliance" five times.
The letter provides: (1) "Royal SunAlliance Policy No. RKG6155EB006" (Plaintiff's Memorandum, Exhibit B: Letter, dated January 14, 2002, p. 1); (2) "Royal SunAlliance has retained this office to represent its interests . . ." (Plaintiff's Memorandum, Exhibit B: Letter, dated January 14, 2002, p. 1); (3) "The examination under oath provisions of your policy with Royal SunAlliance permit us to ask you questions . . ." (Plaintiff's Memorandum, Exhibit B: Letter, dated January 14, 2002, p. 1); (4) "Our purpose will be to elicit the information required so that Royal SunAlliance can efficiently adjust your claim" (Plaintiff's Memorandum, Exhibit B: Letter, dated January 14, 2002, p. 1); and (5) "Your policy with Royal SunAlliance also requires that you provide us with documentation relevant to your claim" (Plaintiff's Memorandum, Exhibit B: Letter, dated January 14, 2002, p. 1).
Ordinarily, the issue of estoppel raises questions of fact that are decided by the trier of fact. See Middlesex Mutual Assurance Co., v. Walsh, supra, 218 Conn. 699; Lovely v. Middlesex Mutual Assurance Co., supra, Superior Court, Docket No. CV 94 0065834. In this case, construing the evidence in a light most favorable to Green, a genuine issue of material fact exists as to whether Royal's actions induced Green to reasonably believe that the defendant insurance company's name was Royal SunAlliance, not Royal Indemnity Company. This court cannot say, as a matter of law, that issues presented by Green do not constitute estoppel. "The issue of whether the facts submitted constitute estoppel . . . is not for the court to decide, but is left to the trier of fact." Lovely v. Middlesex Mutual Assurance Co., supra, Superior Court, Docket No. CV 94 0065834; see also Middlesex Mutual Assurance Co., v. Walsh, supra, 699.
"On a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982)." Lovely v. Middlesex Mutual Assurance Co., supra, Superior Court, Docket No. CV 94 0065834. Green has sufficiently presented evidence that a genuine issue of material fact exists on the question of estoppel.
This court finds that because issues of fact remain as to Green's argument regarding estoppel, the court need not address Green's argument concerning bad faith.
B. Failure to Cooperate
Royal next argues in support of its motion for summary judgment that Green has forfeited his rights under the policy because he failed to respond to questions that were posed to him at his examination under oath and he failed to produce certain documents that Royal had requested. Royal contends that these failures violated explicit condition precedents in the policy and bar coverage. Green argues in response that the questions that were posed to him at his examination were irrelevant to his claim. Additionally, Green contends that the questions and the requests for production were not reasonably required for the prosecution of his claim.
A review of the transcript of Green's deposition, submitted by Royal in support of its motion for summary judgment, indicates that Green answered many questions asked of him, yet refused to answer numerous other questions. "`In determining whether a condition to co-operate has been broken, we are dealing with contract rights, and if there has been a breach, prejudice need not appear . . . The reason why immaterial and unsubstantial failures of an assured do not constitute a breach is because they are not included within the fair intendment of the requirement that the assured co-operate, and lack of prejudice to the insurer from such failure is a test which usually determines that a failure is of that nature.' (Citation omitted.) Arton v. Liberty Mutual Ins. Co., [ 163 Conn. 127, 133, 302 A.2d 284 (1972)], citing Curran v. Connecticut Indemnity Co., [ 127 Conn. 692, 696, 20 A.2d 87 (1941)]. Furthermore, `[t]he issue of whether there was a lack of cooperation cannot be decided by determining whether there was an abstract conformity to ideal conduct on the part of the insured. It is a pragmatic question to be determined in the light of the particular facts and circumstances brought out in the particular case.' O'Leary v. Lumbermen's Mutual Casualty Co., [ 178 Conn. 32, 38-39, 420 A.2d 888 (1979)]. Whether a contract of insurance has been breached by an assured is `a question of fact to be determined upon the facts proven in the trial of the case and the law applicable thereto.' Beach v. Utica Mutual Insurance Co., 8 Conn. Sup. 468, 470." Nelson v. Peerless Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 93 0345800 (October 14, 1994, Fracasse, J.). Furthermore, "the lack of cooperation by the insured must be substantial or material." Kovac v. Standard Fire Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 0301753 (October 14, 1994, Fuller, J.); see also O'Leary v. Lumbermen's Mutual Casualty Co., supra, 38.
In the present case, Royal has failed to establish that there are no genuine issues of material fact as to whether Green has substantially breached the cooperation provision of the policy. See Nelson v. Peerless Ins. Co., supra, Superior Court, Docket No. CV 93 0345800. Moreover, this court finds that genuine issues of material fact remain as to whether Green unreasonably failed to furnish information to Royal and whether all of the information requested was relevant to the claimed loss. See Kovac v. Standard Fire Ins. Co., supra, Superior Court, Docket No. CV 93 0301753.
III CONCLUSION
For the foregoing reasons, the court denies Royal's motion for summary judgment. So ordered.
BY THE COURT
Peter Emmett Wiese, Judge