Opinion
No. CV 03 0103118S
July 28, 2004
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendant, Allstate Insurance Company, has moved for summary judgment on the grounds that this action for underinsured motorist benefits was not commenced within a three-year limitations period contained in the plaintiffs' insurance policy. For the reasons set forth below, the Motion is granted.
Factual and Procedural Background
The plaintiffs, Donna and John Hodge, bring this action against their auto insurance carrier, Allstate Insurance Company, under the underinsured motorist benefits coverage of their insurance policy. The plaintiffs allege that Donna Hodge, a passenger in the vehicle driven by her husband, John Hodge, was injured when their vehicle was rear-ended by another vehicle. Because the policy limits of the negligent party were exhausted, both plaintiffs brought this underinsured motorist claim against their insurer. The accident occurred and the losses were sustained on May 21, 1999. This action was commenced by service of process on the defendant on December 2, 2003.
The first count is a claim by Donna Hodge for compensation for her injuries. The second count is a claim by John Hodge for his financial losses and loss of consortium resulting from the injuries to Donna Hodge.
The defendant has moved for summary judgment. The defendant argues that under the policy provisions this action had to be commenced within three years of the accident causing the claim. Because this action was commenced after the three-year period had run and because the plaintiffs failed to comply with any statutory tolling provisions, the claim is not valid.
The defendant has filed two memorandums of law, a certified copy of the plaintiff's insurance policy and a copy of a letter sent on behalf of the plaintiffs notifying the defendant of the underinsured motorist claim. The plaintiffs oppose summary judgment. They have filed a memorandum of law, uncertified copies of answers given by the negligent party to interrogatories and copies of unauthenticated correspondence sent by the plaintiffs' former attorney to the defendant.
The letter appears to have been sent certified mail, but is not authenticated by an affidavit. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). The plaintiffs have not contested the contents of the letter which would support written notice having been given on April 18, 2003 or, at best, April 2, 2003. The difference in dates is not material to the decision of the court.
Discussion of the Law and Ruling
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 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 . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003).
"Summary 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). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). It is appropriate where the evidence submitted "[does] not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
The underinsured motorist provisions of the plaintiff's automobile insurance policy expressly provide that "[n]o one may sue us under this coverage unless there is full compliance with all policy terms. Any legal action against Allstate must be brought within three years from the date of the accident." The three-year contractual statute of limitations is authorized by General Statutes § 38a-336(g)(1). The statute provides, in part, that
[n]o insurance company doing business in this state may limit the time within which any suit may be brought against it . . . 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 . . . not more than one hundred eighty days from the date of exhaustion of the limits of liability under all . . . automobile insurance policies applicable at the time of the accident . . .
The section "provides a vehicle for contracting out of the six year statutory limitations period by authorizing an insurer to demand written notice of an impending claim within a period that the insurer itself establishes." (Internal quotation marks omitted.) Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 335, 819 A.2d 859, cert. granted, 264 Conn. 905, 826 A.2d 179, (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004).
If the limitation period in a policy is less than three years, then the usual six-year statute of limitations applicable to insurance policies controls. See Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 820-21, 768 A.2d 950 (2001); Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 329, 335-36; see General Statutes § 52-576(a).
Therefore, the plaintiffs must have filed this action within three years of May 21, 1999, unless they have complied with the tolling provision of § 38a-336(g)(1). See Tracy v. Allstate Ins. Co., supra, 268 Conn. 281. Because it is undisputed that this action was commenced on December 2, 2003, more than three years after the date of the accident, the limitations period of the policy would bar this claim unless the plaintiffs have complied with the tolling provisions of the statute.
Section 38a-336(g)(1) provides that the three-year limitations period would be tolled if an insured notifies an insurer "prior to the expiration of the applicable limitation period, in writing, of any claim . . . [and if the insured commences] suit . . . not more than one hundred eighty days from the date of exhaustion of the limits of liability." "Three years after the date of the accident, there needs to be notice provided . . . [T]he insurance company . . . needs to be notified within three years in writing that there's the possibility that a claim will be brought for underinsured motorist coverage and then, after that notice, there needs to be action brought within 180 days of the exhaustion of the limits of liability." (Internal quotation marks omitted.) Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 329, 335.
The defendant argues that the plaintiffs have not complied with the tolling provisions. The plaintiffs have submitted no appropriate, competent, evidence that would demonstrate that there exists a genuine issue of material fact that they have taken actions to toll the limitations period. Even if the evidentiary shortcomings of the material submitted by the plaintiffs are overlooked, at best, the material may show that the defendant had knowledge of an underlying action against the tortfeasor and that the tortfeasor had minimal coverage. From that knowledge, the plaintiffs argue that the defendant should have had constructive knowledge of the potential of their claim. However the plaintiffs provide no legal support for this position.
The defendants also insured the tortfeasor who had 20/40 coverage.
The statute explicitly requires notice, in writing, of the plaintiffs' claim. "[T]he notice requirement . . . contemplates specific reference to a potential claim for underinsured motorist benefits and that a notice which references nothing more than the accident and a claim for property damage, medical bills and damages in general is not sufficient." Dorchinsky v. Windsor Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV01 0451773 (April 23, 2004, Thompson, J.) ( 36 Conn. L. Rptr. 875).
In Aetna Life Casualty Co. v. Braccidiferro, 34 Conn.App. 833, 643 A.2d 1305, fn.8 (1994), the Appellate Court stated that the insurer's knowledge of the plaintiff's claim in its capacity as no-fault insurer was insufficient to constitute notice of an uninsured motorist claim.
The materials submitted by the plaintiffs raise no genuine issue that they have submitted timely written notice to the defendant of their underinsured motorist claim and that they, thereafter, timely filed the claim. The tolling provisions of § 38a-336(g)(1) have not been satisfied. Therefore, summary judgment is hereby granted on the basis that this action for underinsured motorist benefits was not commenced within the three-year limitations period contained in the plaintiffs' insurance policy.
By the court,
Aurigemma, J.