Opinion
No. CV03 04 21 18
December 7, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT ( #106)
On April 22, 2003, the plaintiff, Frank LaCroix, filed a one count complaint against the defendant, Allstate Insurance Company (Allstate). This action arises out of injuries and losses the plaintiff sustained from an automobile accident on November 30, 1999, caused by George Perham. The plaintiff alleges that his policy with Allstate provides that they would pay for all the damages he sustained from an accident with an uninsured motorist.
Perham was insured by Reliance Insurance Company, but at the time of the accident Reliance was insolvent.
On October 12, 2004, the defendant filed a motion for summary judgment accompanied by a memorandum of law and exhibits. On November 2, 2004, the plaintiff filed an objection and a supporting memorandum of law. On February 14, 2005, the defendant filed a supplemental memorandum in support of' his motion for summary judgment.
In support of its motion, Allstate submitted the following: (1) a copy of the complaint filed by LaCroix, (2) a copy of a letter from LaCroix' attorney notifying of Reliance's insolvency, (3) a certified copy of LaCroix' policy with Allstate.
In support of his objection, LaCroix submitted a letter from the Connecticut Insurance Guaranty Association.
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). 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 a 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.) Barrett v. Montesano, 269 Conn. 787, CT Page 15683 791-92, 849 A.2d 839 (2004).
"The existence of the genuine issue of material fact must be demonstrated by counteraffidavits 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 material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "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 limitations 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).
Allstate argues that as a matter of law they are entitled to judgment because the plaintiff failed to comply with the provisions of his insurance contract. They allege that the plaintiff failed to bring an action within three years after the accident or within one year of written notice that Reliance Insurance was insolvent. They maintain that the plaintiff's action is barred by the statute of limitation.
The plaintiff argues conversely that Allstate's limitation on the period in which a plaintiff can bring an action is unenforceable. They argue that the provision limits the right of the plaintiff to bring an uninsured motorist action. They maintain that the defendant's policy is ambiguous and that the applicable statute of limitations is six years pursuant to General Statutes § 52-576(a). They argue that since § 52-576(a) is applicable, the action is not time barred.
General Statutes § 38a-336(g)(1) provides in part: "[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 under-insured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident . . ." The uninsured motorist statute is "remedial in nature and [was] designed to protect people injured by uninsured motorists." Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 373, 641 A.2d 783 (1994). It 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 in part, 264 Conn. 905, 826 A.2d 179 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004). In other words, "no insurance company is permitted to place in its policy a limitation period of less than three years from the date of the accident for uninsured and under-insured motorist claims. Id. "[In] the absence of some other controlling statutory or contractual provision, § 52-576(a) is the applicable statute of limitation for bringing claims under insurance policies." Gohel v. Allstate Ins. Co., 61 Conn.App 806, 821, 768 A.2d 950 (2001).
"[T]he statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action." (Internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., 54 Conn.App. 724, 729, 737 A.2d 724, cert. granted in part, 251 Conn. 916; 740 A.2d 865 (1999), aff'd, 255 Conn. 601; 767 A.2d 1202. "[T]he point, [therefore], at which a cause of action can be successfully maintained or when it becomes an enforceable demand is not one unalterable moment, such as the date of the accident. Instead, the cause of action begins to accrue from the moment that the plaintiff is made aware that there is no insurance coverage available." Id.
General Statutes § 38a-336(g)(2), further provides in pertinent part: "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 . . ." Section 38a-336(g)(2) "provides for a minimum statute of limitations in those circumstances when a tortfeasor's liability carrier is deemed insolvent. In such a circumstance, as a measure of extra protection, the insured is given a one-year period, dating from notification of the insolvency of the tortfeasor's insurer, to bring an action for uninsured motorist coverage." Martinez v. Raymond, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. CV 01 0186778 (September 2, 2005, Dooley, J.). "The statute was designed to preclude carriers from enforcing a contractual provision which would otherwise bar a claim when the notice of insolvency is received after the contractual limitations period has expired or within one year of such an expiration date." Id.
In the present case, the plaintiff was involved in an accident with Perham on November 30, 1999. At the time of the accident, the plaintiff was insured with Allstate. Part 6 of the plaintiff's policy provides that: "[no] 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." This limitation of three years meets the requirements set forth in within § 38a-336(g)(1). Section § 52-576(a), therefore, is not applicable.
Under the terms of the contract, the plaintiff had until November 29, 2002, three years after the accident in which to bring legal action against Allstate. On January 31, 2001, the plaintiff notified Allstate in writing that Reliance, the tortfesor's insurance company filed for bankruptcy, and that he would be seeking to recover for his injuries under Allstate's uninsured motorist provision. This notification took place well within the three years as set forth by Allstate's policy. The plaintiff, however, did not commence legal action against Allstate until April 2003. Therefore, the defendant's motion for summary judgment is granted because the plaintiff did not bring action within three years after the accident took place, nor was it brought one year after notification that the tortfeasor's insurance company was insolvent.