Opinion
DBDCV166023748S
06-10-2019
Diana PASCOLA-MILTON v. Leroy MILLARD et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendant Liberty Mutual Insurance Company ("Liberty") has moved for summary judgment to dismiss all six counts alleged against it by plaintiff pro se Clive Milton ("Milton"). Milton has objected to the motion. For the reasons stated below, the motion for summary judgment is granted and the objection is overruled.
The Standards for Deciding a Motion for Summary Judgment
"The standards ... [for] review of a ... motion for summary judgment are well established. 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 .... A material fact ... [is] a fact which will make a difference in the result of the case ..." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60 (2001). (Citations omitted.)
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an 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 under Practice Book [§ 17-45] ..." McGee Avenue, LLC v. Lima Ceramic Tile, LLC, 183 Conn.App. 575, 583-85 (2018) (citation and footnote omitted).
"A party opposing summary judgment ‘must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ...’ In other words, ‘[d]emonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred ... A material fact is one that will make a difference in the result of the case ... To establish the existence of a [dispute as to a] material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue ... Such assertions are insufficient regardless of whether they are contained in a complaint or a brief ... Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact ... The issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.’" Bank of New York Mellon v. Horsey, 182 Conn.App. 417, 436 (2018) (citations omitted).
The Underlying Tort Claims are Barred by the Statute of Limitations
This action was commenced on July 11, 2016 by Milton’s spouse, Diana Pascola-Milton, who alleged she was injured by LeRoy Millard ("Millard") in an automobile accident on November 29, 2014. Milton was permitted to intervene in this action by order dated November 30, 2017, three years after the accident, and his original complaint filed on November 3, 2017, alleged two claims against Millard, bystander emotional distress and loss of consortium, and three claims against Liberty, underinsured motorist benefits, bystander emotional distress and loss of consortium. Milton has amended his complaint four times. The operative pleading at the time this motion was filed was "Plaintiff’s Second Amended Complaint" dated June 19, 2018. On May 29, 2019, Milton filed "Plaintiff’s Third Revised Complaint" in compliance with a court order that he revise his complaint. The Second and Third Amended complaints alleged the same counts against Liberty: (1) bystander emotional distress, (2) violation of the Connecticut Unfair Insurance Practice Act ("CUIPA") and the Connecticut Unfair Trade Practices Act ("CUTPA"), (3) bystander emotional distress, (4) loss of consortium, (5) breach of contract, (6) intentional infliction of emotional distress, (7) breach of duty to settle, (8) failure of duty to inform insured, and (9) breach of contract and covenant of implied duty of good faith and fair dealing.
Liberty has moved for summary judgment arguing that all Milton’s claims against it must fail because the negligence claims against Millard, the tortfeasor, are barred by the applicable two-year statute of limitation, C.G.S. § 52-584.
The Supreme Court’s opinion in Ayusik v. Nationwide Mut. Ins. Co., 233 Conn. 474 (1995), cited by Milton to challenge the validity of the two-year limitations in C.G.S. § 52-584, is inapposite and concerns private limitations periods in uninsured/underinsured insurance policies, not the negligence statute of limitations enacted by the Legislature and applied frequently to bar stale negligence claims.
In Forest v. Millen, 2018 WL 1459766 *2 (Conn.Super. 2018) (Bellis, J.), Judge Bellis discussed the respective burdens of proof when summary judgment is sought based on statutes of limitation:" ‘Summary judgment may be granted where a claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute’ ... ‘[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside the statutory limitation period’ ... ‘When documents submitted in support of a ... motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.’" (Citations omitted.)
Connecticut General Statutes § 52-584 provides, in pertinent part: "[n]o action to recover damages for injury ... to real or personal property, caused by negligence ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ..."
The three-year statute of repose in C.G.S. § 52-584 is not at issue here.
When determining whether an action was timely commenced, the Supreme Court has held that an injury occurs when a party suffers some form of actionable harm. See Catz v. Rubenstein, 201 Conn. 39, 45 (1986).
" ‘Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action ... A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm ... Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another ... In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm.’ ... ‘The focus is on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories.’ ... The determination of ‘whether a party’s claim is barred by the statute of limitations is a question of law ... Determining when a plaintiff suffers actionable harm, however, is ordinarily a question of fact.’" Forest, 2018 WL 1459766 *3 (citations omitted).
Actionable harm to Milton on his claims against Millard occurred on the date of the accident, November 29, 2014. See Clohessy v. Bachelor, 237 Conn. 31, 52 (1996) ("the bystander’s emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury"); Rivera v. Double Transp., Inc., 248 Conn. 21, 31 (1999) ("mental suffering, even if unaccompanied by physical trauma to the body, constitutes an injury to the person under § 52-584"); Conn. Assur. Guar. Ass’n v. Fontaine, 278 Conn. 779, 785-86 (2014) ("cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions"). Both Milton’s bystander emotional distress claim and his loss of consortium claim are negligent personal injury claims governed by C.G.S. § 52-284 and the limitations period commenced upon his wife’s injury. See Geiger v. Carey, 170 Conn.App. 459, 490 (2017) (negligent infliction of emotional distress); Pond v. Eastern Hospitality, 1996 WL 614832 *2 (Conn.Super. 1996) (Silbert, J.) (loss of consortium). See generally Voris v. Molinaro, 302 Conn. 791, 797-801 (2011) (spouses’ claims are interdependent). The limitations period did not commence later, after Milton consulted with counsel, and discovered that he could allege tort claims against Millard. See generally Gugliemi v. Willowbrook Condominium Ass’n, Inc., 151 Conn.App. 806, 810 (2014).
On April 22, 2019, Judge Robert D’Andrea granted Millard’s motion for summary judgment holding that Milton’s claims for bystander emotional distress and loss of consortium are barred by the two-year limitations period in C.G.S. § 52-584. It is the Court’s understanding that this decision has been appealed and is not final so Liberty’s collateral estoppel argument is not well-taken. The Court also declines to treat this decision as "law of the case," as Liberty urged, but agrees with Judge D’Andrea’s conclusion that these negligence claims are barred by C.G.S. § 52-584.
That the Underlying Tort Claims are Barred Undercuts the Viability of the Claims Alleged Against Liberty by Milton
That Milton’s underlying claims against the tortfeasor are barred by the applicable statutes of limitations has implications for the viability of his claims against Liberty, the underinsured motorist carrier.
The issue here is not whether the applicable statute of limitations on the non-negligence claims against Liberty have expired.
Section 38a-336(b) provides in relevant part: "An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage ..."
In Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 723-24 (2013), the Supreme Court discussed the policy behind the requirement of underinsured motorist coverage: "[a]lthough compensating the victim of an underinsured motorist as if the tortfeasor were adequately insured is a general public policy objective of the uninsured motorist statute ... As we have earlier observed, [t]he plain words of ... [§ 38a-336] simply require that each policy provide a minimum level of uninsured [and under insured] motorist coverage for the protection of persons insured thereunder. The statute does not require that [underinsured] motorist coverage be made available when the insured has been otherwise protected ... Nor does the statute provide that the [underinsured] motorist coverage shall stand as an independent source of recovery for the insured, or that the coverage limits shall not be reduced under appropriate circumstances. The statute merely requires that a certain minimum level of protection be provided for those insured under automobile liability insurance policies; the insurance commissioner has been left with the task of defining those terms and conditions which will suffice to satisfy the requirement of protection."
The Anastasia Court noted that the regulations promulgated by the Insurance Commissioner reflect this policy:" ‘The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured or underinsured motor vehicle ...’ Regs., Conn. State Agencies § 38a-334-6(a). The regulation also allows an insurer to limit its underinsured motorist liability. Specifically, relevant to the present case, the regulation permits an insurer to limit its liability ‘to the extent that damages have been ... paid by or on behalf of any person responsible for the injury ...’ (Emphasis added.) Id., at § 38a-334-6(d)(1)(A)."
Chief Justice, then Judge Robinson, explained the policy basis underlying the uninsured/underinsured motorist statute in General Acc. Ins. Co. v. Mortara, 52 Conn.Supp. 522, 540-41 (2012) (Robinson, J.): "[t]he Connecticut Supreme Court has recognized ‘the dual purposes of underinsured benefits of providing compensation for the victims of underinsured motorists, while simultaneously adhering to the principle that uninsured motorist coverage is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured.’ ... ‘Indeed, underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor ... Rather, [t]he public policy of § 38a-336 is to give a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the underinsured motorist had maintained an adequate policy of liability insurance.’" (Citations omitted.)
In Marques v. Allstate Ins. Co., 140 Conn.App. 335, 341 (2013), the Appellate Court held: "[i]n order to recover underinsured motorist benefits under his policy with the defendant, it was incumbent upon the plaintiff to prove that his total compensatory damages resulting from the collision at issue exceeded the coverage available to compensate him for those damages under [the] liability policy."
The claim for underinsured insurance benefits is an action on a contract contingent on legal liability of the tortfeasor to pay damages to the insured. See Dodd v. Middlesex Mut. Assur. Co., 242 Conn. 375, 384 (1997).
Here, the tortfeasor Millard has no legal liability to pay damages to Milton because the claims are barred by the statutes of limitations. Without a prospective damages award against the tortfeasor, there can be no underinsured motorist coverage from the insurer because the insurer’s contractual obligation is contingent on the tortfeasor’s liability. See Dodd, 242 Conn. at 385.
The other claims by Milton fail because they presume that Liberty had contractual obligations to cover the tortfeasor’s liability to Milton on the barred bystander emotional distress and loss of consortium claims. Without viable claims against the tortfeasor there is no basis for claims that Liberty breached its contract with Milton by failing to pay the claims and settle, intentionally inflicted emotional distress by denying coverage, breached its duty to settle by not settling with Milton, violated its implied duty of good faith and fair dealing by failing to pay the claim or violated CUTPA and CUTPA by failing to settle with Milton and his spouse.
Milton does not understand that an automobile accident policy is not a policy to insure the insured from injuries resulting from an automobile accident, but to insure others to whom the insured could be liable; the only portion of the policy that would apply to provide benefits to the insured related to an accident with a third-party tortfeasor is the uninsured/underinsured provision that applies to provide limited protection where the tortfeasor is legally liable to pay damages to the insured but lacks the means to satisfy the award. See generally Dodd, 242 Conn. at 385. Indeed, Milton’s motion to intervene and original complaint against Liberty explicitly invoked the underinsured motorist provision of the policy, albeit his later complaints omitted this reference and refers vaguely instead to the general automobile policy and coverage limits.
Milton has not borne his burden to show that there is a genuine issue of fact concerning his asserted rights to receive direct payments under his automobile policy regardless of any liability of Millard on Milton’s tort claims. Nor has Milton provided any facts to support his claim that Liberty breached a fiduciary duty to advise him of the availability of conversion coverage under C.G.S. § 38a-336a or that such coverage would have applied under the circumstances here to cover the barred claims. Conversion coverage under C.G.S. § 38a-336a also is limited to recoverable damages: "(b) [s]uch underinsured motorist conversion coverage shall provide for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of underinsured motor vehicles."
There are no genuine issues of material fact to be tried. Liberty is entitled to summary judgment on all counts of the operative complaint.