Opinion
No. CV 04 4004614
December 5, 2005
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #107
FACTS
The plaintiff, Victor Rios, filed a three-count complaint on November 16, 2004, alleging that the defendants, Old Republic Insurance Company (Old Republic), Northern Insurance Company of New York (Northern Insurance) and Atticus Bakery, LLC doing business as Chabaso Bakery (Atticus), failed to pay him uninsured motorist claims relating to injuries he suffered in an automobile accident. Specifically, the plaintiff alleges that Old Republic and Northern Insurance had policies in effect at the time of the accident from which the plaintiff should be compensated for his uninsured motorist claims and, if these policies had lapsed, the plaintiff should be compensated from Atticus as a self-insurer of the vehicle for uninsured motorist claims.
On August 12, 2005, the defendant filed a motion for summary judgment on the ground that previous to this accident the automobile insurance policy underwritten by it had been cancelled due to nonpayment and, as such, the insurance policy was not in effect at the time of the accident. As required by Practice Book § 11-10, the defendant filed a memorandum in support of its motion for summary judgment, accompanied by two exhibits. The plaintiff timely filed a memorandum in opposition. Subsequent to the filing of these memoranda, the defendant filed an affidavit on behalf of Zurich American Insurance Company. Thereafter, the plaintiff filed a reply memorandum in which he argued that Atticus's denial of notice of the policy cancellation rebuts the presumption that such cancellation was received, thereby creating an issue of fact which may not be decided on a motion for summary judgment.
The motion for summary judgment presently before the court was filed by Northern Insurance only. Therefore, "the defendant" will refer only to Northern Insurance.
The affiant states therein that prior to October 16, 2001, Northern Insurance was known as Zurich American Insurance Company.
DISCUSSION CT Page 15534
The purpose of a motion for summary judgment is to resolve "litigation when 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 . . . The 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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005)."[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
In an affidavit filed by the defendant on October 6, 2005, the affiant, on behalf of Zurich American Insurance Company, avers that he has "knowledge as to the cancellation procedures for" the defendant and that a copy of the defendant's certificate of mailing had been attached to the defendant's motion for summary judgment and memorandum of law. The affidavit, however is insufficient. The deficiency of the affidavit lies in the fact that the affiant neither identifies himself nor indicates under what authority he may proffer an affidavit on behalf of Zurich American Insurance.
Specifically, as to summary judgment, [s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 9 (Conn. 1986).
Since there has been no showing that the affiant is competent to testify as to the matters contained in the affidavit based on anything other than his "knowledge" of the defendant's cancellation procedures, the defendant's motion for summary judgment could be denied on this ground. However, since this issue was not raised by the plaintiff, the court will address the substantive grounds of the motion.
The defendant argues that General Statutes § 38a-343(a) permits an insured to be notified by mail, evidenced by a certificate of mailing, when his or her automobile insurance policy has been cancelled for failure to pay the premium and, that Connecticut law requires only that it prove it mailed the cancellation notice rather than receipt by the insured.
Sec. 38a-343(a). (Formerly Sec. 38-175h.)
No notice of cancellation of a policy to which section 38a-342 applies may be effective unless sent, by registered or certified mail or by mail evidenced by a certificate of mailing, or delivered by the insurer to the named insured, and any third party designated pursuant to section 38a-323a, at least forty-five days before the effective date of cancellation, except that (1) where cancellation is for nonpayment of the first premium on a new policy, at least fifteen days' notice of cancellation accompanied by the reason for cancellation shall be given, and (2) where cancellation is for nonpayment of any other premium, at least ten days' notice of cancellation accompanied by the reason for cancellation shall be given. No notice of cancellation of a policy which has been in effect for less than sixty days may be effective unless mailed or delivered by the insurer to the insured and any third party designee at least forty-five days before the effective date of cancellation, provided (A) at least fifteen days' notice shall be given where cancellation is for nonpayment of the first premium on a new policy, and (B) at least ten days' notice shall be given where cancellation is for nonpayment of any other premium or material misrepresentation. The notice of cancellation shall state or be accompanied by a statement specifying the reason for such cancellation. Any notice of cancellation for nonpayment of the first premium on a new policy may be retroactive to the effective date of such policy, provided at least fifteen days' notice has been given to the insured and any third party designee and payment of such premium has not been received during such notice period.
Sec. 38a-342. (Formerly Sec. 38-175g.) Bases for cancellation.
(a) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons: (1) Nonpayment of premium; (2) the driver's license or motor vehicle registration of either the named insured or any operator either resident in the same household or who customarily operates an automobile insured under the policy has been revoked during the policy period or, if the policy is a renewal, during its policy period or the one hundred eighty days next preceding its effective date.
Sec. 38a-344. (Formerly Sec. 38-175j.) Proof of notice.
Proof of mailing by certified mail, return receipt requested, notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured, and any third party designated pursuant to section 38a-323a, at the address shown in the policy, shall be sufficient proof of notice.
In opposition, the plaintiff argues that case law indicates a certificate of mailing is insufficient to cancel such an insurance policy without actual notice by the insured. Furthermore, he argues that his affidavit denying receipt of the cancellation notice rebuts the defendant's affidavit, in which it states that the cancellation notice was sent, and thereby creates an issue of fact for which summary judgment is not appropriate.
"General Statutes §§ 38a-341 through 38a-344 govern the procedures for the cancellation of an automobile insurance policy by an insurer . . . The purpose of § 38a-343 is to assure that before an automobile insurance policy is cancelled the insured has a clear and unambiguous notice of the cancellation." Kane v. American Ins. Co., 52 Conn.App. 497, 502, 725 A.2d 1000 (1999), aff'd, 252 Conn. 113, 743 A.2d 612 (2000), quoting Johnston v. American Employers Ins. Co., 25 Conn.App. 95, 97-98, 592 A.2d 975 (1991). "In enacting § 38a-343(a), the legislature appears to have intended to eliminate the potentially harsh consequences to an insured of driving without knowing that his or her policy was inoperative. See 13 H.R. Proc., Pt. 10, 1969 Sess., p. 4437, remarks of Representative Gerald Stevens ("[i]f . . . someone has his insurance policy canceled and is driving under the mistaken impression that he has insurance and subsequently is involved in an accident, the consequences can be rather severe"). See also Johnston v. American Employers Ins. Co., 25 Conn.App. 95, 97-98, 592 A.2d 975 (1991) ("purpose of General Statutes § 38a-343 . . . is to assure that before an automobile insurance policy is cancelled the insured has a clear and unambiguous notice of the cancellation"). Thus, the requirement that an insurer provide an insured with notice of its decision to cancel an automobile insurance policy was a legislative effort that focused on affording an insured an adequate opportunity to procure other insurance." Majernicek v. Hartford Casualty Ins. Co., 240 Conn. 86, 92, 688 A.2d 1330 (1997).
The defendant in the present case states that it had cancelled an automobile insurance policy it had issued to Atticus. Atticus denies ever receiving such notice or having any knowledge of the cancellation. The plaintiff, an employee of Atticus, was operating the vehicle and was involved in an accident suffering significant injuries. The court finds that if the purpose behind § 38a-343 is to provide the insured with an opportunity to purchase other insurance when his or her policy has been cancelled, then this purpose would be thwarted by a requirement that actual notice is not necessary. "Ultimately, the resolution of the present issue is governed by the mailbox rule, which provides that a properly stamped and addressed letter that is placed into a mailbox or handed over to the United States Postal Service raises a rebuttable presumption that it will be received." Echavarria v. Nat'l Grange Mut. Ins. Co., 275 Conn. 408, 418 (Conn. 2005).
The court finds that an affidavit asserting that notice was not received, rebuts the presumption, thereby raising a question of fact.
Accordingly, the motion for summary judgment is denied.