Opinion
No. CV 05-4013755 S
March 20, 2007
MEMORANDUM OF DECISION
This matter is before the court on a motion for summary judgment brought by the defendant, Middlesex Mutual Assurance Company, dated July 31, 2006. Specifically, the defendant claims that the plaintiff failed to bring his underinsured motorist claim in a timely fashion, and as such is entitled to summary judgment.
The plaintiff, Michael Stavola, commenced this breach of contract action against the defendant, Middlesex Mutual Assurance Company, on November 28, 2005. The plaintiff alleges that he was involved in a motor vehicle accident on August 25, 2002, and sustained numerous injuries from the collision. He maintains that he had a motor vehicle insurance contract with the defendant at the time of the accident and that the contract covered, among other things, uninsured and underinsured motorist claims. The plaintiff commenced a personal injury action against the tortfeasors from his 2002 accident on June 22, 2004. The plaintiff alleges that on November 2, 2005, he learned that the tortfeasors only had $20,000 in liability coverage and subsequently, on November 14, 2005, he provided the defendant with notice that he would be making an underinsured motorist claim. The plaintiff's one-count complaint alleges that the defendant has breached the insurance contract by failing to compensate the plaintiff under the underinsured motorist provision. The defendant filed a motion for summary judgment, accompanied by a supporting memorandum, on August 4, 2006. The plaintiff filed a memorandum in opposition on August 11, 2006. The defendant filed a reply memorandum on August 31, 2006. The matter was heard on the short calendar on January 29, 2007.
I.
"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.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinksi v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
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).
II.
The defendant moves for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff failed to commence his underinsured motorist claim within the contractual three-year period. The defendant argues that according to the terms of the insurance contract, the plaintiff should have commenced suit within three years of his accident or, as provided by the contract, tolled the limitations period by providing notice of his underinsured claim to the defendant within three years of the accident. In support of its motion, the defendant provides a claim handler's affidavit, attesting to the date that the defendant received notice of the plaintiff's claim, and also a certified copy of the insurance policy.
In response, the plaintiff acknowledges that there is no genuine issue of material fact that he did not bring suit within the requisite three years. He argues, however, that the defendant is not entitled to judgment as a matter of law because the plaintiff's own notice of an underinsured claim is part of the inquiry. In other words, the plaintiff claims that because he did not have notice of the tortfeasor's deficiency in liability coverage until after the three-year limitation period, he could not have availed himself of the tolling provision until he was on notice of the necessity for underinsured compensation.
Insurance companies may contractually provide for limitations periods of at least three years within which an insured must bring an underinsured motorist claim. General Statutes § 38a-336(g)(1). The statute also imposes a tolling provision, which states in relevant part that "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 General Statutes § 38a-336(g)(1).
"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 underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident . . ." General Statutes § 38a-336(g)(1).
Insurance policies that provide a limitations period requiring that an underinsured motorist suit be brought within a certain time from the date of the accident are enforceable. Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 615-16, 767 A.2d 1202 (2001). When the insurance company provides a three-year imitations period from the date of the accident, as permitted by § 38a-336(g)(1), only written notice to the defendant, and not the plaintiff's lack of knowledge of the underinsured claim's accrual, tolls the limitations period. See Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 819 A.3d 859 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004). In Tracy, the plaintiff's contract with a defendant insurance company required her to commence claims for underinsured motorist compensation within three years of her accident. Id., 331. The plaintiff did not file her claim, however, until more than three years after her accident. Id. The court granted summary judgment on the plaintiff's claim despite her argument that she diligently pursued her claim and did not exhaust the tortfeasor's liability coverage until three years after her accident. Id., 338. The court reasoned that "[t]he policy expressly included a limitation provision of three years, which complies with the mandatory condition set forth in [§ 38a-336(g)(1)]. Accordingly, § 38a-336(g)(1) applies to the policy, and the plaintiff had the opportunity to exercise the tolling provisions set forth in the statute and to prevent her claim from becoming stale." Id., 337.
In the present case, like in Tracy, the insurance contract requires that the plaintiff assert any underinsured motorist claims within three years of his accident. The contract also has a provision that allows for tolling of the three-year limitations period, provided that the plaintiff gives the defendant written notice that he will pursue an underinsured motorist claim within the three-year period.
Part C of the section of the policy titled "Uninsured/Underinsured Motorist Supplement-Connecticut," provides in relevant part under "Legal Action Against Us," that "all suits must be brought within three years of the date of accident." In Cardarelli v. Middlesex Mutual Assurance Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0190417 (February 2, 2004, Tobin, J.) (36 Conn. L. Rptr. 485), the court upheld the validity of this same limitations provision: "The provisions are virtually identical to the provisions of General Statutes § 38a-336(g)(1) and meet the requirements of that statute . . . [T]he Appellate Court has found such provisions to be unambiguous and enforceable."
Part C under the heading "Legal Action Against Us" provides in relevant part that "the time for bringing suit for Underinsured Motorist benefits may be suspended provided: (1) The injured person notifies us in writing of their Underinsured Motorist claim within three years of the date of the accident . . ."
There is no genuine issue of material fact that the plaintiff did not commence his underinsured motorist claim within the contractual three-year period. The plaintiff's accident occurred on August 25, 2002, and he commenced the present lawsuit by service of process on November 26, 2005. Additionally, the plaintiff admits in his memorandum in opposition to summary judgment that he did not commence suit within three years of the accident. Further, there is no genuine issue of material fact that the plaintiff did not toll the limitations period because he did not give the defendant notice of his underinsured claim within three years of the accident. In his complaint, the plaintiff states that he provided the defendant with notice of his underinsured claim on November 14, 2005. An affidavit submitted by the defendant's claims handler affirms that date. Therefore, there is no genuine issue with respect to the fact that the plaintiff did not toll the limitations period within three years of his accident.
Since the plaintiff failed to bring the action within the three-year period as provided in the insurance contract, the court grants the defendant's motion for summary judgment.