Opinion
No. FST CV 06 5001294
June 15, 2007
MEMORANDUM OF DECISION
This summary judgment motion requires this court to weigh issues of insurance policy interpretation regarding possible time limitations therein for underinsured motorist claims and whether a carrier may have waived such limitations by the nature of discussions with plaintiff's counsel prior to deadline.
The case is a breach of contract action by plaintiffs, Amy and David Wilfert, against defendant, Allstate Insurance. The following is alleged. Plaintiffs and a third-party tortfeasor were involved in an accident on September 22, 2002, in which Amy Wilfert sustained numerous injuries. At the time, plaintiffs had a valid insurance contract with the defendant which included, among other things, underinsured motorist conversion coverage. Plaintiffs recovered the full amount of the tortfeasor's coverage on June 8, 2004. Plaintiffs subsequently submitted their underinsured motorist claim to Allstate for evaluation. The defendant ultimately denied the plaintiffs' claim after many communications and the plaintiffs commenced the present action on May 2, 2006, alleging breach of contract.
The defendant filed a motion for summary judgment and plaintiffs filed a cross motion for summary judgment, with respect to the defendant's third special defense, and also objected to defendant's motion for summary judgment.
The court will treat the plaintiffs' cross motion for summary judgment as an objection to the defendant's motion for summary judgment. "[T]he decisions of the Connecticut Superior Court are almost in unanimous agreement that a [plaintiff's] motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses . . . Summary judgment on a special defense is also improper because [e]ven if the special defenses were all to fail . . . the plaintiffs' motion and supporting documents do not remove from dispute facts relevant to determining whether they are entitled to judgment as a matter of law on the complaint itself . . ." (Citation omitted; internal quotation marks omitted.) Sound Post, LLC v. New Harvest Coffee Roasters Inc., Superior Court, housing session at Bridgeport, Docket No. BRSP 056336 (May 6, 2005, Skolnick, J). In the present case, it is reasonable for the court to construe the plaintiffs' motion as an objection because they titled their motion, "Plaintiffs' Cross-Motion for Summary Judgment or, in the alternative, Motion in Limine, and Objection to Allstate's Motion for Summary Judgment," and the arguments in their motion are a direct response to the defendant's motion for summary judgment.
"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 (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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006).
The defendant claims no genuine issue of material fact exists; that plaintiffs failed to commence their claim within the three-year period specified in the policy. Defendant submitted the affidavit of its claims examiner, Tracy Roy, and one from Tamara Johnson, another employee, authenticating an attached copy of the insurance contract. The plaintiffs argue that the contract specifying a three-year limitations period contains ambiguities and therefore a default limitation applies. Plaintiffs further argue that even if the three-year limitation applies, summary judgment must be denied because defendant waived or should be estopped from enforcing it. In support, plaintiffs submit the affidavits of Attorney Mario DiNatale and his secretary, Christine Maze. DiNatale's affidavit authenticates numerous written correspondences between DiNatale and the defendant. The defendant submitted a memorandum in opposition, without additional affidavits or other documents.
The first issue is whether the provision limiting underinsured claims to three years applies, or whether ambiguity dictates the default six-year statutory period. Pursuant to General Statues § 38a-336(g)(1), insurance companies may contractually provide for limitations periods of three years within which an insured must bring an underinsured motorist claim. That is, said 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 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004). "[I]n the absence of some other controlling statutory or contractual provision, [General Statutes] § 52-576 (a) is the applicable statute of limitations for bringing claims under insurance policies." Gohel v. Allstate Ins. Co., 61 Conn App. 806, 821 (2001).
General Statutes § 38a-336(g)(1) provides in relevant 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 underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident . . ."
General Statutes § 52-576(a) provides in relevant part: "No action . . . on an any contract in writing, shall be brought but within six years after the right of action accrues . . ."
Plaintiffs assert as noted that the six-year provision applies because of ambiguity. They cite to language on page twelve of the policy, titled "Part VI, Uninsured Motorist Insurance, Underinsured Motorist Conversion Insurance, Coverage SC," which states that "[i]f a premium is shown on the declarations page for Coverage SC, Uninsured Motorist Insurance and Underinsured Motorist Conversion Insurance, [the defendant] will pay those damages which an insured person is legally entitled to recover . . ." Said Part VI also contains a subsection entitled "Legal Actions," which specifies that "[n]o one may sue [the defendant] under this coverage unless there is full compliance with all policy terms. Any legal action against [the defendant] must be brought within three years from the date of the accident." Plaintiffs argue that "a reasonable layperson" would conclude that the three-year limitation provision only applies "if the policy declarations page lists `Coverage SC' along with a premium paid." Therefore, plaintiffs argue that because the declarations page does not specifically include the phrase "Coverage SC," the limitations period set forth in Part VI related to "Coverage SC," does not govern the "Uninsured/Underinsured Motorists Conversion" coverage listed on the declarations page. Said inapplicability of Part VI to the underinsured conversion coverage does not strip plaintiffs of this coverage they note. Instead, plaintiffs argue that the "Uninsured/Underinsured Motorists Conversion" coverage indicated on the declarations page is statutorily mandated and absent a contractual limitations provision, is governed by the six-year statutory limitations period.
The plaintiffs attached an authenticated copy of their insurance policy as Exhibit A. Part VI, on page 12, entitled "Uninsured Motorist Insurance/Underinsured Motorist Conversion Insurance/Coverage SC," provides in relevant part: "If a premium is shown on the declarations page for Coverage SC, Uninsured Motorist Insurance and Underinsured Motorist Conversion Insurance, we will pay those damages which an insured person is legally entitled to recover from the owner or operator of an insured auto or underinsured auto because of bodily injury sustained by an insured person."
Part VI, page 15, entitled "Legal Actions," provides: "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."
The carrier responds that the absence of "Coverage SC" from the declarations page does not render the policy ambiguous. Rather, the defendant maintains that "Coverage SC" is merely a symbolic designation of underinsured conversion coverage, or shorthand for the coverage explicitly written on the declarations page, "Uninsured/Underinsured Motorists Conversion" coverage.
"[T]he terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . . Our jurisprudence makes clear, however, that [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied . . . Indeed, courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 519 (2004). "The fact that the parties interpret the terms of a contract differently, however, does not render those terms ambiguous . . . Rather, whether a contract is ambiguous is a question of law for the court." (Citation omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 200 (2006).
Plaintiffs' interpretation of the provisions would require the court to distort their plain meaning. Although plaintiffs are correct that the words "Coverage SC" are missing from the declarations page, the absence of those words does not negate the applicability of Part VI in the contract, which relates to underinsured conversion coverage. Following plaintiffs' reasoning, the absence of "Coverage SC" would not only invalidate the contractual limitations period, but it would also invalidate the plaintiffs' underinsured conversion coverage because Part VI dictates that if a premium is shown on the declarations page for "Coverage SC, Uninsured Motorist Insurance and Underinsured Motorist Conversion Insurance," only then will the defendant provide underinsured conversion coverage. According to the policy, if Part VI does not apply, the plaintiffs would not be entitled to conversion coverage; the defendant is not required to provide, but merely to offer, conversion coverage, and it is available for an optional, additional premium. Therefore, because conversion coverage is optional and governed by Part VI of the policy, the plaintiffs' insistence on receiving conversion coverage is inconsistent with their claim that the policy provisions related to conversion coverage do not apply.
Statutes § 38-336a(a) provides: "Each insurer licensed to write automobile liability insurance in this state shall offer, for an additional premium, underinsured motorist conversion coverage with limits in accordance with section 38a-336. The purchase of such underinsured motorist conversion coverage shall be in lieu of underinsured motorist coverage pursuant to section 38a-336."
In addition, the absence of the phrase "Coverage SC" from the declarations page does not render the policy ambiguous when the rest of the designation, "Uninsured/Underinsured Motorists Conversion," is clearly displayed. Plaintiffs' argument would be more plausible if the clause at issue stated clearly that "Coverage SC" must be written on the declarations page for the conversion coverage to apply. Plaintiffs did not submit, and the court is unaware of, any case law that supports plaintiffs' interpretation. Contrary to plaintiffs' assertions, the plain language of the declarations page indicates that plaintiffs purchased underinsured motorist conversion coverage at an additional premium and are covered under the relevant policy provisions.
The court is also bound by the appellate rulings upholding the validity of the defendant's three-year limitation on underinsured motorist claims. See, e.g., Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 329; Tracy v. Allstate Ins. Co., 268 Conn. 281, (2004). In Tracy, plaintiff had an insurance contract with the defendant, Allstate, which specifically provided for a three-year limitations period on filing underinsured coverage claims. Having failed to commence suit within three, the plaintiff argued that the six-year limitations period under § 52-576(a), should apply, "because the policy's language was ambiguous and, due to its ambiguity, the six year limitation statute should have applied." Id., 331-32. Once the court in Tracy determined that there was no ambiguity, it upheld the three-year limitation in the defendant's policy: "The policy expressly included a limitation provision of three years, which complies with the mandatory condition set forth in the statute." Id., 337. In absence of an ambiguity, this court, as in Tracy, is required to uphold the limitations provision in the policy.
In Tracy, plaintiff there highlighted a different purported ambiguity in the defendant's policy. The court dismissed her argument that it was impossible to simultaneously comply with the policy's requirement of exhausting a tortfeasor's liability coverage and file a claim within the three-year limitations period. Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 331-32.
There is no dispute that plaintiffs did not commence this action within three years of their accident, but plaintiffs argue that summary judgment should nonetheless be denied because the defendant either impliedly waived the limitations period or should be estopped from asserting it based on its conduct. "The Connecticut Supreme Court has held that an insured must comply with a contractual limitation on suit in order to maintain an action unless there exists a valid excuse for nonperformance . . . Such excuses include: (1) impossibility of performance under the law of contracts; (2) waiver by the insurer; or (3) conduct engaged in by the insurer constituting an estoppel to the assertion of nonperformance." (Citation omitted; internal quotation marks omitted.) Green v. Royal Indemnity Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0283499 (June 8, 2004, Wiese, J.); Maher v. Connecticut Insurance Placement Facility, 40 Conn.Sup. 299, 303-04 (1985).
The plaintiffs' accident occurred on September 22, 2002 and they commenced the present action by service of process on May 2, 2006.
The court will treat the waiver and estoppel arguments as one because they are predicated on the same facts and "implied waivers and estoppels by conduct are so similar that they are nearly indistinguishable." (Internal quotation marks omitted.) Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 352 (1991). "[E]stoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some in jury . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Citations omitted; internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 385-86 (1996)."[W]aiver and estoppel are questions of fact . . ." Hanover Ins. Co. v. Fireman's Fund Ins. Co., supra, 217 Conn. 350.
"Equitable estoppel is [applicable] in cases [concerning the statute of limitations] where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused him to delay bringing his lawsuit. This doctrine is applicable where the defendant has either misrepresented the length of the limitations period or lulled the plaintiff into believing that it was not necessary for him to commence litigation . . . The insurance company must be guilty of some affirmative act of concealment of more than mere silence . . . An insurance company is not estopped to rely on the [limitations period] where the plaintiffs were delayed in commencing suit, not by misrepresentations of the defendants, but by negotiations." (Citation omitted; internal quotation marks omitted.) Scalise v. American Employers Ins. Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 970158687 (May 24, 2000, Nadeau, J.) [ 27 Conn. L. Rptr. 324], aff'd on other grounds, 67 Conn.App. 753 (2002). "[A] plaintiffs claim that the absence of any nonwaiver language begets an estoppel or an implied waiver contradicts the long-standing principle that silence will not operate as [an] estoppel absent a duty to speak." (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., supra, 236 Conn. 387.
In the present case, plaintiffs argue that there is a genuine issue of material fact that defendant, by its actions, induced plaintiffs to delay filing suit and should therefore be estopped from asserting the three-year limitation. In response, defendant argues that it had no duty to disclose to the plaintiffs that it would be denying their claims or that it would be enforcing the limitations provision contained in the contract. As Boyce indicates, the defendant is correct that the plaintiffs cannot make out an estoppel argument by asserting that they relied on the defendant's silence to their detriment. See Boyce v. Allstate Ins. Co., supra, 236 Conn. 387. Plaintiffs, however, do not rely on the defendant's silence as the crux of their estoppel argument; instead, they argue that there is a genuine issue of material fact with respect to whether the defendant affirmatively acted in such a way as to induce the plaintiffs not to file suit.
Plaintiffs submit written correspondence between Mario DiNatale and defendant's claims adjuster, Diane Dube. In a letter dated July 13, 2005, DiNatale stated he would have no choice but to file suit if the defendant did not respond to his demand to settle by July 22, 2005. Dube responded in a letter dated July 18, 2005, that she was awaiting additional records and that she would be able to evaluate the file upon receipt of these records. Plaintiffs' attorney attests to the fact that most of the requested records were sent on July 27, 2007 and the remainder was sent on August 12, 2005. Plaintiffs argue that they relied on the defendant's promises to evaluate the file as soon as defendant received the necessary documents, and therefore delayed filing suit. DiNatale further attests that after he sent the remaining records on August 12, 2005, he did not hear from the defendant or its agents again until December 30, 2005, when he received a letter from Agnieszka Coakley, defendant's claims adjuster, notifying him that records were still missing and the statute of limitations had expired.
Plaintiffs argue that there is a genuine issue of material fact with respect to whether the defendant was actually evaluating the claim or merely stalling until the limitation period had lapsed. As Hanover dictates, waiver and estoppel are questions of fact, and whether defendant acted in a way to induce plaintiff to delay filing suit, is a question of material fact. See Hanover Ins. Co. v. Fireman's Fund Ins. Co., supra, 217 Conn. 350. This court cannot conclude as a matter of law that the plaintiffs were "sleeping on [their] rights;" there remains a genuine issue of material fact with respect to whether the defendant "lull[ed] the plaintiff[s] into a sense of false security . . ." Boyce v. Allstate Ins. Co., supra, 236 Conn. 387-88.
Motion for summary judgment denied.