Wongsarochana v. Kitmiridis

Full title: WILDA WONGSAROCHANA v. PETER KITMIRIDIS ET AL

Court: Connecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford

Date published: Sep 9, 2003

2003 Ct. Sup. 10549 (Conn. Super. Ct. 2003)

Opinion

No. CV 01 0183057 S

September 9, 2003

MEMORANDUM OF DECISION

D'ANDREA, JUDGE TRIAL REFEREE.

This court previously denied one of the defendants,' Progressive Insurance, motion for summary judgment (#132) on December 30, 2002 (#143). Currently pending is Progressive's second motion for summary judgment (#149).¹

1 Progressive has filed three motions for summary judgment, #'s 126, 132, and 149. However motion #126 was withdrawn (#134.10).

Just as it was argued in its first motion for summary judgment, the thrust of Progressive's second motion for summary judgment is that General Statutes § 38a-336 (d) and the language of both the plaintiff's Allstate policy and the Progressive policy preclude the plaintiff from recovering uninsured motorist benefits under the Progressive policy as a matter of law. This court has already considered the merits of this argument and determined that outstanding issues of fact prevent summary judgment being entered in favor of Progressive.

There is no provision in our Practice Book that expressly prohibits the refiling of a motion for summary judgment that was previously denied. In Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 532 A.2d 1302 (1987), the Connecticut Supreme Court held that "it is within the trial court's discretion to consider a renewed motion for summary judgment that has previously been denied where, as here, additional or new evidence has been submitted which was not before the court in ruling upon the earlier motion for summary judgment." Id., 262. "The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . We have declared that, although a judge should not lightly depart from a prior ruling on a motion before the same or a different judge, the prior ruling is not binding." (Citations omitted; internal quotation marks omitted.) Id., 259. The Supreme Court further explained that it is not a violation of the law of the case for a trial court to consider a second motion for summary judgment "particularly where new evidence has been presented which was not before the court at the time of the original motion, or a clarification of the law has since occurred." Id., 261. "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . A judge should hesitate to change his own rulings in a case . . ." (Citation omitted; internal quotation marks omitted.) Carothers v. Capozziello, 215 Conn. 82, 107, 574 A.2d 1268 (1990).

The second motion for summary judgment has been exhaustively argued, being fully briefed by Progressive and the nonmoving party. The court has reviewed the exhibits attached to Progressive's first motion for summary judgment (#132), and attached to its second motion (#149). In Progressive's second motion for summary judgment there are two exhibits not contained in its first motion (#132). The two additional exhibits in support of the second motion for summary judgment are: 1) Progressive's request for admissions served on Allstate, and 2) Allstate's responses to the plaintiff's requests for interrogatories and for production. Neither party has brought to the court's attention any clarification of the caselaw since the court's prior ruling.

The two new exhibits attached to Progressive's second motion fail to persuade the court that its decision to deny Progressive's first motion was incorrect. The first new exhibit, Progressive's request for admissions, is not dispositive and falls short of resolving the outstanding issue of whether the plaintiff is entitled to recover uninsured motorist benefits as a named insured under her Allstate policy.² The second new exhibit, Allstate's responses to the plaintiff's interrogatories and request for production, also fails to establish that no issues of material fact remain in dispute.³

2 Progressive argues that Allstate's failure to respond to Progressive's request to admit the plaintiff's limits under her Allstate policy are deemed binding pursuant to the Practice Book. However, Allstate denies that the plaintiff is entitled to recover uninsured motorist benefits under its policy. (Allstate's Answer and Special Defenses, third count, ¶ 20.)

3 Progressive argues that Allstate "has neither denied coverage in this matter nor has it reserved its rights regarding this matter." To support this argument Progressive relies upon both the unresponded to request for admissions and Allstate's response to the plaintiff's interrogatories. However, this argument is countered by Allstate's Answer and Special Defenses.

It is well established that it is within this court's discretion to treat its earlier decision in this matter as the law of the case. Although Progressive's second motion for summary judgment (#149) contains two new exhibits, those exhibits introduce no new or overriding circumstance to persuade the court it should reconsider its earlier decision. Additionally, there has been no clarification of the caselaw since the court previously denied Progressive's prior motion for summary judgment (#132). Accordingly, the court will treat its earlier memorandum of decision (#143) as the law of the case. The prior decision therefore binds the court and Progressive's second motion for summary judgment (#149) is denied.

D'ANDREA, J.T.R.