CT v. Continental Casualty Company et al. (2011)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT UPON REARGUMENT

On November 19, 2010, the court granted both the plaintiffs and the defendant's motions for reargument concerning the memorandum of decision issued June 2, 2010, on the defendant's motion for summary judgment.   A hearing was held on both motions to reargue on December 13, 2010.   Upon reconsideration, the court hereby vacates its previous order granting summary judgment and denies summary judgment for the following reasons:  This remaining count in this case (count one) sets forth a claim of professional negligence.   Both parties have disclosed expert witnesses.   Given the nature of the principal claim, the history of the relationship between the parties, the special defenses raised in avoidance of the plaintiff's claim, and the extensive legal argument focused on the nature and extent of the duty owed by the plaintiff to the defendant, the court finds that the defendant has failed to put to rest key issues of fact which preclude summary judgment.  “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.”  Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560 563-64 (2008).   Based on this standard, summary judgment was improvidently granted.

Further, as argued by the defendant, the court finds that the applicable statute of limitations based on a claim of the professional negligence of an insurance agent is General Statutes § 52-577.   The plaintiff argues that the relationship between the parties arose at least as far back as 1998 and continued through policy renewals in 2001 and 2004, until it was terminated in 2005 and that the defendant's negligence consisted of a continuing course of conduct which tolled the statute of limitations.   In order to support a finding of a continuing course of conduct, “there must be evidence of a breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to commencement of the period allowed for bring an action for such wrong ․ Where our Supreme Court has upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act ․ The continuing course of conduct doctrine is conspicuously fact-bound.”   Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 160 (2002).   Because the court cannot properly analyze whether the continuing course of conduct doctrine operates to toll the statute of limitations without first resolving questions of fact central to the issue of duty, the court cannot determine the statute of limitations question on a motion for summary judgment.   See Keller v. Beckenstein, 117 Conn.App. 550, 556-57, cert. denied, 294 Conn. 913 (2009) (When ruling on a motion for summary judgment, the function of the trial court “is not to decide issues of material fact, but rather to determine whether any such issues exist”).

Accordingly, upon reconsideration, the previous ruling on the motion for summary judgment is vacated and the motion for summary judgment is denied.

Peck, J.

Peck, A. Susan, J.