LLC v. Doyon Insurance Agency et al. (2011)

MEMORANDUM OF DECISION

The issue on reargument must be placed in perspective.   The Crawford motion for summary judgment was filed against the plaintiff Bluefin's claim against Crawford & Company.   The co-defendant Doyon Insurance Company and Fatima Doyon were not parties to that motion in that Crawford and the Doyon defendants have separate claims made against them.   Motions for summary judgment were argued on May 17, 2010 as to the three claims made by Bluefin Mortgage Fund;  one against Crawford and Company, a second against the Doyon defendants and a third against Zurich American Insurance.   The court refers to its decision on these motions in its December 15, 2010 memorandum of decision.   The court denied the motion for summary judgment filed by the Doyons, granted the motion as to two counts against Zurich, leaving one count;  and granted the Crawford motion for summary judgment as to the two counts against Crawford.

The court's decision with regard to Crawford was not appealed by Bluefin.   Now the Doyon defendants have filed a motion to reargue claiming that “there remains a genuine issue of material fact as to whether Hillard/Crawford did in fact communicate the plaintiff's claim to Zurich.   If Crawford did not do so, then Crawford was negligent and its negligence caused harm to the plaintiff, which it should have reasonably foreseen.   This would give rise to a duty to the plaintiff, on the part of Crawford, based upon the court's analysis as applied to the Doyon defendants.   For the foregoing reasons, the Doyon defendants request reargument of the court's decision on the motion for summary judgment of Crawford.¹

The Doyon defendants have an interest in the result reached as to the Crawford defendant since if there is a recovery for Bluefin, the first mortgagee on the property there could be an apportionment between defendants for any loss experienced by Bluefin as a result of the fact that the check covering the loss was sent to the property owner by Zurich, not Bluefin.

In the 36 pages of argument on May 17th there are nine lines referring to the Crawford motion representing a third of one page.   The attorney representing Zurich and Crawford said the court had not heard the latter case “but it is essentially the same as Zurich's with respect to there is just no duty on ․ behalf of Crawford to do anything to a mortgagee.”   The Doyon attorney had standing, of course, to advance their own motion for summary judgment but also, as co-defendant, had standing to argue that the Crawford motion should not be granted and in any event that Crawford and Doyon motions should be treated similarly so that the apportionment interests of the Doyons could be protected.   In that sense Doyon and Crawford had adverse interests which translates in this context to standing.

The problem here is that the Doyon defendants could not have been aware of the court's reasoning which assumed from the affidavits submitted by Zurich that Zurich in fact had notice of the status of Bluefin as mortgagee after the loss-two representatives of Zurich submitted affidavits to that effect.   The affidavits explicitly said that Zurich had no notice of Bluefin's status prior to the loss.   The court inferred that the inference that could be drawn is that post-loss Zurich had such notice or why frame the wording of the affidavit in that way.   In fact a fair reading of the May 17th argument is that Zurich did not appear to contest, although certainly not admitting that Hillard, Crawford's employee, in fact had given notice to Zurich of Bluefin's status.   Its argument was rather that it had no legal obligation to make a check to Bluefin since that company was not listed on the policy.   The court has difficulty with that argument since an industry purportedly relying on equitable principles ought not be able to rely on such an after the fact defense.   But that observation is irrelevant to the question at hand.

The Doyon defendants, at the May 17th hearing, were or should have been aware that Crawford's possible failure to submit Bluefin's status as first mortgagee to Zurich, which from a letter and fax to Hillard occurred in November 2006, several months before the check was issued, would have supported a claim against Crawford independently even of the viability of the claim against Zurich.   But this was not argued by the Doyon defendants;  the court's decision was not issued until December 15, 2010 and no request to re-open the proceedings was made prior to that date.

In effect what is being advanced here is not a motion to reargue but a request, based on the court's decision, to vacate a decision whose underlying basis, determinative of the Doyon concerns, was not even argued in prior filings or at the hearing on the motions for summary judgment.

A court can certainly reconsider the granting of a motion but Horton and Knox note in their commentary to Practice Book § 17-44 Heyman Assoc. v. Insurance Co., 9 Conn. L. Rptr. 121 (1993), aff'd, 231 Conn. 756 (1995), which held a motion to reconsider can be denied where it is based on “arguments that could have been made in the original motion for summary judgment.

Or to approach the problem from another perspective, the court, in effect, inferred that from the wording of the affidavits submitted by Zurich, the information submitted by Bluefin to Mr. Hillard was communicated to Zurich post-loss-why else use the prior to loss language.   Also the previously mentioned letter and fax to Hillard were sent to Hillard in November 2006 addressed as “Melvin Hillard, Property IV, Claims Management Services, Crawford and Company.”

This is “direct evidence.”   As noted in Tait's Handbook of Connecticut Evidence “Direct evidence of a fact or facts will often give rise to circumstance (sic) evidence of other fact or facts without direct proof of that fact.   A reasonable inference will satisfy a party's burden of production so as to establish a prima facie case;  but it has no effect on the burden of persuasion on that fact, that is the trier can accept or reject the fact to be inferred.” § 3.12.3, page 123.   Here no reason or evidence was advanced as to why the inference is not reasonable.   Should not the burden shift to the party disagreeing with the inference to present evidence as to why the inference should not be drawn especially where that evidence can be procured by discovery?  Maltas v. Maltas, 298 Conn. 354 (2000), cited an earlier case for the following:  (The) “general rule that party opposing summary judgment must provide evidentiary support for opposition inapplicable until moving party has made out prima facie case for entitlement to summary judgment.”   Why should not the same rule apply when a prima facie case for the granting of such a motion is reasonably established and a party having an adverse interest to the motion's being granted would have, standing and an opportunity to advance that interest?

The court granted the motion to reargue but does not change its ruling granting the Crawford motion for summary judgment.²

Thomas J. Corradino

Judge Trial Referee

FOOTNOTES

FN1. Mr. Hillard was an agent for Crawford and Company doing an inspection as to fire loss after a fire at the property of Zurich's insured.   The Doyons are licensed insurance producers and agents..  FN1. Mr. Hillard was an agent for Crawford and Company doing an inspection as to fire loss after a fire at the property of Zurich's insured.   The Doyons are licensed insurance producers and agents.

FN2. No evidence or argument has been presented to the effect that the common representation of Zurich and Crawford has prevented the deposition of Mr. Hillard or that other factors thwarted an attempt by the Doyon defendants to do so.   Nor is the court aware of any difficulties that would have prevented depositions or discovery directed at the “no notice prior to the loss affiants” presented by Zurich..  FN2. No evidence or argument has been presented to the effect that the common representation of Zurich and Crawford has prevented the deposition of Mr. Hillard or that other factors thwarted an attempt by the Doyon defendants to do so.   Nor is the court aware of any difficulties that would have prevented depositions or discovery directed at the “no notice prior to the loss affiants” presented by Zurich.

Corradino, Thomas J., J.T.R.