Michael Pierce et al. v. Allstate Property and Casualty Insurance Company (2011)

MEMORANDUM OF LAW IN RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

The plaintiffs, Michael and Alison Pierce, brought this action against the defendant, Allstate Property and Casualty Insurance Company, to recover underinsured motorist benefits.   In their complaint, the plaintiffs allege the following facts.   On March 17, 2008, a motor vehicle operated by Doug Prince struck the plaintiffs' vehicle while they were waiting to turn at an intersection.   The plaintiffs sustained multiple injuries as a result of the collision.

At the time of the collision, the plaintiffs were the insureds under an automobile insurance policy issued and held by the defendant, which policy provided underinsured motorist benefits.   Subsequent to the motor vehicle accident, liability payments were made to the plaintiffs on behalf of Prince, the underlying tortfeasor, pursuant to the terms of his insurance policy issued by Dairyland Insurance Company.   The amount of the payments thereby made exhausted the policy limits of Prince's coverage.   Since Prince's insurance coverage was inadequate to fully compensate the plaintiffs, however, the plaintiffs brought this underinsured motorist action against the defendant.   The present action was instituted by complaint dated April 27, 2011, and commenced by service of process made upon the defendant on May 10, 2011.   On October 27, 2011, the defendant filed a motion for summary judgment, along with a memorandum of law and supporting exhibits.   The defendant moves for summary judgment on the ground that there exists no genuine issue of material fact as to either the terms of the policy in question or the date this action was commenced, and that this action is time barred by a contractual provision contained in the plaintiffs' insurance policy and authorized by General Statutes § 38a–336(g)(1).¹  On November 28, 2011, the court heard oral argument from the defendant's counsel at short calendar.   The plaintiffs have not filed any documents in opposition to the motion for summary judgment and did not appear at short calendar.   The court agrees with the defendant that no issues of material fact exist, and that this action is time barred.   Accordingly, the defendant's motion for summary judgment is granted.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“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.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

These principles apply and therefore summary judgment may be granted where a claim is challenged as being time barred.   For this reason, summary judgment is appropriate on statute of limitation 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).   Similarly, and significant for purposes of the present motion, our courts have also specifically recognized that summary judgment may be granted where an underinsured motorist claim is brought outside of a contractual time limit.   Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 600, 999 A.2d 741 (2010);  Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 338, 819 A.2d 859 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004).

In the present case, the defendant moves for summary judgment on the ground that the plaintiffs failed to commence this action within three years of the date of the alleged accident, as required by the express terms of the plaintiffs' insurance policy.   In support of its motion for summary judgment, the defendant submitted a certified copy of the plaintiffs' insurance policy with the defendant.   The underinsured motorist provision contained in that policy provides in relevant part that:  “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.” ²

Even viewing the evidence in the light most favorable to the plaintiffs, the court concludes that there are no material issues in dispute, and that the present action is time barred because it was commenced outside of the three-year limitation set forth in the plaintiffs' insurance policy issued by the defendant.   Pursuant to this contract, the plaintiffs had until March 16, 2011, three years from the date of the alleged accident, to bring this action against the defendant for underinsured motorist benefits.   This action, however, was not commenced by service of process until May 10, 2011, almost two months after the expiration of the three-year limitation set forth in the plaintiffs' policy.³  As such, the plaintiffs' action is time barred.

CONCLUSION

For the foregoing reasons, and because the defendant has met its burden of proving that there is no genuine issue as to any material fact, the defendant's motion for summary judgment is hereby granted.

THE COURT

Gold, J.

FOOTNOTES

FN1. Specifically, the defendant argues:  “The plaintiffs' legal action against [the defendant] was not brought within the applicable time limits of the Allstate policy ․ and the requirements of ․ [General Statutes § ]38a–336.”   The defendant also references General Statutes §§ 38a–226(g)(1) and 38a–336(a)(g)(1), but these citations appear to be typographical errors..  FN1. Specifically, the defendant argues:  “The plaintiffs' legal action against [the defendant] was not brought within the applicable time limits of the Allstate policy ․ and the requirements of ․ [General Statutes § ]38a–336.”   The defendant also references General Statutes §§ 38a–226(g)(1) and 38a–336(a)(g)(1), but these citations appear to be typographical errors.

FN2. This three-year contractual limitation complies with state statute.   Although General Statutes § 52–576(a) generally establishes a six-year statute of limitations for claims brought under insurance policies, § 38a–336(g)(1) provides a vehicle by which insurers may contract out of this six-year statutory limitation period in connection with claims for uninsured or underinsured benefits.  General Statutes § 38a–336(g)(1) provides that:  “No insurance company doing business in this state may limit the time within which any suit may be brought against it ․ 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.”   Pursuant to this statute, however, the insured under such a policy containing a contractual limitation of less than the six-year statutory limitation is provided the statutory right to toll the limitation period in the policy by notifying the insurer in writing, prior to the expiration of the limitation period, of the existence of a potential claim for uninsured or underinsured benefits, and then by commencing suit for such benefits not more than 180 days after the date of the exhaustion of the limits of liability under all applicable automobile insurance policies. § 38a–336(g)(1);  Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 334–36..  FN2. This three-year contractual limitation complies with state statute.   Although General Statutes § 52–576(a) generally establishes a six-year statute of limitations for claims brought under insurance policies, § 38a–336(g)(1) provides a vehicle by which insurers may contract out of this six-year statutory limitation period in connection with claims for uninsured or underinsured benefits.  General Statutes § 38a–336(g)(1) provides that:  “No insurance company doing business in this state may limit the time within which any suit may be brought against it ․ 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.”   Pursuant to this statute, however, the insured under such a policy containing a contractual limitation of less than the six-year statutory limitation is provided the statutory right to toll the limitation period in the policy by notifying the insurer in writing, prior to the expiration of the limitation period, of the existence of a potential claim for uninsured or underinsured benefits, and then by commencing suit for such benefits not more than 180 days after the date of the exhaustion of the limits of liability under all applicable automobile insurance policies. § 38a–336(g)(1);  Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 334–36.

FN3. It should be noted that the plaintiffs here cannot seek to avail themselves of the benefit of the 180–day tolling provision provided in § 38a–336(g)(1);  see note 2, supra;  as that provision is not applicable to the facts at issue in the present action.   This tolling provision could have permitted a later filing of the action here (assuming proper notice) only if the limits of the Prince policy had not been exhausted until after the expiration of the three-year limitation period contained in the plaintiffs' policy with the defendant, or on a date no more than 180 days prior to the expiration of that period.   In other words, the tolling provision could have been applied in this case only if the exhaustion of the Prince policy had occurred on or after September 16, 2010—that is, the date 180 days prior to the three-year deadline (March 16, 2011) by which any action for underinsured benefits had to have been commenced.   Very simply, that is not what happened here.   In the materials submitted in support of its motion for summary judgment, the defendant included notarized copies of the release agreements executed by the plaintiffs and Prince's insurer, Dairyland Insurance Company.   These release agreements are dated April 27, 2009, thereby reflecting that the liability limits of the Prince policy were exhausted long before the date on which the statutory tolling provision potentially could have been triggered..  FN3. It should be noted that the plaintiffs here cannot seek to avail themselves of the benefit of the 180–day tolling provision provided in § 38a–336(g)(1);  see note 2, supra;  as that provision is not applicable to the facts at issue in the present action.   This tolling provision could have permitted a later filing of the action here (assuming proper notice) only if the limits of the Prince policy had not been exhausted until after the expiration of the three-year limitation period contained in the plaintiffs' policy with the defendant, or on a date no more than 180 days prior to the expiration of that period.   In other words, the tolling provision could have been applied in this case only if the exhaustion of the Prince policy had occurred on or after September 16, 2010—that is, the date 180 days prior to the three-year deadline (March 16, 2011) by which any action for underinsured benefits had to have been commenced.   Very simply, that is not what happened here.   In the materials submitted in support of its motion for summary judgment, the defendant included notarized copies of the release agreements executed by the plaintiffs and Prince's insurer, Dairyland Insurance Company.   These release agreements are dated April 27, 2009, thereby reflecting that the liability limits of the Prince policy were exhausted long before the date on which the statutory tolling provision potentially could have been triggered.

Gold, David P., J.