Manuel O. Fernandes, Administrator v. Safeco Insurance Co. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Preliminary Statement

This action seeks to recover uninsured motorist benefits stemming from the alleged hit and run death of the plaintiff's decedent, Sergio J. Fernandes.   The defendant filed a motion for summary judgment on the grounds that this action was commenced outside the limitations period provided for in the plaintiff's insurance policy.   The plaintiff objects to the motion.   For the reasons set forth below, the motion is GRANTED.

Standard of Review

The standards for reviewing a motion for summary judgment are well settled.   A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law.  PB § 17–44;  Appleton v. Board of Education, 254 Conn. 205 (2000).   Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact.  Id. “Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806 (1996).   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, (1984).

Undisputed Facts

The timeline of events is not in dispute.   The plaintiff's decedent allegedly died as a result of being hit by a car on May 14, 2006.   It was allegedly a hit and run accident.   There were no witnesses to the event.   The decedent's body was discovered on the sidewalk at 59 Wolcott Street, Bristol, Connecticut.   No arrest was made but Richard Adduci, Jr. was identified as a suspect.   Based upon the information developed, the plaintiff brought a wrongful death action against Adduci in May 2008.   That case went to judgment on April 1, 2010, following Adduci's default and a hearing in damages.   While that case was pending, Adduci advised the plaintiff that he did not have any insurance coverage.   After the case went to judgment, he provided an affidavit of no insurance.¹

In May 2008, the plaintiff notified the defendant, in writing, of the suit against Adduci and further advised the defendant:  “this letter shall serve to formally advise Safeco Insurance Company, ․ that should the settlement proceeds stemming from said claim against ․ Adduci ․ fail to adequately compensate and make whole the Estate for the wrongful death of Sergio J. Fernandes, the Estate will bring an uninsured/underinsured motorist claim/action against Safeco Insurance Company” pursuant to the terms of the policy issued by Safeco.   Thereafter, there was a series of written, electronic and oral communications between the plaintiff and Safeco's adjuster.²  Ultimately, Safeco denied coverage on the basis that the decedent was not killed by a car.³

This action to recover uninsured motorist benefits was commenced by service of the writ, summons and complaint on April 26, 2010.   The policy at issue contains the following language:

LEGAL ACTION AGAINST US

C. All claims or suits under Part C of this policy, [uninsured/underinsured motorist coverage], must be brought within three years of the date of the accident.   However, in the case of a claim involving an underinsured motor vehicle, the insured may toll any applicable limitation period by:

1.  Notifying us prior to expiration of the three-year period, in writing, of any claim the insured may have for Underinsured Motorists Coverage, and—

2.  Commencing suit and/or arbitration proceedings not more than 180 days from the date of exhaustion of the limits of liability under all automobile bodily injury bonds or policies applicable at the time of the accident by settlements or final judgments after any appeals.

Discussion

The first question presented is whether the policy required that this action be brought within three years of the date of the accident, May 14, 2006.

[C]onstruction of a contract of insurance presents a question of law for the court ․ 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.

(Citations omitted;  internal quotation marks omitted.)  Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 519 (2004).

The plaintiff argues that the policy provisions were met because a claim was made within three years of the accident by virtue of the letter sent in May 2008.   He relies as well upon the follow-up discussions with the defendant's adjuster.   He essentially equates “a claim” under the policy, with the written notice of a potential claim and the natural consequences that flow from that notice.

The policy provides that “[a]ll claims or suits” must be brought within three years of the date of the accident.   An examination of the unambiguous policy language demonstrates that the plaintiff's written notice and ongoing dialogue with the defendant was not a “claim.”   Immediately following the limitations provision, the policy provides a tolling provision for the limitations period for “claims ” for underinsured benefits under certain circumstances.   It is clear that no exceptions are made for uninsured motorist benefits.   The plaintiff's argument, in essence, is that the tolling provisions for underinsured benefits are equally applicable with respect to this claim for uninsured benefits.   The conduct he relies upon would certainly satisfy the tolling provisions for underinsured benefits.   However, the policy has no such provision for one seeking uninsured benefits.   This court cannot import into an unambiguous contract provisions which simply are not there.  Galgano v. Metropolitan Property & Casually Ins. Co., 267 Conn. 512, 519 (2004).

The three-year limitations period was applicable to this action.   To hold otherwise would be to render superfluous the tolling provisions for underinsured benefits and meaningless the limitations period imposed for uninsured benefits.  A.M Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622 (1966) (Every provision [of a contract of insurance] is to be given effect, if possible, and no word or clause eliminated as meaningless, or disregarded as inoperative, if any reasonable meaning consistent with the other parts of the policy can be given to it.).   See also, Vargas v. Geico, 45 Conn. L. Rptr. 524 (May 12, 2008, Hiller, J.) (Though notice was provided within three year limitations period, “plaintiff did not file the uninsured motorist claim [the lawsuit] until nearly six years from the date of the accident.).   Cf. Jennings v. Safeco Insurance Co., judicial district of Ansonia–Milford, Dkt. No. CV 075002861 (May 7, 2008, Levin, J.) (Held that a demand letter sent to insurer within contractual limitations period could be a “claim” under policy provisions identical to those at issue in this matter.)

In Romprey v. Safeco Insurance Co., judicial district of New Haven, Dkt. No. CV 085018442, (December 4, 2009, Keegan, J.), the trial court interpreted the identical language at issue in this matter.   Although the plaintiffs in Romprey sought underinsured motorist benefits, not uninsured motorist benefits, the court stated:  “The plain meaning of this language indicates that any action for uninsured or underinsured motorist benefits commenced more than three years after the underlying accident [is] time-barred, unless the case is one involving an underinsured motor vehicle and the two prongs of the tolling provision are satisfied.”  (Emphasis added.)  Id.⁴ The trial court granted summary judgment, which decision was affirmed at Romprey v. Safeco Insurance Co., 129 Conn.App. 481 (2011).   The Appellate Court also discussed these identically worded policy provisions, finding that “[t]he plain language of the policy provides that any action for underinsured motorist benefits commenced more than three years after the underlying accident is time barred, unless the two tolling provisions are satisfied.”  Id. at 491.   The only logical extension of this pronouncement, is that any action for uninsured motorist benefits must be commenced within three years after the underlying accident.   The Appellate Court's interpretation of this provision supports this court's conclusion, and arguably precludes any finding other than that which this court has made.

Our Supreme Court has repeatedly held that when an insurance policy provides for a statutorily permitted limitations period that requires a suit to be brought from the date of the accident, such policy provisions will be enforced.  Voris v. Middlesex Mutual Assurance Company, 297 Conn. 589, 597–600 (2010);  McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 140 (1992);  Hotkowski v. Aetna Life and Casualty Co., 224 Conn. 145, 149–51 (1992).⁵  The plaintiff was required to bring this action within three years of the accident.   This action is therefore time barred.

The plaintiff argues in the alternative that even if the action was required to be filed within three years of the accident, the unique circumstances here excuse the late filing.   He relies upon the time it necessarily took to meet the other policy provisions, i.e. developing proof that the decedent was killed in a car accident and that the hit and run driver did not have insurance.   However, this argument has been raised in and rejected by our appellate courts.

In Tracy v. Allstate Insurance Co., 268 Conn. 281 (2004), the Supreme Court affirmed and adopted as its reasoning the Appellate Court's determination that the plaintiff's failure to comply with the limiting provision was not excused simply because it was caused by her compliance with other terms of the contract.   The Appellate Court determined that the plaintiff could have filed her claim within the specified time period without violating any other provision of the contract and that she was required to do so in order to preserve her claim.  Tracy v. Allstate Insurance, Co., 70 Conn.App. 726, 729 (2003).⁶  In a similar vein, the Supreme Court has also rejected the idea of good faith deviations from contractual time limits.   Relying on the Court's prior “refusal to countenance a good faith deviation from statutory conditions imposed upon recovery of underinsured motorist insurance,” the McGlinchey Court saw “no reason why contractual conditions on underinsured motorist insurance are not equally enforceable.”  McGlinchey v. Aetna Casualty & Surety, Co., supra., 224 Conn. at 139–40, citing, Continental Insurance Co. v. Cebe–Haversky, 214 Conn. 209, 212–13 (1990).

Finally, the plaintiff argues that the late filing should be excused because there is no prejudice to the defendant by the late filing.   This argument has also been rejected by the Supreme Court:  “To the extent that Hotkowski left open the question of whether prejudice should be considered in determining if an insured may be excused from strict compliance with a specific time limit for bringing underinsured motorist claims, we now expressly reject this proposition.”  Vortis v. Middlesex Mutual Assurance, Co., supra., 297 Conn. at 599.

For all of the foregoing reasons, the defendant's motion for summary judgment is GRANTED.

Kari A. Dooley, J.

FOOTNOTES

FN1. During the pendency of the wrongful death case, it was not always clear the status of Adduci's insurance.   Ultimately, it was determined that he did not have any coverage..  FN1. During the pendency of the wrongful death case, it was not always clear the status of Adduci's insurance.   Ultimately, it was determined that he did not have any coverage.

FN2. By letter dated July 10, 2008, Safeco contacted plaintiff's counsel in response to the notice sent.   While leaving open the factual issues, the letter concludes:  “Please be advised that our continued investigation does not waive any of the rights under the terms, conditions or provisions of this policy.”.  FN2. By letter dated July 10, 2008, Safeco contacted plaintiff's counsel in response to the notice sent.   While leaving open the factual issues, the letter concludes:  “Please be advised that our continued investigation does not waive any of the rights under the terms, conditions or provisions of this policy.”

FN3. Safeco maintained that the decedent fell from a rooftop..  FN3. Safeco maintained that the decedent fell from a rooftop.

FN4. The specific issue presented here was not raised in Romprey.   At issue was, inter alia, whether the plaintiffs complied with the tolling provisions..  FN4. The specific issue presented here was not raised in Romprey.   At issue was, inter alia, whether the plaintiffs complied with the tolling provisions.

FN5. In Hotkowski, the policy in issue provided:  “[a]ll claims or suits under Part C. [“Uninsured Motorists Coverage”] must be brought within two years of the date of accident.”  Id. 224 Conn. at 147.   Insofar as the suit was commenced outside this time period, the plaintiff's action was time barred.   Although the language at issue in Hotkowski is identical to the language at issue here, the argument advanced by the plaintiff, that a “claim” was made within three years was not addressed by the Supreme Court.   The Court does note that such a claim was made and rejected by the trial court to the extent that the plaintiff had argued “notice of claim” was the same as a “claim.”.  FN5. In Hotkowski, the policy in issue provided:  “[a]ll claims or suits under Part C. [“Uninsured Motorists Coverage”] must be brought within two years of the date of accident.”  Id. 224 Conn. at 147.   Insofar as the suit was commenced outside this time period, the plaintiff's action was time barred.   Although the language at issue in Hotkowski is identical to the language at issue here, the argument advanced by the plaintiff, that a “claim” was made within three years was not addressed by the Supreme Court.   The Court does note that such a claim was made and rejected by the trial court to the extent that the plaintiff had argued “notice of claim” was the same as a “claim.”

FN6. The Appellate Court granted a motion for reconsideration and thereafter modified its decision regarding the applicability of C.G.S. § 38a–336(g)(1) to the plaintiff's insurance policy.   The modification did not impact the holding cited above.  Tracy v. Allstate Insurance Co., 76 Conn.App. 329 (2003)..  FN6. The Appellate Court granted a motion for reconsideration and thereafter modified its decision regarding the applicability of C.G.S. § 38a–336(g)(1) to the plaintiff's insurance policy.   The modification did not impact the holding cited above.  Tracy v. Allstate Insurance Co., 76 Conn.App. 329 (2003).

Dooley, Kari A., J.