Robert Bunnell v. Beisler Ins. Agency (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 107)

FACTS

The plaintiff, Robert Bunnell, commenced the present action on October 30, 2008 by delivering service of process to the state marshal who served the process on the defendants, Beisler Insurance Agency (the insurance company) and Paul Beisler (the insurance agent) on November 28, 2008.   In the two-count complaint filed on December 10, 2008, the plaintiff alleges the following facts.   The plaintiff was injured in a physical altercation on February 25, 2000, with a patron at Sonny's Café, LLC (the insured), which held an insurance policy with the insurance company for the operation of a bar and grill, and commenced an action against the insured business and its owners on March 7, 2002.¹  The insured subsequently notified the defendants of the action, but they declined to defend and indemnify the insured in that action on the ground that the plaintiff's claims were explicitly excluded by the policy.   To resolve that action, the insured stipulated to the entry of a judgment against it in the amount of $50,000.   The insured entered this agreement subject to the plaintiff's agreement not to execute against the judgment, and the insured's assignment to the plaintiff of its potential causes of action against the defendants.   Thus, the plaintiff has stepped into the shoes of the insured.   According to the parties, the incident in which the plaintiff was injured occurred on February 25, 2000, and the plaintiff and the insured entered into the stipulated agreement on October 31, 2005.

The first count of the complaint in the present action sounds in breach of contract—the plaintiff alleges that he has been injured to the extent of $50,000 because the defendants failed to provide adequate insurance to its insured pursuant to their contractual obligation.   In the second count, the plaintiff alleges that the defendants misrepresented the nature and extent of the insurance policy coverage purchased by the insured.   In their answer (# 102), the defendants assert two special defenses:  (1) litigation may not be assigned, and thus, the insured's assignment to the plaintiff of its causes of action is illegal;  and (2) the plaintiff's cause of action is barred by the applicable statute of limitations.

The defendants filed a motion for summary judgment as to the entire complaint and a memorandum in support thereof (# 107) on July 20, 2012.   The defendants move for summary judgment on the grounds that there is no genuine issue of material fact because they are not obligated to pay an improperly assigned stipulated judgment that is illegal for lack of privity between the defendants and either party to the judgment, and the claims alleged in the plaintiff's complaint are time barred.   The defendants have not submitted any evidence in support of their position.

In his November 27, 2012 objection to the defendants' motion for summary judgment (# 123), the plaintiff argues that the assignment is proper, and the applicable statutes of limitation raise no bar to his claims.   The plaintiff also acknowledges that the insurance policy clearly excluded coverage for claims pertaining to patron-on-patron violence, and thus, the plaintiff does not assert that the insurance company acted in bad faith in denying to cover his claim.   The plaintiff has submitted the following evidence in support of his objection:  (1) a copy of the October 31, 2005 stipulated judgment (Pl.'s Ex. A);  and (2) an affidavit in which Mark Brown, owner of the insured business, attests that he wanted comprehensive coverage for his business, including protection against claims for patron-on-patron violence, and relied on the insurance agent's representations regarding the nature and extent of his business' insurance coverage (Pl.'s Ex. B).

At short calendar on January 7, 2013, the parties argued this matter, and the defendants abandoned their first special defense, conceding that the insured could assign to the plaintiff its causes of action against the defendants.   Also at oral argument, the court admitted into evidence a November 20, 2000 letter (Ct.'s Ex. 1) that the insurance company's counsel sent to the owners and operators of the insured business.   In this letter, counsel explains that the insurance company declined to cover the plaintiff's injuries pursuant to the insurance policy's assault and battery provision, which excludes coverage for “ ‘bodily injury’ or ‘property damages' expected or intended from the standpoint of any insured;  or arising out of an assault and battery ․ or out of any act or admission in connection with prevention and suppression of an assault and battery ․” In the letter, counsel also states that “[the company's] investigation revealed that the injuries alleged by [the plaintiff] ․ were the results of the prevention or suppression of an assault and battery,” and thus, the insurance company denied coverage for the plaintiff's claim on these grounds.   This correspondence indicates that the insured's policy had a policy period of February 3, 2000 through February 3, 2001.

As per a request by the court, Wilson, J., the parties subsequently submitted briefs on the following issues:  (1) the defendants submitted a brief on January 23, 2013, regarding whether the amount of a stipulated judgment must be found to be “reasonable” before a party in the defendants' position can be bound by such judgment (# 126);  and (2) the plaintiff submitted a brief on February 20, 2013, regarding when the statute of limitations on the insured's claim for misrepresentation, which was purportedly assigned to the plaintiff, began to run (# 129).

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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “[A] party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.”   (Citations omitted;  internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 624–26, 57 A.3d 391 (2012).  “An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Id., 626–27.   Moreover, “[a] motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”  (Internal quotation marks omitted.)  Id., 632.

The defendants in the present case initially argued that they are entitled to judgment as a matter of law because the purported assignment was illegal for lack of privity between the defendants and either party to the stipulated judgment.   Moreover, the defendants argued in their post-trial brief that a stipulated judgment must be found to be reasonable by the trier of fact before a party is bound by such a judgment.   According to the defendants, binding them to the stipulated judgment without proof of its reasonableness, such that the number agreed to by the plaintiff and the insured is shown not to have been arbitrarily chosen, would be inequitable.   Notwithstanding this argument, the defendants conceded at oral argument that the insured's claims were assignable.

The defendants also assert, however, that these claims are time barred under both a three-year statute of limitations in tort and the six-year statute of limitations in contract applies because the incident that caused injury to the plaintiff occurred in February 2000, which is more than six years prior to the defendants' June 2006 receipt of notice of the details of the stipulated judgment, and the filing of the present action, which was commenced in October 2008.

As previously stated, the plaintiff objects to both grounds of the defendants' motion, asserting at oral argument that the assignment was proper and that the applicable statutes of limitation raise no bar to his claims.   With regard to the latter, the plaintiff submitted a post-trial brief and relies on General Statutes § 52–576.²  The plaintiff argues that this statutory provision indicates that the plaintiff did not have a cause of action against the defendants until the insured's cause of action was assigned to him, which is the point at which the plaintiff became legally capable of bringing the present action.   He asserts that he became legally capable of bringing this action on the date of the October 31, 2005 assignment, and thus, this October 30, 2008 action was properly brought within three years of that date.

In addition to the allegation of breach of contract, counsel for the plaintiff asserted at oral argument that the defendants also breached the covenant of good faith and fair dealing.   This cause of action was not pleaded, however, and thus, was not properly presented for the court's consideration.   See McCann Real Equities v. McDermott, 93 Conn.App. 486, 490, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006) (“[i]t is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint” (internal quotation marks omitted)).

The following issues will be discussed in seriatim.   First, whether the causes of action that the plaintiff purports were assigned to him by the insured are assignable;  second, statutes of limitation as they pose limits on the assignability of causes of action;  and lastly, the reasonableness of the stipulated judgment.

I

THE ASSIGNMENT OF CAUSES OF ACTION

In the present case, while counsel for the defendants conceded at oral argument that the insured's causes of action against the defendants were assignable to the plaintiff, the court will address the assignability of causes of action sounding in breach of contract and misrepresentation.  “Under the hornbook law of assignments, [t]he assignee of a chose in action stands in the shoes of the assignor ․ Indeed, [s]uccession by an assignee to exclusive ownership of all or part of the assignor's rights respecting the subject matter of the assignment, and a corresponding extinguishment of those rights in the assignor, is precisely the effect of a valid assignment.”  (Citations omitted;  internal quotation marks omitted.)  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 228, 828 A.2d 64 (2003).

A

Count One:  Breach of Contract

Our Supreme Court “ha[s] recognized that the assignment of contract claims is permissible ․ [T]he modern approach to contracts rejects traditional common-law restrictions on the alienability of contract rights in favor of free assignability of contracts ․ Common-law restrictions on assignment were abandoned when courts recognized the necessity of permitting the transfer of contract rights.   The force[s] of human convenience and business practice [were] too strong for the common-law doctrine that [intangible contract rights] are not assignable.”  (Citations omitted;  internal quotation marks omitted.)   Stearns & Wheeler, LLC v. Kowalsky Brothers, Inc., 289 Conn. 1, 8, 955 A.2d 538 (2008).

In the present case, the plaintiff alleges in count one of his complaint that he has been injured to the extent of $50,000, which is the amount of the stipulated judgment against the insured, because the defendants failed to provide the insured with adequate insurance pursuant to their contractual obligation.   Because our Supreme Court has recognized that contract claims are generally assignable and the defendants have conceded the same, the insured's claim for breach of contract is assignable to the plaintiff.

B

Count Two:  Misrepresentation

While contract claims are freely assignable, the same cannot be said for claims sounding in tort.  “We have prohibited ․ the assignment of tort claims.”  Stearns & Wheeler v. Kowalsky Bros., supra, 289 Conn. 8. “[F]ew legal principles are as well settled, and as universally agreed upon, as the rule that the common law does not permit assignments of causes of action to recover for personal injuries.”  (Internal quotation marks omitted.)  Gurski v. Rosenblum & Filan, LLC, 276 Conn. 257, 267, 885 A.2d 163 (2005).   It does not follow, however, that tort causes of action that are based on a party's pecuniary interests are always unassignable—there is a “gray area of tort claims based on injury to property interests ․ [t]he assignability of [which] ․ must be resolved on the basis of public policy.”  (Internal quotation marks omitted.)  Esposito v. CPM Ins. Services, Inc., 50 Conn.Sup. 283, 294, 922 A.2d 343 [40 Conn. L. Rptr. 787] (2006).

The property interests that were sought to be assigned in Gurski v. Rosenblum & Filan, LLC, supra, were a legal malpractice claim and the potential proceeds from that claim.   The plaintiff in Gurski was a physician, and the underlying action was a medical malpractice action that a patient brought against him.   After a default judgment was entered against him in that action, the physician attempted to assign to the patient a legal malpractice claim that he intended to bring against the attorney who represented him in the medical malpractice litigation.   In finding that the physician could not assign his potential legal malpractice claim to the patient, our Supreme Court stated:  “[The] assignment of such a claim to the adverse party in the underlying action [involved] ․ the potential for a reversal of roles that could undermine the legitimacy of the malpractice judgment.”  Gurski v. Rosenblum & Filan, LLC, supra, 276 Conn. 272.   Many jurisdictions are in agreement, “not[ing] that such assignments create an opportunity and incentive for collusion” with respect to parties that lack sufficient funds to pay the judgments that are entered against them.  Id., 273.   Such assignments “necessitate a duplicitous change in the positions taken by the parties in [the] antecedent litigation.”  (Emphasis added;  internal quotation marks omitted.)  Id., 277.   Overall, although “[t]he wrong to [the plaintiff in Gurski ], whether it be characterized as tort or contract, was plainly to his property interests rather than his person”;  Esposito v. CPM Ins. Services, Inc., supra, 50 Conn.Sup. 293;  the court's policy concerns prevented the assignment of the claim.

The cause of action that is sought to be assigned in the present case is the insured's cause of action for misrepresentation against the insurers.   Therefore, while the plaintiff does not plead specifically whether the alleged misrepresentation was intentional or negligent, he clearly seeks to claim an action in tort.   The plaintiff alleges that the defendants misrepresented the nature and extent of the coverage that they sold to the insured, and that the insured relied on that representation in negotiating the subsequent insurance contract.   Again, the present injury that the plaintiff alleges was assigned to him is not based on personal injury, but rather is based on the defendants' alleged misrepresentations to the insured in the formation of an insurance contract, which allegedly affected the insured's pecuniary interests.   Thus, absent a showing that the misrepresentation claim at issue is not assignable on the grounds of public policy, the claim is assignable.

With regard to the public policy issues that concerned our Supreme Court in Gurski, there are no such concerns in the present case.   Here, the plaintiff has always maintained an adversarial relationship with the insured and with the defendants, first as an injured party who was trying to obtain a damages award against the insured and currently as the purported assignee of the insured party that the defendants allegedly failed to adequately insure.   There is, therefore, no duplicitous change in position of a nature that concerned the Gurski court.   Thus, the insured's cause of action for misrepresentation is assignable.

II

STATUTES OF LIMITATION

In addition to public policy limitations on assignability, the assignability of these causes of action may be restricted by additional considerations.   If, for example, the applicable statutes of limitation had already run on an assignor's potential claims before the date of assignment, those claims were not actually transferred to the purported assignee.

“The question of whether a party's claim is barred by the statute of limitations is a question of law”;  (internal quotation marks omitted) Watts v. Chittenden, 301 Conn. 575, 582, 22 A.3d 1214 (2011);  and “[s]ummary judgment may be granted where the claim is barred by the statute of limitations.”   Doty v. Mucci, 238 Coun. 800, 806, 679 A.2d 945 (1996).   “[S]ummary judgment is proper [on this ground] where the ․ [evidence] do[es] not set forth circumstances [that] ․ would serve to avoid or impede the normal application of the particular limitations period”;  (internal quotation marks omitted) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006);  and “material facts concerning the statute of limitations [a]re not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

“Statutes of limitation implement the public policy of limiting the legal consequences of a wrong to a reasonable time after an event occurs.   It is well established that the purpose of [a] statute of limitation or of repose is ․ to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence ․” (Internal quotation marks omitted.)  Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 684, 986 A.2d 290 (2010).

An additional limitation on the assignability of claims is the well settled principle that “[the] legal rights [of] a[n] assignee [a]re the same and not more than those of [the assignor] ․” Mereness v. DeLemos, 91 Conn. 651, 657, 101 A. 8 (1917).  “[A]n assignee stands in the shoes of the assignor ․ An assignee has no greater rights or immunities than the assignor would have had if there had been no assignment.”  (Emphasis added;  internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466, 976 A.2d 23 (2009).   Furthermore, “the assignee of a chose in action takes it subject to equities and defenses which could have been set up against it in the hands of the assignor, provided they have arisen before receipt of notice of the assignment.”  Bridgeport–City Trust Co. v. Niles–Bement–Pond Co., 128 Conn. 4, 10, 20 A.2d 91 (1941).

It necessarily follows, therefore, that an assignor can only transfer what the assignor has, and the assignee can only purport to have been assigned rights that the assignor had on the day of transfer.   Therefore, notwithstanding the assignability of the claims at issue in the present case, whether these claims had already expired before the date of the assignment or the date of the commencement of the present suit are dispositive issues.   The defendants are permitted to raise the applicable statutes of limitation as a defense because the plaintiff took the assigned causes of action subject to any defenses that could have been established against the assignor insured before the assignment.

A

Count One:  Breach of Contract

The plaintiff argues that § 52–576, which pertains to “actions for account or on simple or implied contracts,” indicates that the plaintiff had no cause of action against the defendants until he became legally capable of bringing the present action on October 31, 2005, the date of the stipulated judgment.   Section 52–576 provides in relevant part:  “(a) No action ․ on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section. (b) Any person legally capable of bringing any such action at the accruing of the right of action may sue at any time within three years after becoming legally capable of bringing the action ․” The plaintiff argues that, pursuant to this statutory provision, his October 30, 2008 action was timely brought.

“The law concerning when a breach of contract action accrues is well settled ․ [I]n an action for breach of contract ․ the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted ․ Although the application of this rule may result in occasional hardship, [i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action ․ While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued.   The true test is to establish the time when the plaintiff first could have successfully maintained an action.”  (Citations omitted;  internal quotation marks omitted.)  Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 153, 810 A.2d 259 (2002).   Capability is a question of fact.   See Beach v. First National Bank, 107 Conn. 1, 6, 138 A. 905 (1927).

With regard to the assignment of a cause of action sounding in contract that could have been timely brought on the day that it was assigned, the six-year limitations period of § 52–576 is not tolled for the assignee of that cause of action.   This practice is consistent with the principle that an assignee of a cause of action obtains only the rights that the assignor would have been able to exercise, and not more.   Our case law demonstrates that § 52–576 is only tolled where:  the defendant's injurious actions were part of a continuing course of conduct;  see Watts v. Chittenden, supra, 301 Conn. 583–85;  the defendant fraudulently concealed the plaintiff's right to assert a cause of action;  see Bartone v. Robert I. Day Co., Inc., 232 Conn. 527, 533, 656 A.2d 221 (1995);  the court must wait for the resolution of a related action;  see Fontanella v. Marcucci, 89 Conn.App. 690, 705, 877 A.2d 828, cert. granted, 275 Conn. 907, 882 A.2d 670 (2005), withdrawn, March 28, 2006;  or equity requires the statute of limitations to be tolled because the plaintiff was impeded from filing suit within the limitations period, or, despite his due diligence, the plaintiff was ignorant of the existence of his cause of action.   See Gager v. Sanger, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 030182451 (February 25, 2005, Schuman, J.);   H.J. Kelly & Associates v. Meriden, Superior court, judicial district of New Haven, Docket No. CV 03 0285781 (January 17, 2008, Taylor, J.).   The plaintiff in the present case has not alleged that any of these tolling exceptions are applicable, and the evidence fails to indicate that the plaintiff's potential breach of contract action may be tolled.   Therefore, for the purpose of the following analysis, the court will regard the time of accrual as the time at which the action could have been successfully maintained.

In the present case, the plaintiff is the purported assignee of a breach of contract claim.   As previously stated, however, an assignee has no greater rights than the assignor would have had if there had been no assignment, and those rights are subject to the same defenses.   As a result, whether the claim for breach of contract is time barred must be analyzed with regard to when the assignor's cause of action accrued.   The evidence demonstrates that a breach of contract action could have been successfully maintained by the insured when it learned that its business was not covered for patron-on-patron violence.   The November 20, 2000 letter that the court admitted as evidence indicates that the insured had notice on this date that it was not covered for its claim, and thus, the insured could have successfully maintained an action on this date, which is more than six years prior to the October 30, 2008 commencement of this action for breach of contract against the defendants.   As a result, this claim was already time barred under § 52–576(a) by the time the plaintiff brought the present action on October 30, 2008.

While the plaintiff argues that § 52–576(b) preserves his cause of action because he was not legally capable of bringing an action until the date of the assignment and entry of judgment in October 2005, he does not cite to any authority for this argument and his logic is flawed.   As previously noted, the issue is whether the insured was legally capable of bringing an action at the accrual of the right of action because the plaintiff's legal rights are the same and not more than the insured's rights, and are subject to the same defenses that could have been asserted against the insured.   To find that this subsection must be considered from the perspective of the assignee would only diminish the purpose of having a statute of limitations and the policy of giving parties the ability to plan their affairs with reasonable certainty.   Therefore, in the present case, the legal capability of the insured, not the legal capability of the plaintiff, is relevant in considering whether § 52–576(b) preserves the plaintiff's cause of action for breach of contract.   Nevertheless, there is no evidence that the insured was legally incapable of bringing an action for breach of contract on or after November 20, 2000.   Section 52–576(b) is, therefore, inapplicable to the present action.

There are no questions of fact that would impede the application of the limitations period with regard to the relevant date of accrual.   The November 20, 2000 letter makes clear that the insured was apprised of its lack of coverage for the plaintiff's personal injury claim on that date.³  The material facts concerning the statute of limitations are not in dispute, and there is no genuine issue of material fact regarding whether the insured's potential claim for breach of contract had expired before the plaintiff's attempt to pursue the claim in October 2008.

B

Count Two:  Misrepresentation

“[O]ur Supreme Court has held that the three-year statute of limitations of § 52–577 ⁴ is applicable to all tort actions other than those excepted therefrom by [General Statutes] § 52–584 ⁵ or other sections ․” (Internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 299, 830 A.2d 346 (2003).  “The three-year limitation of § 52–577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52–577 and enumerated in § 52–584 or another section.”  Collens v. New Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825 (1967).   When “the conduct of the defendant [i]s neither negligent nor reckless and wanton but [rather] intentional ․ then General Statutes § 52–584, by its terms does not apply to th[e] action;  rather General Statutes § 52–577, which requires actions founded upon a tort to be brought within three years from the date of the act or omission complained of, would govern.”  Alteiri v. Colasso, 168 Conn. 329, 331–32, 362 A.2d 798 (1975).”

The cause of action that is sought to be assigned is a cause of action for misrepresentation, but the complaint fails to specify whether the plaintiff's claim is one for intentional misrepresentation or negligent misrepresentation.   Therefore, whether the plaintiff's claim against the defendants is time barred will be assessed under § 52–577, with regard to a claim for intentional misrepresentation and also under § 52–584, with regard to a claim for negligent misrepresentation, respectively.

1

Intentional Misrepresentation

“[T]he three year limitations period of § 52–577 applies to all actions based on a tort unless there has been a specific statutory exclusion.”   Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988).  “[S]ection 52–577 is an occurrence statute” (emphasis added);  Valentine v. LaBow, 95 Conn.App. 436, 444, 897 A.2d 624 (2006), cert. denied, 280 Conn. 933, 909 A.2d 963 (2010);  and “is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues.”  (Internal quotation marks omitted.)  Piteo v. Gottier, 112 Conn.App. 441, 445, 963 A.2d 83 (2009).  “[The statute] provides:  ‘No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.’   In construing ․ [the] general tort statute of limitations ․ [our Supreme Court] ha[s] concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred ․ The date of the act or omission complained of is the date when the ․ conduct of the defendant occurs ․” (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Watts v. Chittenden, 301 Conn. 575, 583, 22 A.3d 1214 (2011).

“The three-year limitation period of § 52–577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury.”  (Internal quotation marks omitted.)  Valentine v. LaBow, supra, 95 Conn.App. 445.   Overall, “[w]hen conducting an analysis under § 52–577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.”  (Internal quotation marks omitted.)  Id., 446–47.

“The relevant date of the act or omission complained of, as that phrase is used in § 52–577, is the date when the negligent conduct of the defendant occurs and not the date when the plaintiffs first sustain damage ․ Ignorance of his rights on the part of the person against whom the statute has begun to run, will not suspend its operation.”  (Citations omitted;  internal quotation marks omitted.)  Piteo v. Gottier, supra, 112 Conn.App. 445–46.  “[T]he occurrence of an act or omission ․ that causes a direct injury, however slight, may start the statute of limitations running against the right to maintain an action even if the plaintiff is not aware of the injury, and even if all resulting damages have not yet occurred;  it is sufficient if nominal damages are recoverable for the breach or for the wrong, and where that is the case, it is unimportant that the actual or substantial damage is not discovered or does not occur until later.”  (Internal quotation marks omitted.)  Burke v. Klevan, 130 Conn.App. 376, 381, 23 A.3d 95, cert. denied, 302 Conn. 936, 28 A.3d 990 (2011).

In addition, as previously noted, “General Statutes § 52–577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ․ Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed ․ [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the 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 bringing 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.'  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139–40, 907 A.2d 1220 (2006).  ‘Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing.’  Watts v. Chittenden, 115 Conn.App. 404, 412, 972 A.2d 770, cert. granted on other grounds, 293 Conn. 932, 981 A.2d 1077 (2009).”  Stuart v. Snyder, 125 Conn.App. 506, 510, 511 (2010).

“Although ․ the continuing course of conduct doctrine can toll the statute of limitations set forth in § 52–577 ․ the plaintiff did not invoke this doctrine either in his complaint or in his pleading in avoidance.   See Practice Book § 10–57 (a “[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply”).   As we stated in Beckenstein Enterprises–Prestige Park, LLC v. Keller, 115 Conn.App. 680, 688, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009), ‘the continuing course of conduct doctrine is a matter that must be pleaded in avoidance of a statute of limitations special defense.’   “ Flannery v. Singer Asset Finance Company, 128 Conn.App. 507, 514, 17 A.3d 509 (2011).   Here, there is no evidence that the plaintiff invoked the doctrine of continuing course of conduct, by alleging it in his complaint or in a pleading in avoidance of the defendant's special defense.

The owner of the insured business asserted that he relied on the insurance agent's representations when he agreed to the coverage that he eventually received for his restaurant, and that he was unfamiliar with policy coverage at the time that the contract was formed.   Thus, the act or omission complained of pertains to the insurance agent's conduct during contract formation, which occurred at the beginning of the parties' relationship.   Any representations that the insurance agent made in forming the contract were completed upon the contract's formation, which is when the statute of limitations began to run.   While neither party has offered evidence regarding the specific date upon which the insurance contract was formed, the November 20, 2000 letter indicates that the insured's policy with the insurance company was in effect during the policy period February 3, 2000 through February 3, 2001, which suggests that the insurance contract was formed on or before February 3, 2000.   It does not matter when the insured discovered the relevant policy exclusion, because § 52–577 is an occurrence statute that takes into consideration the date of the wrongful conduct alleged in the complaint, i.e., the insurance agent's representations that were made on or before February 3, 2000, and the date upon which the present action was commenced, i.e., October 30, 2008.   In applying the three-year statute of limitations of § 52–577, the insured's potential claim for misrepresentation had already expired before the plaintiff brought the present action in 2008.   Indeed, the insured's cause of action was time barred on the date that it purportedly assigned this interest to the plaintiff on October 31, 2005.   As previously stated, one cannot purport to assign more than one has, and thus, the insured could not have assigned a cause of action that was barred by the statute of limitations.   The plaintiff's opportunity to bring suit under a theory of intentional misrepresentation expired on or before February 3, 2003.

2

Negligent Misrepresentation

If the plaintiff's claim is, however, one of negligent misrepresentation, § 52–584 applies.  “General Statutes § 52–584 is the statute of limitations applicable in an action to recover damages for injury ․ caused by negligence ․” (Internal quotation marks omitted.)  Johnson v. North Branford, 64 Conn.App. 643, 648, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).   Notably, “[§ 52–584] imposes two specific time requirements on prospective plaintiffs.   The first requires a plaintiff to bring an action ‘within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․’ The second provides that in no event shall a plaintiff bring an action ‘more than three years from the date of the act or omission complained of ․’ The statutory clock on this three year time limit begins running when the negligent conduct of the defendant occurs ․ Consequently, an action may be time barred even if no injury is sustained during the three years following a defendant's act or omission.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Like § 52–577, “[s]ection 52–584 may be tolled, however, where there is evidence of the defendants' continuous course of conduct, thereby allowing a plaintiff to commence his or her lawsuit at a later date ․” (Internal quotation marks omitted.)   Id., 648–49 n.11. Our Appellate Court has found, however, that where a “[plaintiff] ha[s] neither pleaded nor produced any evidence of a special relationship ․ or any subsequent wrongful conduct ․ related to the complained of act that would have tolled § 52–584 ․ [that] the continuous course of conduct doctrine is inapplicable.”  Id.

With regard to the two-year time requirement, the insured's purported injury, the insured's lack of coverage due to the insurance agent's alleged misrepresentation, was sustained on or before the February 3, 2000 start of the policy period.   At the very least, the insured should have discovered this alleged injury by November 20, 2000, the date upon which it was informed that its insurance policy did not include coverage for the plaintiff's personal injury claim.   Therefore, under the two-year time requirement, the insured's potential negligent misrepresentation claim expired, at the latest, in November 2002.

This claim is also barred with regard to the three-year time requirement.   Again, the act or omission complained of in the present case is the insurance agent's alleged misrepresentations in the formation of an insurance contract.   This act must necessarily have occurred on or before the February 3, 2000 start of the insurance policy period, as the insured was a party to the insurance contract on this date.   Therefore, the insured's potential negligent misrepresentation claim expired on or before February 3, 2003 pursuant to the three-year time requirement.

Both of the insured's potential claims for misrepresentation expired before the October 31, 2005 assignment, and thus, the insured did not, and could not, assign to the plaintiff its right to bring a misrepresentation claim.   With regard to potentially tolling the limitations period, the plaintiff has not alleged that the statute of limitation should be tolled or that the defendants' allegedly injurious behavior was continuous, which renders the continuous course of conduct doctrine inapplicable.   Nor has the plaintiff alleged this doctrine in a pleading in avoidance of the defendant's special defense.

The evidence does not present any circumstances that would otherwise impede the application of the limitations period.   The plaintiff is entitled to exercise the same rights that the assignor insured would have been entitled to exercise had there been no assignment, and is not entitled to exercise additional rights.   Moreover, the plaintiff took these rights subject to the same defenses that the defendants could have asserted against the insured.   Accordingly, the plaintiff's potential claims for misrepresentation were time barred before he commenced this action on October 30, 2008.

III

REASONABLENESS OF THE STIPULATED JUDGMENT

The court need not address the argument that the stipulated judgment needs to be reasonable in order to be enforceable because the court has granted summary judgment on counts one and two, finding that both claims are time barred under their respective statutes of limitation.

CONCLUSION

For the foregoing reasons, the defendants are entitled to judgment as a matter of law and therefore their motion for summary judgment is granted on counts one and two.

Wilson, J.

FOOTNOTES

FN1. Bunnell v. Sonny's Café, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0280040..  FN1. Bunnell v. Sonny's Café, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0280040.

FN2. General Statutes § 52–576 provides in relevant part:  “(a) No action ․ on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.(b) Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any time within three years after becoming legally capable of bringing the action ․”.  FN2. General Statutes § 52–576 provides in relevant part:  “(a) No action ․ on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.(b) Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any time within three years after becoming legally capable of bringing the action ․”

FN3. It is important to note that the plaintiff's claim is still untimely if the court regards the March 7, 2002 filing of the plaintiff's action against the insured to be the date upon which the insured was injured.   If this date is regarded as the date upon which the insured was first able to maintain a cause of action, the plaintiff's claim for breach of contract expired in March 2008, which is seven months before the present action was filed..  FN3. It is important to note that the plaintiff's claim is still untimely if the court regards the March 7, 2002 filing of the plaintiff's action against the insured to be the date upon which the insured was injured.   If this date is regarded as the date upon which the insured was first able to maintain a cause of action, the plaintiff's claim for breach of contract expired in March 2008, which is seven months before the present action was filed.

FN4. General Statutes § 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”.  FN4. General Statutes § 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

FN5. General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury ․ caused by negligence, or by reckless or wanton misconduct, or by malpractice ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”.  FN5. General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury ․ caused by negligence, or by reckless or wanton misconduct, or by malpractice ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

Wilson, Robin L., J.