Salvatore Orsini v. Kemper Independence Insurance Company (2014)

Memorandum of Decision Re Motion for Summary Judgment, No. 111

This is a claim for underinsured motorist benefits.   The defendant moves for summary judgment on the grounds there exists no issue of material fact in dispute.   The defendant claims that the plaintiff failed to commence the action within the applicable limitations period and failed to invoke sufficient grounds to toll that limitations period.   The defendant argues it is therefore entitled to judgment as a matter of law.   For the reasons set forth below, the motion is granted.

FACTS

The plaintiff, Salvatore Orsini, commenced this action by service of process on Kemper Independence Insurance Company on June 4, 2012.   In his complaint, the plaintiff alleges the following facts.   On July 6, 2008, the plaintiff was operating a motor vehicle in a northerly direction on Ella Grasso Boulevard, a public highway in New Haven, Connecticut.   While the plaintiff was signaling to make a left turn onto Interstate 95, another driver, Lorelee Grenfell, negligently and carelessly caused her vehicle to run into and strike the rear portion of the plaintiff's vehicle.   The plaintiff sustained various injuries and suffered emotional distress as a result of the collision.   Grenfell was underinsured, carrying coverage amounting to $20,000 per person and $40,000 per occurrence, which the plaintiff exhausted.   At the time of the accident, the plaintiff was insured by the defendant under a policy issued to Paul and Elaine Orsini, which contained a provision under which a covered person could claim up to $100,000 for an accident caused by a legally liable operator who was uninsured or underinsured.   Pursuant to the terms of the policy, the plaintiff seeks compensatory money damages from the defendant.

On February 1, 2013, the defendant filed a motion for summary judgment and accompanying memorandum.   The defendant submits the following evidence in support of its motion:  the defendant's request for admissions regarding the accident and the exhaustion of Grenfell's liability coverage; ¹  a letter from the plaintiff dated November 4, 2009 informing the defendant of his possible underinsured motorist claim;  a letter from the plaintiff dated March 2, 2011 informing the defendant that the liability coverage under Grenfell's policy had been exhausted;  a release signed by the plaintiff on February 25, 2011 exhausting Grenfell's liability coverage;  the plaintiff's withdrawal of his tort claim against Grenfell on June 29, 2010;  and a certified duplicate copy of the insurance policy pursuant to which the plaintiff brings the present action against the defendant.   The plaintiff filed an objection to the motion on September 13, 2013, to which the defendant filed a reply on September 27, 2013.   The court heard oral arguments on the motion and the objection thereto on October 15, 2013.

DISCUSSION

“Practice Book [§ 17–49] provides that summary judgment shall be rendered forthwith if the 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.”  (Internal quotation marks omitted.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013).

“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 ․ When 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 ․ 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, 11, 938 A.2d 576 (2008).

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).  “[S]ummary judgment is proper where the affidavits do not set forth circumstances which 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).

In the present case, the defendant moves for summary judgment on the ground that, as a matter of law pursuant to the terms of the plaintiff's insurance policy, there is no genuine issue of material fact that the plaintiff's underinsured motorist claim is time barred.   The defendant argues that the plaintiff commenced the present suit nearly four years after the accident, thus exceeding the three-year limitations period provided in the insurance policy, and more than 180 days after he exhausted Grenfell's coverage, which prevents the plaintiff from tolling the limitations period.   The plaintiff counters that the question of whether he was properly informed of the three-year limitations period is also an issue of material fact in the case because, in the absence of advice concerning a contrary provision in the policy, the applicable statute of limitations in this case is six years pursuant to General Statutes § 52–576.²  The defendant responds that the plaintiff's argument does not establish an evidentiary foundation as to his lack of knowledge concerning the limitations period in the policy, and that, in any case, the plaintiff had a duty to read the policy and the defendant did not have a duty to notify the plaintiff of its terms.

As noted above, the defendant submits a duplicate copy of the insurance policy in support of its motion, which is certified by Scott Sprague, Forms Manager of Merastar Insurance Company,³ to be a true copy issued to Paul and Elaine Orsini by Kemper Independence Insurance Company for policy periods from January 17, 2008 to July 17, 2008.   As an initial matter, “before a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document ․ by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Internal quotation marks omitted.)  Bruno v. Geller, 136 Conn.App. 707, 714–15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).   Because Sprague is an individual with personal knowledge as to whether the duplicate copy of the policy is a true and accurate representation of what the defendant claims it to be, the copy is understood to be an authentic version of the policy in question.

As to the merits of the motion, the court must first examine the defendant's assertion that the action was not commenced within three years of the date of the collision and it is therefore barred by the policy's three-year limitations period.   The relevant language of the policy provides:  “Any suit brought under uninsured/underinsured motorist coverage must be commenced no later than three years from the date of the accident.   The time limitation may be tolled for an underinsured motorist claim by:  (1) notifying us in writing prior to expiration of the three year period of any claim the ‘insured’ may have for ‘underinsured motorist coverage’;  and (2) commencing suit not more than 180 days from the exhaustion of the limits of liability from all applicable auto bodily injury liability bonds or policies applicable at the time of the accident by settlement or final judgment (after any appeals).”

This type of tolling provision is specifically authorized by General Statutes § 38a–336(g)(1).⁴  The Supreme Court examined the timing requirements in § 38a–336(g)(1) in Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 322, 77 A.3d 726 (2013), where it addressed for the first time “whether the burden [for summary judgment] should remain on the moving party to establish that a party did not act in a timely manner when the statute they are relying on specifically provides for tolling as an alternative method of timeliness.”   The court determined that, to be entitled to summary judgment on timeliness grounds based on § 38a–336(g)(1), the defendant, through its memorandum of law and supporting affidavits, must “establish that there [is] no genuine issue of material fact concerning whether the plaintiffs [have] brought their action within three years, or met the tolling provisions provided for in the statute.”  Id., 324.

In the present case, the defendant moves for summary judgment on the ground that the accident for which the plaintiff seeks underinsured motorist benefits occurred on July 6, 2008, and he did not commence the present action until June 4, 2012.⁵  The defendant argues that the suit does not comport with the timing requirements in the policy, which clearly states that actions for underinsured motorist coverage must be commenced no later than three years from the date of the accident.   The plaintiff does not dispute the date of the accident or the policy's timing requirements in his memorandum in opposition to summary judgment.   There is therefore no genuine issue of material fact that the present action was not commenced within the three-year limitations period provided in the plaintiff's policy.

In order to prevail on summary judgment, according to the court's holding in Romprey, the defendant must next prove that there is no material fact in dispute that the plaintiff has not satisfied the two requirements of the tolling provision in the insurance policy.   The court framed the analysis for this issue as follows:  “actions for underinsured motorist benefits are timely if filed within the limitation period of at least three years from the date of the accident, or if the defendant tolls that period by notifying the insurer of the claim within the limitation period and commences an action or demands arbitration within 180 days from the exhaustion of the limits of liability.”   (Emphasis in original.)  Id., 323.   The court reasoned that “the party moving for summary judgment should not be able to prevail by showing the absence of genuine issue of fact solely with respect to one part of the statute upon which it relies, while ignoring the statutory tolling provisions which provide an alternate means of commencing a timely action.   Accordingly, defendants moving for summary judgment pursuant to § 38a–336(g)(1) should have the initial burden of demonstrating the nonexistence of a genuine issue of material fact with respect to both the three-year limitation period and the statute's compulsory tolling provision.  (Emphasis in original.)  Id.

The Appellate Court examined the first element of the tolling provision in § 38a–336(g)(1) in Dorchinsky v. Windsor Ins. Co., 90 Conn.App. 557, 563, 877 A.2d 821 (2005), providing that “the insured must provide written notice to the insurer of any claim which the insured may have for underinsured motorist benefits.”  (Internal quotation marks omitted.)   The court went on to specify that the language of § 38a–336(g)(1) “plainly and unambiguously requires the insured to inform its insurer not merely that it is pursuing a claim, but rather that it is pursuing a claim ․ for underinsured motorist coverage ․ “ (Emphasis in original;  internal quotation marks omitted.)  Id., 560.   The court held in Dorchinsky that the plaintiff's submission of a letter to the defendant indicating that she “intended to make an insurance claim for all the damages sustained to [her] car and to [her] as caused by the accident of 9/20/1996,” along with a copy of a repair estimate and the accident report, did not constitute sufficient notification of an underinsured benefits claim to toll the limitations period in the policy.  (Internal quotation marks omitted.)  Id.

In the present case, the defendant does not put forth any evidence to dispute that the plaintiff has satisfied the first element of the policy's tolling provision.   On the contrary, the defendant submits a letter from the plaintiff's attorney dated November 4, 2009, which notified the defendant of the plaintiff's “possible underinsured motorist claim,” and included proof of his family's claim for protection against uninsured motorists, a copy of the accident report, a letter from GEICO indicating that the negligent driver holds only a 20/40 policy with several other parties making claims, and copies of the plaintiff's medical bills.   The plaintiff's letter and accompanying documentation provided sufficient notification to the defendant of his possible underinsured motorist claim well within the three-year limitations period provided in the policy.   There is therefore no genuine issue of material fact that the first element of the policy's tolling provision is satisfied.

The defendant argues, however, that the plaintiff has not met the second requirement of the tolling provision because he brought the claim more than 180 days from the date on which he exhausted the limits of liability in Grenfell's insurance policy.   In support of this argument, the defendant submits its request for admissions from the plaintiff, wherein the plaintiff admits that on March 3, 2011, he executed a release of his liability claim against Grenfell, and that he did not commence the present action against the defendant until after May 24, 2012.⁶  Additionally, the defendant submits a copy of the plaintiff's release of all claims against Grenfell and GEICO Insurance Company and a copy of the plaintiff's withdrawal of his tort action against Grenfell, dated June 29, 2010.   Based on the evidence submitted, the latest date that the plaintiff could claim that he exhausted the liability limits in Grenfell's policy is March 15, 2011, when the funds were transferred into the plaintiff's bank account by GEICO.   Given that he did not commence the present action until June 4, 2012, viewing the evidence in the light most favorable to the plaintiff, there is no genuine issue of material fact that he failed to commence the suit for underinsured motorist benefits within the 180–day period mandated in the insurance policy.

As stated above, once the party moving for summary judgment has met its burden to show an absence of genuine issue of material fact in the case, the burden of proof shifts to the opposing party to present evidence that demonstrates the existence of some disputed factual issue.  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.   In the present case, the plaintiff submits no evidence to demonstrate an issue of fact as to whether he commenced suit against the defendant within 180 days of exhausting the liability coverage in Grenfell's insurance policy.   This case is distinguishable from Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 304, 324, where the court reasoned that the burden never shifted to the plaintiffs on this issue because the defendant submitted no evidence that the plaintiffs did not meet the requirements of the tolling provision in the insurance policy.   Here, the evidence presented by the defendant clearly indicates that the plaintiff commenced the present action after the 180–day limitation period, and the plaintiff has failed to submit any evidence to the contrary.   The plaintiff therefore has not satisfied the second prong of the policy's tolling provision, and there is no basis for the court to conclude that the three-year contractual limitations period was tolled.

The one argument that the plaintiff raises in opposition to summary judgment is that there exists a genuine issue of material fact as to whether the defendant advised the plaintiff that the three-year limitations period in the policy applied to the present action.   In support of this argument, the plaintiff submits his own affidavit in which he states that at the time of the accident, he was driving his father's car, and that at no time during the pendency of this case were the provisions of the policy communicated to him.   The plaintiff further states that he is “doubtful” that his father even had a copy of the current policy.   It is the plaintiff's position that, in the absence of advice concerning a contrary provision in the policy, the applicable limitations period for underinsured motorist coverage is that for contracts, which, pursuant to General Statutes § 52–576, is six years.

In support of this claim, the plaintiff cites to Coelho v. ITT Hartford, 251 Conn. 106, 752 A.2d 1063 (1999), where the Supreme Court applied the six-year time limit in § 52–576 to the plaintiffs' action for underinsured motorist benefits.   The plaintiff's reliance on Coelho is misplaced, however, because the court only applied § 52–576 in that case because the policy in question did not contain any language limiting the time in which the plaintiffs could make a demand for arbitration.  Coelho v. ITT Hartford, Superior Court, judicial district of Fairfield, Docket No. CV–97–340223–S (April 30, 1998, Stodolink, J.) [22 Conn. L. Rptr. 110], citing Wynn v. Metropolitan Property & Casualty Ins., 30 Conn.App. 803, 808, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994) (court affirmed the trial court's application of the six-year limitation in § 52–576 to the plaintiff's motion to compel arbitration for underinsured motorist benefits).   The trial court in Coelho reasoned that § 52–576 provides the applicable statute of limitations in underinsured motorist cases where there is no stated time limitation in the policy.  Id. In the present case, the policy in question clearly states that any suit for uninsured or underinsured motorist coverage must be commenced no later than three years from the date of the accident.   As noted above, this limitations period is specifically authorized by General Statutes § 38a–336(g)(1) and is therefore applicable to the plaintiff's claim.

The plaintiff points to no case law or statutory authority to support his argument that the defendant was required to advise him about the time limitations in the policy, and the court is unaware of any such law.   On the contrary, as the defendant notes in its reply brief, “[t]he general rule is that where a person [who is] of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person's] duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently fails to do so ․ This rule is qualified by the intervention of fraud, artifice or mistake not due to negligence.”  (Citation omitted;  internal quotation marks omitted.)   Phoenix Leasing v. Kosinski, 47 Conn.App. 650, 654, 707 A.2d 314 (1998).   In the present case, the plaintiff presents no evidence of coercion, fraud, or mistake affecting his receipt of the insurance policy.   Additionally, as discussed above, the defendant submits with its motion for summary judgment a copy of the policy in question, accompanied by a sworn statement from its employee attesting that the copy represents the policy that was in effect at the time of the plaintiff's accident.   The plaintiff offers no evidence to contradict the authenticity of this document or to indicate that the policy in effect at the time of the accident, and under which he is bringing suit, did not include a three-year limitation period.   Accordingly, there is no genuine issue as to the language of the policy in effect at the time of the accident and that it included the three-year limitations period on which the defendant relies in his motion for summary judgment.

Based on the evidence submitted by the defendant, it is clear that there exists no genuine issue of material fact that the plaintiff did not bring the present action within the applicable limitations period or invoke sufficient grounds to toll that period.   Because the plaintiff is unable to provide any evidentiary basis for his argument that the three-year limitation should not apply to the present case, the defendant's motion for summary judgment is granted.

CONCLUSION

For the foregoing reasons, the motion for summary judgment is granted.

By The Court,

Nazzaro, J.

FOOTNOTES

FN1. The defendant filed a request for admissions on December 19, 2012.   Because the plaintiff did not file a response within thirty days, each matter therein of which an admission is requested is deemed admitted.   Practice Book § 13–23(a)..  FN1. The defendant filed a request for admissions on December 19, 2012.   Because the plaintiff did not file a response within thirty days, each matter therein of which an admission is requested is deemed admitted.   Practice Book § 13–23(a).

FN2. General Statutes § 52–576 provides in relevant part:  “No action for an account, or 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 ․”.  FN2. General Statutes § 52–576 provides in relevant part:  “No action for an account, or 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 ․”

FN3. Merastar Insurance Company was purchased by a subsidiary of Unitrin, Inc., which is now doing business as Kemper Corporation, in 2007..  FN3. Merastar Insurance Company was purchased by a subsidiary of Unitrin, Inc., which is now doing business as Kemper Corporation, in 2007.

FN4. General Statutes § 38a–336(g)(1) provides:  “No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made 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, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.”.  FN4. General Statutes § 38a–336(g)(1) provides:  “No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made 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, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.”

FN5. The defendant states in its memorandum in support of the motion for summary judgment that the plaintiff commenced his suit for underinsured motorist benefits on May 24, 2012, which is the filing date on the plaintiff's complaint (although the complaint was not actually returned to court until July 9, 2012).   The commencement of civil actions is governed by General Statutes § 52–45a, which provides in relevant part:  “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator ․” The date of commencement of the present action is therefore June 4, 2012, the date on which the defendant was served..  FN5. The defendant states in its memorandum in support of the motion for summary judgment that the plaintiff commenced his suit for underinsured motorist benefits on May 24, 2012, which is the filing date on the plaintiff's complaint (although the complaint was not actually returned to court until July 9, 2012).   The commencement of civil actions is governed by General Statutes § 52–45a, which provides in relevant part:  “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator ․” The date of commencement of the present action is therefore June 4, 2012, the date on which the defendant was served.

FN6. As noted above, because the plaintiff did respond to the defendant's request for admissions within thirty days, each matter therein is deemed admitted.  Practice Book § 13–23(a)..  FN6. As noted above, because the plaintiff did respond to the defendant's request for admissions within thirty days, each matter therein is deemed admitted.  Practice Book § 13–23(a).

Nazzaro, John J., J.