LLC v. Thomas Tabellione (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 122

PROCEDURAL HISTORY

On August 2, 2012, the plaintiff D & M Screw Machine Products, LLC (D & M), filed a complaint alleging legal malpractice against the defendant, Thomas Tabellione.   On February 20, 2013, Tabellione filed a motion to implead the third-party defendant, Carolina Casualty Insurance Company (Carolina Casualty), pursuant to General Statutes § 52–102a and Practice Book § 10–11, and a third-party complaint against Carolina Casualty.   D & M filed a third-party complaint against Carolina Casualty on April 29, 2013.   Carolina Casualty filed an answer to Tabellione and D & M's third-party complaints on May 16 and 21, 2013, respectively.

On August 2, 2013, Carolina Casualty filed a motion for summary judgment.   In support of its motion, Carolina Casualty filed a memorandum of law and submitted the following evidence:  (1) a copy of Tabellione's malpractice insurance policy (policy number:  9969235), (2) a copy of D & M's claim against Tabellione, (3) a copy of a letter dated February 10, 2012, and information that Tabellione submitted to Carolina Casualty seeking coverage, (4) a copy of Tabellione's motion to implead Carolina Casualty, Tabellione's third-party complaint against Carolina Casualty, and D & M's complaint against Tabellione, (5) a copy of a letter dated March 1, 2012, from Carolina Casualty to Tabellione acknowledging their receipt of his letter seeking coverage, and (6) a copy of a letter dated March 23, 2012, that Carolina Casualty sent to Tabellione denying coverage.   On August 9, 2013, Tabellione filed a motion for extension of time, requesting an extension of thirty days to September 9, 2013, to respond to Carolina Casualty's motion for summary judgment.   Tabellione filed an objection to the motion on October 31, 2013, and later filed a memorandum of law in opposition to the motion on November 8, 2013, with the following evidence attached:  (1) a copy of the notice indicating a scheduling conference was set for July 31, 2013, and (2) a copy of the notice indicating a trial date was set for May 14, 2014.   Carolina Casualty subsequently filed a reply memorandum, and the matter was heard at the short calendar on December 16, 2013.

DISCUSSION

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.”  Practice Book § 17–49.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   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 ... 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.”  (Emphasis added;  internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In the present case, Carolina Casualty argues that there is no genuine issue of material fact that its policy affords no coverage for D & M's malpractice claim against Tabellione because Tabellione's written notice of claim was untimely, and in Connecticut, the reporting requirements of a claims-made-and-reported policy define the scope of the policy's coverage.   It argues that Tabellione's policy was issued for the policy period August 2, 2010 to August 2, 2011, and that the policy clearly stated “[t]his policy shall pay on behalf of the Insured all Damages and Claims Expense that the Insured shall become legally obligated to pay, arising from any Claim first made against the Insured during the Policy Period and reported to the Insurer in writing during the Policy Period or within 60 days thereafter ․” (Emphasis added.)   Carolina Casualty does not dispute that the malpractice claim was first made against Tabellione by D & M within the policy period on July 8, 2011, but argues that the claim was only first reported in writing to Carolina Casualty on February 29, 2012, well beyond the sixty-day post-policy period deadline.

Tabellione first argues that the motion for summary judgment should be denied because Carolina Casualty did not obtain the court's permission to file the motion pursuant to Practice Book § 17–44.   Tabellione also argues that there is a genuine issue of material fact as to whether Carolina Casualty was prejudiced by the late notice.   Although Tabellione acknowledges that he had a claims-made-and-reported policy, he argues that “most jurisdictions require evidence of prejudice.”   In response, Carolina Casualty argues that it advised the court and all parties at the scheduling conference on July 31, 2013 that it was in the process of completing and would soon be filing a motion for summary judgment, that no objections were raised at that time, and that Carolina Casualty filed its motion for summary judgment two days later on August 2, 2013.   Carolina Casualty also argues that the court should disregard Tabellione's opposition because it was filed nearly two months after his request for extension of time to respond to the motion had expired.   Additionally, Carolina Casualty argues that Connecticut law is clear that the equitable common-law doctrine known as the notice prejudice rule that applies to occurrence policies does not apply to claims-made-and-reported-policies.

As to the threshold issue, Practice Book § 17–44 provides, in relevant part' “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial ․” ¹ “The purpose of requiring a filing of summary judgments in a timely manner is to save the parties the expense of preparation for trial.   The purpose of requiring court permission to file requests for summary judgment after trial assignment is to review the legitimacy of the delay in filing the request.”   Mips v. Becon, Inc., Superior Court, judicial district of Hartford, Docket No. CV–97–0575373–S (August 3, 2000, Booth, J.).   In Wallace v. Connecticut Union Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV–96–60131386–S (October 24, 2001, Pittman, J.) (30 Conn. L. Rptr. 613), the court heard the defendant insurance company's motion for summary judgment even though permission had not been sought because both sides had briefed all of the issues raised in the motion and it was filed early, leaving plenty of time to have the matter decided without interfering with trial or trial preparation.   The court reasoned that it “would grant such a motion for leave were it now to be filed.   The court will not, therefore, refuse in this instance to decide the Motion for Summary Judgment because of the technical failure of the defendant to first obtain leave to file the motion.”  Id.

In the present case, Carolina Casualty advised the court and all parties at the scheduling conference on July 31, 2013, that it was in the process of completing and would soon be filing a motion for summary judgment.   No objections were raised, and a court trial was scheduled at the conference for May 14, 2014.   On August 2, 2013, two days after the scheduling conference, Carolina Casualty filed its motion for summary judgment.   There is no evidence that any party was prejudiced by this “delay” in filing the motion.   It was filed early, leaving adequate time to have the matter decided without interfering with trial or trial preparation.   In addition, both sides have briefed the issues raised in the motion for summary judgment.   Therefore, and in its discretion, the court will consider the merits of the motion for summary judgment despite Carolina Casualty's technical failure to first obtain formal leave to file the motion.

“A claims made and reported policy requires that the claim against the insured, and the report of such claim to its carrier, occur within the same policy period as a precondition to coverage ․ The reporting requirement of a claims made policy ․ eliminate[s] an insurer's tail exposure by minimizing the time between the insured event and the payment ․ Because the reporting requirement provides insurers greater certitude as to their liability exposure, an insured [under a claims-made policy] pays a lesser premium, and receives broader coverage than under an occurrence policy because conduct occurring before the policy term is covered ․ In this regard, the reporting/notice requirement in a claims made policy is considered [a] valid condition ․ precedent and not just [a] technical requirement ․ Coverage under a claims-made policy occurs when a claim is made and reported during the specified policy period ․ That is because, as courts have repeatedly recognized, the essence of a claims made policy is notice to the carrier within the policy period.”  (Internal quotation marks omitted.)   National Waste Associates, LLC v. Travelers Casualty & Surety Co. of America, Superior Court, judicial district of Hartford, Docket No. CV–07–5013789–S (June 20, 2008, Dubay, J.) [45 Conn. L. Rptr. 709], aff'd, 294 Conn. 511, 988 A.2d 186 (2010).   “Given the purpose and function of the reporting requirement in a claims made policy, such reporting requirements are strictly construed ․ In this regard, numerous courts have held that excusing a delay in notice beyond the claims made policy period would alter a basic term of the insurance contract.”   (Internal quotation marks omitted.)  Id.

The plaintiff's contention that there exists an issue of material fact as to whether the defendant was prejudiced by the late notice is misplaced, as the common-law doctrine known as the notice prejudice rule that may be applied to occurrence policies does not apply to a claims-made-and-reported-policy such as the plaintiff's.   In Cabrera v. United Coastal Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV–01–0833416–S (July 18, 2005, Shapiro, J.) [39 Conn. L. Rptr. 822], the defendant insurance company moved for summary judgment on the ground that there was no genuine issue of material fact that notice was not given within the policy period or thirty days thereafter, as required by the policy.   The plaintiffs did not argue that the policy language contained an ambiguity, but rather argued that failure to meet the notice requirements of a claims-made-and-reported policy could be excused if the insurer suffered no material prejudice from the delay.   After analyzing ITC Investments, Inc. v. Employers Reinsurance Corp., Superior Court, judicial district of New London, Docket No. CV–98–115128–S (December 11, 2000, Corradino, J.), which was noted to contain an “exhaustive review of decisional law and treatises,” and analyzing decisional law from other jurisdictions as well as insurance treatises, the court granted summary judgment, reasoning that “it may not import a prejudice requirement into the unambiguous policy language here.   To do so would constitute an impermissible, material re-writing of the claims made coverage provided by the policy.”  Cabrera v. United Coastal Ins. Co., supra, Superior Court, Docket No. CV–01–0833416–S.

In Gulf Ins. Co. v. Murdock Claim Management Corp., Superior Court, judicial district of Hartford, Docket No. CV–04–4022252–S (August 4, 2009, Shapiro, J.), the court examined the same issue and found that cases subsequent to Cabrera v. United Coastal Ins. Co., supra, Superior Court, Docket No. CV–01–0833416–S similarly held that “prejudice is immaterial in the consideration of late notice when applying a claims-made policy.”  (Internal quotation marks omitted.).   The court granted the insurance company's motion for summary judgment, reasoning that prompt notice of the claim was not provided and that prejudice may not be considered for claims-made-and-reported policies.  Id.

In the present case, it is undisputed that Tabellione had a claims-made-and-reported malpractice insurance policy, policy number 9969235, with Carolina Casualty for the policy period August 2, 2010 to August 2, 2011, and that Section I of the policy provided, in relevant part:  “[t]his Policy shall pay on behalf of the Insured all Damages and Claims Expense that the Insured shall become legally obligated to pay, arising from any Claim first made against the Insured during the Policy Period and reported to the Insurer in writing during the Policy Period or within 60 days thereafter ․ “ It is also undisputed that the malpractice claim against Tabellione was first made by D & M on July 8, 2011, within the policy period, but that the claim was not reported in writing to Carolina Casualty until February 29, 2012, well beyond the sixty-day post-policy period deadline.   As there is no genuine issue of material fact that Tabellione did not report the claim until well beyond the sixty-day post-policy period deadline and it is clear that Connecticut does not recognize a prejudice consideration for claims-made-and-reported policies, Carolina Casualty is entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, Carolina Casualty's motion for summary judgment is granted.

BY THE COURT

Gleeson, J.

FOOTNOTES

FN1. Prior to January 1, 2014, Practice Book § 17–44 provided:  “In any action, except administrative appeals which are not enumerated in Section 14–7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.   These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.   The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.”As of January 1, 2014, Practice Book § 17–44 provides:  “In any action, including administrative appeals which are enumerated in Section 14–7, any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial.   If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order.   If no scheduling order exists but the case has been assigned for trial, a party must move for permission of the judicial authority to file a motion for summary judgment.   These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.   The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.”.  FN1. Prior to January 1, 2014, Practice Book § 17–44 provided:  “In any action, except administrative appeals which are not enumerated in Section 14–7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.   These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.   The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.”As of January 1, 2014, Practice Book § 17–44 provides:  “In any action, including administrative appeals which are enumerated in Section 14–7, any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial.   If a scheduling order has been entered by the court, either party may move for summary judgment as to any claim or defense as a matter of right by the time specified in the scheduling order.   If no scheduling order exists but the case has been assigned for trial, a party must move for permission of the judicial authority to file a motion for summary judgment.   These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.   The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.”

Gleeson, Marcia J., J.