STEWART, J.

UNPUBLISHED OPINION

OPINION

STEWART, J.

The defendant, The United Illuminating Company (UI), has moved for summary judgment on all of the counts in the complaint filed by the plaintiffs, Kenneth and Robin Knowles, in this action. In their complaint, the plaintiffs allege that on December 7, 2016, the defendant shut off the electrical power to their home in Stratford. They further allege that on or about December 18, 2016, the pipes in their home burst, causing damages and losses. Their complaint claims breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA). In each of those counts, the plaintiffs allege that the defendant "failed to provide a shut off notice as required by General Statutes § 16-262d."

FACTUAL BACKGROUND

The parties do not dispute the following material facts. The defendant provided electrical services to the plaintiffs’ residence in Stratford. The plaintiffs took an extended trip to Florida from October 14, 2016 until on or about January 3, 2017. Mr. Knowles registered to receive email notifications of his electric bills with the ability to access and pay those bills online. On or about October 18, 2016, the defendant sent an email notification to Mr. Knowles of a bill in the amount of $ 185.20. Thereafter, on November 17, 2016, the defendant sent another email notification; this time for a bill in the amount of $ 227.68, which included the amount of the October bill as well as new charges. As of November 21, 2016, the plaintiffs had not paid either bill. On December 7, 2016, the power was shut off to the plaintiffs’ residence.

The defendant has set forth the following additional material facts in support of its motion. It has a policy to send shutoff notices to residential customers who have a balance due of at least $ 175.00 and are delinquent at least 33 days. Kathleen Wasilnak Affidavit. As of November 21, 2016, the plaintiffs had a balance that exceeded $ 175.00. Wasilnak Aff. The defendant contracts with a vendor, KUBRA Data Transfer Ltd. (Kubra) to print and mail out its shutoff notices. Wasilnak Aff. On or about November 21, 2016, the defendant sent an electronic file that included a shutoff notice addressed to the plaintiffs to Kubra. Wasilnak Aff. Kubra prints, inserts and mails notices for the defendant. Benny Petrini Affidavit. It has established reliable procedures to ensure the mailing of, among other things, the defendant’s shutoff notices to its customers. Petrini Aff.

Kubra received the defendant’s electronic file that contained the information for the plaintiffs’ shutoff notice on the morning of November 22, 2016. Petrini Aff. That same day, implementing its regular course of business procedures, Kubra printed, inserted in envelopes, and mailed 3768 of the defendant’s shutoff notices. Petrini Aff.

The shutoff notice sent to the plaintiffs required payment of the October bill of $ 185.20 by December 6, 2016, to avoid termination of electrical service. Wasilnak Aff. Once a month, Mr. Knowles received an e-mail from the defendant stating that the bill was ready. Knowles Dep. 13. He could then log onto his account on the defendant’s website to view the bill. Knowles Dep. 14. If he had checked his account at any time after October 18, 2016, he would have had information that there was an outstanding balance. Wasilnak Aff. Mr. Knowles admits that at no time between September 16, 2016, and December 6, 2016, did he check his online UI account. Knowles Dep. 18.

The plaintiffs assert the following additional facts in their opposition to summary judgment. They registered for a program called "Informed Delivery Service" offered by the United States Postal Service that sends electronically mailed images each day of the front of each letter-sized piece of physical mail. Kenneth Knowles Affidavit. In addition, all of their physical mail was forwarded to them in Florida. Knowles Aff. Mr. Knowles stated in his affidavit that he never received a physical shutoff notice nor did he receive an image of it as part of the Informed Delivery Service. Knowles Aff. He also testified in his deposition that he could not recall ever receiving letter sized mail that was not imaged as part of the Informed Delivery Service. Knowles Dep. 21.

LEGAL ANALYSIS

I. Summary Judgment Standard

"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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). It is the moving party, the defendant, who has the burden of showing the nonexistence of any issue of fact that entitles it to judgment as a matter of law. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). In deciding this motion, this court must view the evidence in the light most favorable to the nonmoving parties, the plaintiffs. Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).

"Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 301 Conn. 320, 77 A.3d 726. "It is not enough, however, for the opposing party to assert the existence of a disputed issue of fact." (Internal quotation marks omitted.) State Farm Fire & Casualty Co v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). Here, the plaintiffs, as the opposing parties, must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact, which is a fact that would make a difference in the case. Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).

The defendant argues that summary judgment should enter on each of these claims because there are no disputed issues of material fact that it properly mailed a shutoff notice to the plaintiffs’ address. The defendant further argues that it only has to prove that it mailed the notice to comply with the statute. Section 16-262d states in relevant part: "No electric distribution ... company ... may terminate such service to a residential dwelling on account of nonpayment of a delinquent account unless such company ... first gives notice of such delinquency and impending termination by first class mail addressed to the customer to which such service is billed, at least thirteen calendar days prior to the proposed termination ..." It also specifies that "the thirteen-day periods ... shall commence on the date such notice is mailed ..." General Statutes § 16-262d(a). The plaintiffs contend that (1) the defendant has not proved that the notice was mailed and (2) even if the defendant has met the standard for proving a mass mailing, the mailbox rule applies such that the plaintiffs may rebut the presumption of receipt and even challenge whether it was sent in the first place.

II. The Defendant’s Evidence Suffices to Prove Mailing

The plaintiffs initially argue that the defendant cannot prove that the notice actually was sent because it is relying on the business practices of a third party, Kubra. The defendant submitted the affidavit of Kathleen Wasilnak, an employee of the defendant, and the affidavit of Benny Petrini, an employee of Kubra. The court finds that the combined affidavits establish that the shutoff notice was put into the United States mail. Connecticut courts have repeatedly held that evidence that a regular mailing procedure was followed suffices to establish that a particular piece was mailed. See, e.g., Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 414-16, 880 A.2d 882 (2005); Kerin v. Udolf, 165 Conn. 264, 268, 334 A.2d 434 (1973); State v. Morelli, 25 Conn.App. 605, 610-11, 595 A.2d 932 (1991); AIG Casualty Co. v. Schweiger, Superior Court, judicial district of Hartford, Docket No. CV-084035100-S (September 17, 2009, Bentivegna, J.) (48 Conn.L.Rptr. 593) (finding mailing procedure was adequate to prove actual mailing); Precision Mechanical Services, Inc. v. Scottsdale Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-980416692-S (March 3, 2006, Corradino, J.) (41 Conn.L.Rptr. 65), rev’d on other grounds, Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 952 A.2d 818 (2008) (finding defendant met its burden of proving that notice was mailed because it submitted evidence that there were mailing procedures and that they were followed).

III. The Issue of Receipt is Not Material

The plaintiffs further argue that even if it is established that the shutoff notice was placed into the United States mail, they have the opportunity to rebut the presumption of receipt under the mailbox rule. The defendant argues that the mailbox rule does not even apply in this case because the statute, § 16-262d, requires nothing more than proof that the shutoff notice was mailed, and therefore only mailing, not receipt, is material. The defendant cites the statutory language that refers to giving notice by "first class mail" and measuring the period before an actual shutoff is permitted by starting on the date the "notice is mailed." It also argues that the language of Section 16-3-100(d)(1)(A) of the Regulations of Connecticut State agencies refers only to "first class mail." The court agrees that, unlike certain other statutes, such as General Statutes § 16-262e (concerning the notice to be provided to tenants for a termination of electricity) or General Statutes § 4-180(c) (concerning the notice required for administrative agencies), this statute and regulation do not explicitly require actual notice or notice to be provided by certified mail, return receipt requested. Indeed, the plaintiffs allege that the defendant did not "provide" notice, not that they did not receive notice.

The defendant conceded at oral argument that there is no case law interpreting the notice requirement in this statute or this regulation. The defendant also has not provided the court with any cases that hold that the mailbox rule does not apply to statutes or contracts that do not expressly require receipt. In its memorandum, the defendant relies on the Supreme Court’s decision in Echavarria for the proposition that notification of an insurance cancellation is satisfied by proof of mailing alone. Def.’s Mot. Sum. J. 10-11. In that case, however, the Supreme Court expressly declined to reach the issue of whether § 38a-343 requires proof of actual receipt of an insurance cancellation. Echavarria v. National Grange Mutual Ins. Co., supra, 275 Conn. 417, 880 A.2d 882. The Supreme Court went on to analyze the facts of that case under the mailbox rule and ultimately held that there was no evidence from the plaintiffs in that case to rebut the presumption of receipt. Id., 418-19, 880 A.2d 882; see also AIG Casualty Co. v. Schweiger, supra, Superior Court, Docket No. CV-08-4035100-S (applying the mailbox rule and declining to reach the issue of whether § 38a-343 requires actual notice).

The defendant also contrasted the statute here with the notice provision in § 4-180(c) of the Administrative Procedure Act, which requires notice by personal delivery or by certified or registered mail, return receipt requested. A Superior Court recently interpreted this as requiring that the Department of Social Services mail the notice "and acquire evidence of receipt." Zaneski-Nettleton v. Dept. of Social Services, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-16-5011698-S (May 5, 2017, Stevens, J.); see also State v. Travelers Indemnity Co., Superior Court, judicial district of Hartford, Docket No. CV-094045585-S (June 5, 2013, Vacchelli, J.) (holding that unambiguous language of General Statutes § 52-362d(d) requires "receipt" of notice).

The court was unable to find any Connecticut case law on the application of the mailbox rule to rebut receipt where a statute or contract only requires notice by first class mail. The United States Court of Appeals for the Fifth Circuit has held, however, that "[b]ecause this mailbox rule functions merely to create a presumption of receipt, it only comes into play when there is a material question as to whether a document was actually received." Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir. 2007). Because the issue in that case was controlled by statutes and regulations that only required sending the notice by first class mail, the court held that the issue was "only whether the notice was mailed," and that "the mailbox rule does not operate in this context." Id.

As the United States Court of Appeals for the Second Circuit colorfully put it: "Whether the sender’s duty is to sound the drum-beat, send up the smoke signal, or mail the notice, proof that he performed suffices, regardless of what the receiver heard, saw, or read." Meckel v. Continental Resources Co., 758 F.2d 811, 817 (2d Cir. 1985) (holding that the controlling inquiry was only whether there was fulfillment of duty to send the notice not whether notice was received). Applying this reasoning to the Knowles’ claims, this court agrees with the defendant that, under the plain language of § 16-262d, receipt is not material.

IV. The Inverse Mailbox Rule Does Not Create an Issue of Material Fact

The plaintiffs take their mailbox rule argument one step further to question mailing in the first place. They also argue that their evidence that they did not receive the notice can be used to challenge the defendant’s evidence that it mailed the notice in the first place. This is known in some jurisdictions as the "inverse mailbox rule." See, e.g., 9 J. Wigmore, Evidence § 2519 (Chadbourn Rev. 1981), page 567 ("The presumption [of receipt] rests upon the supposed uniform efficiency of the postal service in delivering letters duly stamped, addressed, and mailed into its custody; if therefore the efficiency is operating, does not the nonarrival of an alleged letter indicate that such a letter was never given into the postal custody?") In Custer, the court declined to fully adopt the inverse mailbox rule on the grounds that a bare assertion of nonreceipt would require proof of receipt in situations where only mailing was required. Custer v. Murphy Oil USA, Inc., supra, 503 F.3d 421. Although the court reversed the grant of summary judgment, the plaintiffs and several other employees provided affidavits that they did not get the notice, and the defendant had provided "weak" evidence of mailing their specific notices as part of a mass mailing. Id., 422.

The court was unable to find any Connecticut cases addressing the inverse mailbox rule. The rationale of Custer is not entirely applicable here because, as discussed above, Connecticut, does accept the type of evidence of mass mailing procedures offered by the plaintiffs here. Like Connecticut, New York allows proof of individual mailing based on proof that procedures were followed for a mass mailing. Meckel v. Continental Resources Co., supra, 758 F.2d 817. If the party doing the mailing establishes that happened, there is a presumption of receipt. Id. In Meckel, debenture holders claimed that they did not receive notice of an opportunity to convert their debentures. Id. Applying New York law, the court held that this mere denial of receipt was not enough to rebut proof of mailing and affirmed the grant of summary judgment against the debenture holders. Id., 818. The court left open the possibility that more evidence could rebut proof that a mass mailing included mailing to particular individuals: "We think that in the context of a mass mailing there may be circumstantial evidence rebutting proof of mailing, without direct proof that the routine office procedure was either not followed or carelessly carried out." Id., 817.

Turning to the facts here, the court concludes that the Knowles’ assertion that they did not receive the shutoff notice through the Informed Delivery Service is nothing more than denial of receipt. The court could not find any case law anywhere discussing the Informed Delivery Service, but it is hard to see how denying receiving an emailed image of the front of an envelope differs from denying receiving the envelope itself The issue then becomes, if Connecticut were to apply the inverse mailbox rule, whether denial of receipt is enough to raise an issue of material fact as to whether a notice was mailed. The court concludes that under these circumstances, it is not.

Connecticut law is unsettled as to how much evidence is necessary to rebut the presumption of receipt for the regular mailbox rule. Our Supreme Court in Echavarria expressly did not consider the sufficiency of evidence required to rebut the presumption of receipt. 275 Conn. at 418 n.11, 880 A.2d 882. Although at least two Superior Court decisions considered a denial of receipt sufficient to overcome the presumption, they also found that receipt was required by the statute or contract before them and that the moving party in each case had not even proved mailing. Zaneski-Nettleton, supra, Superior Court, Docket No. CV-16-5011698-S; Provident Funding Associates, L.P. v. Sohn, Superior Court, judicial district of Fairfield, Docket No. CV-13-6037272-S (January 12, 2015, Jennings, J.) (59 Conn.L.Rptr. 579). Neither of those circumstances apply here. Indeed, the plaintiffs have not even contested the evidence that they were emailed two bills that they did not pay, and Mr. Knowles has admitted that he did not go online to check his account.

Moreover, under the inverse mailbox rule, the plaintiffs are trying to rebut the proof of mailing in the first place, not just receipt. As the Fifth Circuit observed in Custer, allowing a plaintiff’s bare assertion of nonreceipt to create a genuine issue of material fact to survive summary judgment would require proof of receipt where the controlling statutes and regulations only require mailing. 503 F.3d at 421. This court agrees. Having concluded that the shutoff notice statute and regulations require nothing more than mailing, the court cannot conclude that the proof of mailing detailed above can be rebutted by a denial of receipt. If denial of receipt evidence is not enough to rebut the proof of mailing, it cannot be material.

CONCLUSION

For the foregoing reasons, the court grants summary judgment for the defendant on all counts of the complaint. Judgment shall enter for the defendant.

No electric distribution ... company ... may terminate such service to a residential dwelling on account of nonpayment of a delinquent account unless such company ... first gives notice of such delinquency and impending termination by first class mail addressed to the customer to which service is billed, at least thirteen calendar days prior to the proposed termination ... For purposes of this subsection, the thirteen-day periods ... shall commence on the date such notice is mailed.

(1) Service may be terminated only in accordance with the following notice requirements:

(A) Except where service is disconnected pursuant to the provisions of subsection (b)(1) of this section no utility company shall terminate service to a customer prior to 13 days after notice of the proposed termination has been sent by first class mail to the address of and addressed to the customer to whom service is billed and to any third party designated by the customer pursuant to section 16-3-100(h) and prior to compliance with section 16-3-100(i).