Opinion
No. CV02 0190417 S
February 2, 2004
Memorandum of Decision
This action arises out of a claim for underinsured motorist coverage. The plaintiff claims that she was injured in an automobile accident on November 14, 1997 caused by the negligence of the operator of an underinsured motor vehicle. At the time of the plaintiff's injury she was insured by the defendant under a automobile policy which included uninsured and underinsured motorist coverage. Plaintiff brought this action by writ, summons and complaint dated July 3, 2002, returnable on July 23, 2002, seeking to recover damages from defendant under such coverage.
On September 30, 2002 the defendant filed an answer including a special defense claiming that "pursuant to the provisions of the policy, plaintiff failed to commence her claim within three years of the accident."
On October 28, 2002 the defendant moved for summary judgment on the ground that plaintiff had failed to bring suit on her claim within three years of the date of the accident. The policy issued by the defendant was attached to its motion for summary judgment. The applicable provision of Part F — General Provisions, reads as follows:
"LEGAL ACTION AGAINST US
No legal action may be brought against us until there has been full compliance with all the terms of this policy.
. . .
Under Part C (uninsured motorists coverage), all suits must be brought within three years of the date of accident. CT Page 1534
However, the time for bringing suit for Underinsured Motorist benefits may be suspended provided:
1. The injured person notifies us in writing of their Underinsured Motorist claim within three years of the date of the accident and,
2. The injured person commences suit under the terms of this policy not more than 180 days from the exhaustion of the limits of liability from all auto body injury liability policies or bonds, applicable at the time of the accident by settlement or final judgment after any appeals."
Also attached to the motion for summary judgment was plaintiff's sworn response to defendant's interrogatory 37 dated September 23, 2002. That interrogatory and its response reads as follows:
(37) State the date that you notified Middlesex Mutual Assurance Company in writing of your intention to commence an underinsured motorist claim.
July 3, 2002.
On January 8, 2003 the plaintiff filed an amended response to interrogatory 37. In her amended response she claimed that written notice was given to the defendant on or about November 14, 1997.
The plaintiff's opposition to the motion for summary judgment was filed on January 16, 2003. In an affidavit attached to that pleading the plaintiff stated that she had notified the defendant of the accident on November 15, 1997, the day after the accident. In that affidavit she did not claim that she had ever notified the defendant in writing of an underinsured motorist claim. In her opposition, however, her counsel claimed that her prior counsel's files were missing correspondence and that she needed to conduct discovery in order to determine if and when the defendant received a written notification from her or her former counsel. In her opposition, plaintiff also claimed that even if the written notice was not given within three years of the accident, such omission would only be relevant if the defendant could show prejudice from the lack of notice under the case of CT Page 1535 Aetna Casualty and Surety Co. v. Murphy, 206 Conn. 409 (1988).
Over the next five months the parties engaged in a protracted dispute regarding plaintiff's discovery requests which were apparently aimed at gathering evidence to show that the defendant had not suffered prejudice on account of plaintiff's delay in providing notice to defendant. These disputes remain unresolved. However, on July 1, 2003 the parties entered into a stipulation of fact for the limited purpose of defendant's motion for summary judgment. That stipulation was that the defendant had not suffered prejudice "with regard to any claim of late notice."
On December 15, 2003 the defendant filed a supplemental memorandum in support of its motion for summary judgment. That memorandum cited the recent case of Tracy v. Allstate Ins. Co., 76 Conn. App. 329 (2003), modifying Tracy v. Allstate Ins. Co., 70 Conn. App. 726 (2002) as approving and upholding policy language nearly identical to that in the subject policy. On December 18, 2003 the plaintiff filed a supplemental response in opposition to the motion for summary judgment. This response added an additional claim that the provision of the policy defining the time within which suit must be commenced should be declared void because it is ambiguous and contradicts other provisions of the policy. A similar contention allegedly forms the basis of the appeal in Tracy v. Allstate Ins. Co., cert. granted 264 Conn. 905 (2003). A hearing on the motion for summary judgment was held on December 22, 2003.
The standards for dealing with motions for summary judgment are well established:
"[S]ummary 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 753 (2000).
The court finds that the issue of prejudice is not relevant to this motion. In Aetna Casualty v. Murphy, supra the court ruled that an insured could overcome the presumption that delayed notification of a claim was prejudicial to the insurer by rebutting that presumption. The policy in that case required the insured to give notice of a claim "as soon as practicable." Id. at 411. The insured also breached his obligations under the policy by failing to "immediately forward" to the insurer copies of a summons and complaint which had been served upon him. Id. The court construed these provisions as those of forfeiture and ruled that it would decline to enforce them if the insured was able to show that the insurer had suffered no prejudice by the delay. Id. at 419-21.
In the present case, the issue is not a requirement of timely notification. It is an issue of the time within which suit must be brought. ". . . limitation periods on suits are designed to promote justice by preventing surprises through revival of stale claims, to protect defendants and courts from handling matters in which the search for truth may be impaired by loss of evidence, to encourage plaintiffs to use reasonable and proper diligence in enforcing their rights, and to prevent fraud . . . The presence or absence of prejudice is not, nor should it be, a factor in deciding whether an insurer may effectively assert his defense (limitation of action) under the policy." Zieba v. Middlesex Mutual Assurance Co., 549 F. Sup. 1318, 1321 (1982). See also Bildeau v. The Aetna Casualty and Surety Co., No CV-94-05347335, 1996 Ct. Sup. 1357, 16 Conn. L. Rptr. 261 (Feb. 29, 1996, Aurigemma, J.), and Arpin v. Aetna Casualty Surety Co., No. CV91 0388584 (Jul. 27, 1994, Corradino, J.), 12 Conn. L. Rptr. 249, 1994 Ct. Sup. 7550.
The court does not agree with the plaintiff's contention that the provisions of the policy are vague and ambiguous. The provisions are virtually identical to the provisions of General Statutes § 38a-336(g)(1) and meet the requirements of that statute. As the defendant points out, the Appellate Court has found such provisions to be unambiguous and enforceable. Tracy v. Allstate Ins. Co., 76 Conn. App. 329 (2003), modifying Tracy v. Allstate Ins. Co., 70 Conn. App. 726 (2002). The court finds that the requirements of the policy regarding the time within which suit must be brought do not contradict other provisions of the policy and are enforceable.
(g)(1) 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.
The only question remaining is whether there is an issue of fact as to when the plaintiff provided written notice of her underinsured motorist claim to the defendant. With respect to that question the defendant places its entire reliance on the plaintiff's initial response to interrogatory 37. The court must first determine whether the defendant is permitted to use that discovery response in support of its motion for summary judgment. Practice Book § 17-45 states in relevant part that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like" (emphasis added). However, General Statutes § 52-200 provides, in relevant part:
When either party in any action has obtained from the other party a disclosure on oath, respecting the matters alleged in any pleading, the disclosure shall not be deemed conclusive, but may be contradicted like any other testimony.
In Piantedosi v. Florida, 186 Conn. 275 (1981) the action was against the defendant as a maker of a promissory note. In support of its argument that the plaintiff's claim was time-barred, the defendant relied solely on an answer in an interrogatory in which the plaintiff admitted that a demand for acceleration had been made. Despite the answer to the interrogatory, the trial court determined that the plaintiff had not exercised his option to accelerate the note and, accordingly, the action was not time-barred. Id. at 276. The trial court found that the answer to the interrogatory was not a binding judicial admission and that no acceleration had occurred. The Supreme Court found no error, stating that the trial court acted within its discretion in finding that the plaintiff had not accelerated the note, even in light of the interrogatory response. Id. at 278. Unlike admissions in pleadings or in open court, the Court reasoned that an answer to an interrogatory is not a judicial admission. Id., citing Hirsch v. Thrall, 148 Conn. 202, 206-07 (1961); Bochicchio v. Petrocelli, 126 Conn. 336, 339 (1940). Moreover, the Court noted that "[t]hese restrictions on the effect of an interrogatory response are consistent with General Statutes Sec. 52-200, which states that a disclosure on oath shall not be deemed conclusive but may be contradicted like any other testimony." Id. The Court did not discuss whether reliance on an answer to an interrogatory on a motion for summary judgment is appropriate.
In Schratwieser et al v. Hartford Casualty Ins. Co., 44 Conn. App. 754 (1997) the court allowed the use of deposition testimony on a motion for summary judgment when both parties did so and neither side objected. In that case the court noted that while the court in Esposito v. Wethered, 4 Conn. App. 641 (1985) had reversed the granting of a motion for summary judgment based on deposition testimony, it had since determined that it was not improper for a trial court to consider deposition testimony in ruling on motions for summary judgment.
In Deneault v. Sargeant, Docket No. CV 02 0077202 (May 23, 2003, Holden, J.), the court denied a motion for summary judgment, finding that it could consider a party's answers to interrogatories and responses to requests for production in deciding the motion. The court reasoned that Practice Book § 17-45 specifically states that "disclosures" are the type of evidence that may be considered as evidence to support a summary judgment motion, and that interrogatories and requests for production fall under the term "disclosures."
In this case the plaintiff did not object to the court's consideration of her initial answer to interrogatory 37. Under these circumstances the court concludes that it is appropriate to consider that answer, not as a judicial admission, but rather as evidence given under oath. That evidence is not, however, entirely uncontradicted. The plaintiff has filed an affidavit in opposition to the motion for summary judgment in which she alleges that she gave notice to the defendant within the period allowed for the tolling of the time within which suit must be brought. The plaintiff also has filed an amended answer to interrogatory 37 in which she now claims to have given written notice to defendant shortly after the accident.
The court notes that in her affidavit the plaintiff does not claim that she gave written notice of her underinsured motorist claim to the defendant as required by the terms of the policy. However, her current response to interrogatory 37 constitutes a claim by plaintiff that she gave written notice of such claim to defendant within two days of the accident. The question is not whether the court finds plaintiff's initial answer to interrogatory 37 to be more credible than her subsequent one. That question must be determined by the trier of fact. The court's task is to determine whether an issue of a material fact exists. The date of the written notice is unquestionably material. Plaintiff's entire case turns on whether it was timely or not. As plaintiff's first response to interrogatory 37 cannot be considered a judicial admission, an issue of fact exists which precludes the granting of defendant's motion for summary judgment. The motion is accordingly denied.
David R. Tobin, Judge