Opinion
No. CV-01 0387861 S
July 22, 2003
MEMORANDUM OF DECISION Re Motion for Summary Judgment (#132)
This action arises out of a motor vehicle accident on January 22, 2001, at or about 2:47 p.m. in Monroe, Connecticut, when a school bus driven by co-defendant, John McFadden, collided with a car driven by the plaintiff, Christine Demchak. She had been insured under an auto policy issued by the defendant, Safeco Insurance Company; that policy provided underinsured motorist limits of $500,000 per person. The Seventh Count of the Revised Complaint asserts a claim for such benefits. Safeco has filed the instant motion stating there is no genuine issue of material fact whether its policy provided underinsured motorist benefits to this plaintiff on the date and time of the accident. It alternatively argues the policy was canceled and the notice of cancellation (hereafter "Notice") complied with C.G.S. § 38a-343 or that coverage had terminated for the reason the plaintiff had failed to renew. The plaintiff has objected and argues variously that the Notice was ineffective because not received and did not conform to the language required by the statute and that Safeco's conduct subsequent to the loss constituted a waiver of its right to rely upon the Notice. The parties have filed no fewer than seven (7) memoranda of law with supporting documents. Oral argument was heard on May 5, 2003.
The plaintiff's husband brought a loss of consortium claim. Multiple other defendants are sued under various theories of liability.
The waiver argument is not considered because it was not properly briefed. Plaintiff's original objection of August 23, 2002, asserts only that the insurer waived its right without providing any facts to support that claim. Where there is an unsupported assertion not briefed beyond the mention of that issue, the issue is itself deemed to have been waived and does not create an issue of fact for the purpose of defeating a summary judgment motion. See Commission on Human Rights and Opportunities v. Truelove MacLean, Inc., 238 Conn. 337, 344 n. 11 (1996). In a later document, the plaintiff provided medical bills provided the carrier, which documents are hearsay and do not appropriately support her objection.
There is no dispute that:
(1) The policy in question — Policy No. K1379424 — was a six-month policy due to expire on January 12, 2001.
(2) By letter dated December 10, 2000 (Para. 6 of Gingras affidavit), the plaintiff was told it was now "time to renew your Automobile (sic) policy" and that the "renewal premium" was $412.60. The letter also referenced an outstanding balance of $60.52. The policy period for the "renewal" policy was to be January 12, 2001, to July 12, 2001 (Policy Declarations attached as Exhibit A to Safeco's reply memorandum of September 16, 2002). CT Page 8453-gf
(3) Thereafter, a Monthly Payment Plan Cancellation Warning Notice ("Notice") was sent by the plaintiff. A certified U.S. Postal Certificate of Mailing establishes a "run" date of January 7, 2001, and a "mail" date of January 8, 2001. The mailing address for the plaintiff was as provided in the policy declaration and on the summons for the commencement of the lawsuit. The Notice stated the payment of $70.77 due January 1, 2001, was outstanding as of January 7, 2001; it provided coverage would be continued without interruption if that payment were "postmarked and mailed no later than January 21, 2001," and that the policy would "cancel on January 22, 2001," at 12:01 a.m. if the payment was not postmarked and mailed by January 21, 2001. It also provided, "This is the last notice you will receive." See Exhibit B of defendant's Reply of September 16, 2002.
While the plaintiff does not dispute the existence of the certificates of mailing, she questions their validity because the post office notes receipt of 1,657 notices while only page 20 of the run list is provided. The simple answer is that only that page lists the plaintiffs as addressees and all other pages are irrelevant to this motion. With regard to the claimed lack of affidavit to support this documentation, paras. 10-14 of the Gingras affidavit of September 13, 2002, reference the same and thus support the mailing. At least one Superior Court judge found such a certificate of mailing sufficient proof of sending of cancellation notice to support entry of judgment for the defendant carrier. See John v. Government Employees Insurance Company, 1991 WL 204412 (Judicial District of Hartford at New Britain, 9/20/91, Allen, J.).
(4) A check signed by one Ute Lima referencing the policy in question and dated January 22, 2001, was mailed to a Safeco agent (Exhibit C to Reply of September 16, 2002, and para. 15 of Gingras affidavit). While proof of the postmark was not provided, the date of the check establishes it could not have been "postmarked and mailed by January 21, 2001." Nor does the plaintiff claim the payment required to avoid termination of coverage on January 22, 2001, at 12:01 a.m. was ever timely mailed.
(5) The policy in question was reinstated effective January 23, 2001. The January 30, 2001, Notice of Reinstatement provided, "Please be advised there was a lapse in your coverage before this reinstatement became effective." Exhibit D attached to Reply of September 16, 2002.
The issue for this court, therefore, is whether coverage terminated for non-payment of monthly premium or because the policy was not renewed by the plaintiff and what warning notice, if any, was required be given by Safeco.
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Miller v. United Technologies Corp., 233 Conn. 732, 745 (1995). 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 judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Directors, 254 Conn. 205, 209 (2000). It is not enough for CT Page 8453-gg the opposing party merely to assert the existence of the dispute. Mere assertions of fact are insufficient to establish the existence of a material fact and cannot therefore refute properly presented evidence in support of the motion. Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55 (1998). A material fact is a fact which will make a difference in the result of the case. H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560 (2001). The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn. App. 657, 663 (1997). It is not the court's function in deciding a summary judgment motion to determine fact issues but only to determine whether there are issues of fact. Nolan v. Borkowski, 206 Conn. 495, 501 (1988). The summary judgment procedure is designed to eliminate the delay and expense associated with the litigation of an issue where there is no real issue to be tried. Wilson v. New Haven, 213 Conn. 277, 279 (1989).
Conn. Gen. Stat. § 38a-343 provides the requirements regarding mailing and timing of cancellation notices. Under § 38a-343 (a) (2), where cancellation is for nonpayment of a premium other than the first premium on a new policy, "at least ten days notice of cancellation accompanied by the reason for cancellation shall be given." The statute also provides "mail evidenced by a certificate of mailing" is effective to show notice of cancellation. § 38a-343 (a). Even were the court to conclude this policy terminated for nonpayment of a monthly premium as the plaintiff argues, there is compliance with § 38a-343 (a) (2). The cancellation warning with a "run" date of January 7, 2001, and a "mail" date of January 8, 2001, evidenced by a certificate of mailing clearly pre-dated the specified date of cancellation (January 22, 2001) by more than the required ten (10) days. The plaintiff's argument that fifteen (15) days notice of cancellation is required (and that the Notice mailed January 8, 2001, is therefore ineffective to cancel this policy on January 22, 2001) because the premium due was the first premium on a "new" policy is not persuasive. The argument presumes there was, on the date of accident, a policy in effect for the period January 12, 2001, to July 12, 2001, when in fact there was not because the plaintiff had never responded to the December 10, 2000, letter next here to be addressed. Nor is the argument the Notice was ineffective because it failed to comply with all of the requirements of § 38a-343 (b) persuasive. Specifically, the plaintiff argues the warning did not advise the insured of the need to respond to inquiries from the Commissioner of Motor Vehicles with regard to whether insurance on the vehicle was currently being maintained or that she, in the event the policy lapsed and registration for the vehicle canceled and the plates were canceled, would then be subject to legal penalties, and that references to specified statutes were omitted. The warnings provided clearly advised the CT Page 8453-gh plaintiff of her substantive rights — specifically, that which would occur in the event of cancellation of the policy and the potential consequences thereto.
The plaintiff argues coverage was in effect on the date of the accident because what occurred was cancellation for non-payment of a premium and § 38a-343 (a) requires notice be "given." The plaintiff executed an affidavit stating she never received the notice. Our Supreme Court, in Westmoreland v. Central Accident FL Assurance Corp., 144 Conn. 265, 271 (1957), found the notification requirements for the cancellation of an existing policy should be controlled by the policy since the policy is a contract between the parties. "It is always competent for parties to contract as to how notice shall be given, unless their contract is in conflict with law or public policy." Id., at 270. The policy in question also provided the carrier could cancel by "mailing by registered or certified mail or United States Post Office certificate of mailing to the named insured shown in the Declarations at the address shown in this policy" with "at least 10 days notice if cancellation is for nonpayment of premium." (Emphasis added.) Policy, Termination, A.2.a. (1), p. 15. That was done here. Our superior courts have held actual receipt is not required by § 38a-343. See Schneider v. Brown, 34 Conn.L.Rptr. 403, 2003 WL 21040162 (judicial district of Fairfield at Bridgeport, Levin, J., April 23, 2003); Buccino v. Middlesex Mutual Assurance Co., 9 Conn.L.Rptr. 13, 1992 WL 137794 (Lewis, J., April 22, 1993); Iuteri v. Allstate Insurance Co., 25 Conn.L.Rptr. 67, 1999 WL 512640 (Downey, J., July 8, 1999).
The evidence the subject coverage terminated for non-renewal is persuasive. The December 10, 2000, letter specifically informs the plaintiff: a) that it is time to renew the policy; b) that the new policy period would begin on January 12, 2001; and c) that "the renewal premium" was $412.60. The terms provided therein and in the enclosed declaration were sufficiently definite to constitute an offer to contract. A policy of insurance is a contract between the parties and a renewal of the original policy is a separate and distinct contract providing coverage for a specified term or period. See Stenson v. Northland Insurance Co., 42 Conn. App. 177, 185 (1996). The fact such letter also states the outstanding balance of $60.52 must be postmarked by December 20, 2000, to prevent cancellation is not inconsistent with a finding termination occurred for failure of the plaintiff to renew. That is so because her payment of the outstanding amount by December 20, 2002, would only have ensured continued coverage for the six-month policy then in effect; it would not have renewed that policy for another six months nor is there anything in that letter to suggest the same. Had she remitted the outstanding payment by December 20, 2000, she would still have had to CT Page 8453-gi accept the defendant's offer of renewal to continue coverage for the new period beginning January 12, 2001, to July 12, 2001. The plaintiff never responded to the letter of December 10, 2000. She paid no additional premium of any kind before the accident in question. She did not accept the offer of renewal and there was no contract in effect on the date of the subject loss.
Safeco's policy included an automatic termination provision that read in pertinent part:
If we offer to renew and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal premium when due shall mean that you have not accepted our offer.
(Emphasis added.)
The plaintiff's failure to pay the renewal premium was, under the terms of the policy, a failure to accept the defendant's offer, thus invoking the automatic termination provision. Our Court of Appeals has concluded statutory notification requirements do not apply to non-renewal of a policy. In Kane v. American Insurance Co., 52 Conn. App. 497 (1999), the policy, as here, provided an automatic termination provision in what was, as here, a series of six-month policies. An offer to renew was sent the insured who failed to send the required premium. The question reserved for the Court was: "Did §§ 38a-340 and 38a-341 (2) require the defendant, American Insurance Company, to issue a cancellation notice in accordance with the provisions of § 38a-343 before terminating the plaintiff's, Bertha Kane's, automobile insurance coverage?" To that question, the Court's response was "No." Id., at 503. The Court distinguished Travelers Insurance Co. v. Hendrickson, 1 Conn. App. 409 (1984), the case upon which this plaintiff relies since, in Travelers, supra, the insurer had sent a premium notice which indicated partial payment would be applied as a credit to the total premium due, the insured had sent partial payment, and the carrier had credited it toward the total premium due. The Court in Kane found the notice in Travelers of particular significance because it could reasonably have led the insured to believe the policy was in effect on the pertinent date. Connecticut superior courts have held an insurance policy terminates where an insured fails to renew and the only notification required is the thirty-day notice here provided by the offer to renew. See Babis v. Guardier, 1993 WL 512527 (judicial district of Fairfield at Bridgeport, Belinkie, J., 1993), which held the applicable notice requirements in non-renewal cases were as provided in § 38a-323 (b); see also Progressive Northwestern Insurance Company v. Torres, 1999 WL 956693 (Kremski, J.), in which the CT Page 8453-gj court held that, since an offer to renew was sent within the statutory thirty-day period and the defendant failed to accept the offer with a renewal premium payment, the policy automatically terminated pursuant to the terms of the policy. Notice of the insurer's intent not to renew is required to be not less than thirty days in advance of the policy's renewal or anniversary date under § 38a-323 (b) (1). The non-renewal sixty days notice requirement of § 38a-344 is not applicable in the case before the court because Safeco did not wish to cancel the policy through non-renewal; it made an offer of renewal which was rejected because not accepted. As the defendant aptly observes, the logical extension of the plaintiff's argument would require an insurer who wished to cancel for the insured's failure to pay the first premium on a renewal policy to not only provide sixty days notice but to continue coverage for those sixty days in those instances where an insured allowed his/her policy to lapse at the end of its natural term. P. 9 of May 19, 2003, memorandum. Under such circumstances, the insurer would be required to provide eight (8) months of coverage to an insured under a six-month policy without payment of the necessary premium. Where, as here, the date of or event triggering the termination of a policy is known from the inception of the policy, "the provision of additional notice is superfluous and hence not required." DiDello v. Barnes Page Wire Products, 66 Conn. 361, 369 (2001)
Although stated in the context of a bulletin directed to excess lines insurers, Connecticut's Insurance Commissioner has stated, "The obligation of surplus lines insurers to give insureds sixty days advance notice of intent not to renew does not apply in the case of non-payment of premium or if the insured fails to pay any advance premium required by the insured for renewal." Connecticut Excess Lines Bulletin No. EL-5 (July 1, 1987).
The proof of notice requirement of § 38a-344 and the sixty-day notice requirement of this policy when it is the insurer who determines not to renew are inapplicable. The thirty-day notice requirement regarding renewal notices satisfies § 38a-323 (b) (1) in view of the December 10, 2000, offer of renewal and termination of coverage on January 22, 2001.
No genuine issue of material fact exists regarding whether coverage under this policy existed at the time of accident, the policy having terminated because not renewed despite appropriate notice. The motion for summary judgment is granted. CT Page 8453-gk
Sheedy J.