Opinion
No. CV 04 0092536S
February 15, 2005
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT ( #108)
I. FACTUAL BACKGROUND
This is an action brought by the plaintiff, Angela L. Didsbury, against the defendant Allstate Insurance Company. On February 26, 2004, the plaintiff filed a complaint against the defendant for losses she allegedly incurred as a result of an automobile accident caused by a motorist whose insurance carrier became insolvent. The plaintiff alleges the following facts. On or about March 22, 2000, the plaintiff was involved in an automobile accident with Paul N. Alves, which was caused by the negligence and carelessness of Alves, and she suffered injuries as a result of the accident. At the time of the accident, the vehicle driven by Alves was insured through a policy with Reliance Insurance Company (Reliance). Subsequent to the date of the accident, Reliance became insolvent. The plaintiff admits receiving notice of the liquidation of Reliance on November 7, 2001. On December 13, 2001, the plaintiff's attorney received formal notice from the Connecticut Insurance Guaranty Association (CIGA) that Reliance was insolvent. On April 10, 2002, the plaintiff's attorney faxed to Allstate's agent (Rafferty) in Waterbury a copy of that notice and a copy of a complaint filed against Alves and gave formal notice that the plaintiff was claiming entitlement to the benefits provided in the uninsured motorist provisions of her Allstate policy. As a result of the insolvency of Reliance, Alves became an uninsured motorist with regard to the accident involving the plaintiff. The plaintiff notified her insurance carrier, the defendant, of her uninsured claim and attempted to collect under her policy. The defendant has refused to provide coverage for the plaintiff's losses.
The writ was returnable to this court on March 9, 2004, and was served on the Insurance Commissioner on February 20, 2004.
On Page 14 of the Allstate policy an uninsured auto is defined as "a motor vehicle for which the insurer denies coverage or the insurer becomes insolvent." Emphasis added.
On October 5, 2004, the defendant filed a motion for summary judgment. The motion was accompanied by a memorandum of law. Allstate filed five exhibits with its memorandum: the notice of Reliance's liquidation; the notice of insolvency; a Request For Admissions dated May 13, 2004; a certified copy of the Allstate policy that was in effect on the date of the plaintiff's accident; and a copy of General Statutes § 38a-336. The plaintiff filed an objection and a memorandum of law in opposition to the defendant's motion on October 26, 2004. The plaintiff attached thereto a copy of the notice of claim sent to Allstate's agent. On October 28, 2004, the defendant filed a reply to the plaintiff's objection.
II. THE CLAIMS OF THE PARTIES
The defendant moves for summary judgment on the ground that pursuant to its policy limitations, and in compliance with General Statutes § 38a-336(g)(1), the plaintiff is barred from any recovery because the three-year limit provided in the policy and permitted by said statute had expired prior to the commencement of this action. Allstate further argues that the policy is not in conflict with General Statute § 38a-336(g)(2). In response, the plaintiff asserts that Allstate's policy is not in compliance with Connecticut law, and that, therefore, the six-year statute of limitation applicable to contracts should apply. Specifically, the plaintiff argues that the defendant's policy does not contain a provision expanding the time limitation in regard to motorists who become uninsured by way of the insolvency of the tortfeasor's carrier, which, the plaintiff claims, is necessary pursuant to Sec. 38a-336(g)(2).
General Statutes § 52-576(a), which has been held, in certain circumstances to apply to insurance contracts, provides, in part, that "[n]o action . . ., 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 . . ." See Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 814 (2001).
III. APPLICABLE LAW A. Summary Judgment
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279 (1989). 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 . . . 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.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237 (2004). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424 (1999). A motion for summary judgment is the proper vehicle for a party to test a claim that the action is barred by the applicable statute of limitation. Doty v. Mucci, 238 Conn. 800, 806 (1996).
B. Uninsured/underinsured Motorist Provisions
The purpose of the uninsured/underinsured motorist statute and the policy provisions inserted into automobile liability policies as a result of the legislation is to protect covered persons who are injured by uninsured motorists or by those covered by an automobile liability policy with limits that fall short of fully compensating the injuries and losses suffered by the injured party. Premiums are paid by the owner of the policy for such protection. The statute, as amended from time to time, enacted by the legislature, i.e., § 38a-336, is remedial in nature and should, therefore, be `construed liberally in favor of those whom the law is intended to protect." Gohel v. Allstate Ins Co., 61 Conn.App. 806, 815 (2001).
We begin by reiterating the general legislative purpose behind the very existence of uninsured and underinsured motorist coverage. "The public policy established by the uninsured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance . . . [U]ninsured motorist coverage . . . is statutorily intended to provide the . . . equivalent of automobile liability coverage prescribed by [law] . . . To achieve this purpose, no policy exclusions contrary to the statute of any of the . . . insureds are permissible since uninsured motorist coverage is intended by the statute to be uniform and standard motor vehicle accident liability insurance for the protection of such insureds thereunder as if the uninsured motorist had carried the minimum limits of an automobile liability policy . . . The public policy embodied in these statutes favors indemnification of accident victims unless they are responsible for the accident." (Citations omitted; internal quotation marks omitted.)
Id. At pages 816-17.
C. General Statutes § 38a-336(g)(2)
General Statues § 38a-336(g)(2) states, in relevant part: "Notwithstanding the provisions of subdivision (1) of this subsection, in the case of an uninsured motorist claim, if the motor vehicle of a tortfeasor is an uninsured motor vehicle because the automobile liability insurance company of such tortfeasor becomes insolvent or denies coverage, 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 motorist provisions of an automobile liability insurance policy to a period of less than one year from the date of receipt by the insured of written notice of such insolvency of, or denial of coverage by, such automobile liability insurance company."
"The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, [the court looks] to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . In construing a statute and determining the legislative intent, [the court] may take judicial notice of the discussions on the floor of the General Assembly although such discussions are not controlling on statutory interpretation." (Citations omitted; internal quotation marks omitted.) Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 334 (2003), aff'd, 268 Conn. 281 (2004).
"This opinion superseded, in part, an earlier opinion by the Appellate Court at 70 Conn.App. 726 (2002), as to the efficacy of the tolling provisions of § 38a-336(g)(1).
Section 38a-336(g) was amended by No. 98-189 of the 1998 Public Acts, at which time § 38a-336(g)(2) was added. While there is very little legislative history regarding this amendment, the court finds the Appellate Court's statutory interpretation and subsequent analysis of General Statutes § 38a-336(g)(1) to be instructive.
D.General Statutes § 38a-336(g)(1)
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 . . . 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 . . ."
In Connecticut, "no insurance company is permitted to place in its policy a limitation period of less than three-years from the date of the accident for uninsured and underinsured motorist claims." Id., 335. "If the limitation [period] provided in the policy is for less than three-years, in violation of the statute, the provision becomes invalid and the limitation reverts back to the six year contract limitation." Id., 336; see also Gohel v. Allstate Ins. Co., supra, 61 Conn.App. 813; Hodge v. Allstate Ins. Co., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0103118 (July 28, 2004, Aurigemma, J.).
In Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 329, the defendant complied with the three-year limitation period contained in § 38a-336(g)(1), which was enacted by Public Act 93-77, by altering the language in its policy to reflect the expanded time limit in which to bring a cause of action. The court stated that, "[t]he policy expressly included a limitation provision of three-years, which complies with the mandatory condition set forth in the statute." Id., 337. Conversely, in Gohel v. Allstate Ins. Co., supra, 61 Conn.App. 806, the defendant had issued its policy prior to the enactment of § 38a-336(g)(1), and did not change the language of its policy to conform with the provisions of the statute after its enactment and prior to the accident that gave rise to the litigation.
IV. ANALYSIS
In Gohel, the Appellate Court did not substitute the three-year statute of limitation required by 38a-336(g)(1), but rather it invalidated the two-year limitation contained in the policy and held that the six-year statute of limitations for regular contract actions would be applied. Relying on legislative history, the court stated that, "the legislature, in enacting P.A. 93-77, did not create a statute with retrospective application . . ., but merely created a statute that rendered inoperative, as of the effective date of the statute, any policy provisions inconsistent with the statute's requirements." Id., 820.
In Tracy, the Appellate Court, during its initial consideration of the plaintiff's appeal addressed the argument that the three-year policy and statutory limitation provisions were inconsistent with the compliance provision of the policy in two respects. The plaintiff argued that the policy prohibited any payment of underinsured motorist benefits until the limits of the tortfeasor's policy had been exhausted, but that she did not obtain payment of those limits until after the three-year limitation period had expired. The plaintiff further argued that said policy prohibited the filing of any action against Allstate until Allstate gave its consent to the settlement with the tortfeasor's carrier; that did not occur prior to the expiration of the three-year limit. Thus, the plaintiff asserted that the policy's limitation provision was ineffective as it was in conflict with the compliance provision, therefore, the six-year limitation period in § 52-576 should apply. The Appellate Court agreed with the trial court's conclusion that since neither the exhaustion provision nor the consent provision prohibited the plaintiff from filing her action within the three-year period provided in the policy and permitted by § 38a-336(g)(1), those provisions were not incompatible with the three-year limitation. In its reconsideration of this issue, the court stated:
The plaintiff fails to present us with any persuasive reason why we should modify our prior determination that § 38a-336(b) and (g)(1), and not, § 52-576, apply to this matter. We will not, therefore, revisit that issue.
Id., at p. 332.
The Tracy court also considered, during its initial review of the appeal, the plaintiff's argument that the so-called tolling provision in § 38a-336(g)(1) applied to the Allstate policy. The court held, however, that said provision applied only to those policies that provided a limitation period of less than three-years. Allstate's policy mandated the filing of an action within three-years. At the urging of the Conn. Trial Lawyer's Association, that was allowed to file an amicus brief and to participate in the agreement on the issue, the Appellate Court, did revisit and modified its decision relative to this issue. After stating that it's modified interpretation of § 38a-336 (g)(1) was consistent with its language and its legislative history and purpose, the Appellate court concluded that the statute's tolling provisions applied to the Allstate policy. Therefore, the plaintiff had the opportunity, despite the three-year policy limitation, to utilize the tolling provision by filing the action against Allstate within one hundred eighty days of the exhaustion of the limits of the tortfeasor's policy, so long as Allstate was notified of the possibility of an underinsured motorist's claim within three-years of the date of the accident. The plaintiff, however, did not provide notice to Allstate within three-years. As the plaintiff did not avail herself of the tolling provisions, the Appellate court upheld the trial court's ruling that granted Allstate's motion for summary judgment.
In affirming, the Supreme Court, in a per curiam opinion, held that the Appellate Court's "thoughtful and comprehensive opinion . . . properly resolved the issue." Tracy v. Allstate Insurance Company, supra, 268 Conn. 283.
IV. CONCLUSION
Let us assume a factual history somewhat different than that which actually occurred in this case. In this scenario, the date of the accident will remain unchanged. The plaintiff was injured by the tortfeasor's negligent operation of his motor vehicle on March 22, 2000. The plaintiff files a timely action against Alves, however in this scenario, the plaintiff is not informed of the insolvency of Alves' insurer until April 15, 2002. Under the three-year policy limitation, the plaintiff would be compelled to institute an action for uninsured motorist benefits against Allstate on or before March 22, 2003, however, pursuant to § 38a-336(g)(2), the plaintiff would not be obligated to do so until April 15, 2003. According to the Allstate policy, the plaintiff would be nearly one month too late. The plaintiff's substantial rights in the policy and her entitlement to the benefits for which she paid, would be, under this scenario, foreclosed by the policy language, which would be contrary to the plaintiff's rights and entitlements conferred by the legislature when it passed Public Act 98-189. Given this scenario, the plaintiff would argue that the policy language and the statutory provision are in irreconcilable conflict; the statute would, therefore, prevail and would nullify the policy language.
Applying, however, the reasoning of the Appellate Court, in its consideration of and decision on both issues raised by the plaintiff in that case, this court finds that the Allstate policy issued to the plaintiff in the instant case was in compliance with § 38a-336(g)(1) relative to the three-year limitation contained therein. This court is compelled also to find, in light of the holding in Tracy, that despite the three-year limitation, the tolling provision of § 38a-336(g)(2) was available to the plaintiff, no matter how much time ensued between March 22, 2003, (three years from the date of the accident), and the receipt of the plaintiff of notice of the insolvency of the tortfeasor's carrier. Whether, days, months or years beyond March 22, 2003, the plaintiff would be able to file a legally viable action against Allstate, by virtue of said tolling provision, within one year of the receipt of the insolvency notice.
Thus, in the instant case, the plaintiff having received the insolvency notice on December 13, 2001, had the statutory option to file the present action against Allstate on or before December 13, 2002, via 38a-336(g)(2) or the plaintiff, pursuant to § 38a-336(g)(1), could have waited the additional three months. The plaintiff did not follow either provision and filed the present action on February 20, 2004 — fourteen months beyond that permitted by the former and eleven months beyond that permitted by the latter.
The defendant's motion for summary judgment is granted.
BY THE COURT,
Wilson, J. Trombley, Judge