Opinion
FBTCV156054106
01-05-2018
Jennifer EDWARDS v. MARKEL CORPORATION et al.
UNPUBLISHED OPINION
OPINION
KAMP, J.
The defendants separately filed motions for summary judgment which are now before the court. For the reasons cited herein, these motions are granted.
FACTS
The plaintiff, Jennifer Edwards, filed the second amended complaint (# 139) in the present case on March 2, 2017, in which she alleges the following facts. By way of background, the plaintiff obtained a stipulated judgment against Dr. Joel W. Allen (Dr. Allen) on or about March 5, 2014, after the plaintiff filed suit seeking damages for complications arising from a surgery performed by Dr. Allen. Pursuant to the stipulated judgment, Dr. Allen assigned to the plaintiff all of his rights and interests against his insurers, including defendants Evanston Insurance Company (Evanston); Healthcare Provider Insurance Services, LLC (Provider); and Provider’s employee, Robert Price (Price). Generally, in the present case, the defendants failed to indemnify Dr. Allen pursuant to the terms of the applicable professional liability policy and also knowingly issued and induced Dr. Allen to take out an illegal, defense cost only policy of insurance, which failed to comply with General Statutes § 20-11b.
General Statutes § 20-11b provides in relevant part: " [E]ach person licensed to practice medicine and surgery under the provisions of section 20-13 who provides direct patient care services shall maintain professional liability insurance or other indemnity against liability for professional malpractice. The amount of insurance which each such person shall carry as insurance or indemnity against claims for injury or death for professional malpractice shall not be less than five hundred thousand dollars for one person, per occurrence, with an aggregate of not less than one million five hundred thousand dollars."
Count one of the second amended complaint states a claim for breach of contract against Evanston. Count two alleges a breach of the implied covenant of good faith and fair dealing, also against Evanston. Counts three, four, and five state claims for professional negligence, fraud or intentional misrepresentation, and breach of fiduciary duty, respectively, against both Provider and Price.
On April 17, 2017, Provider and Price filed a motion for summary judgment (# 150), which was accompanied by a memorandum of law (# 151). Evanston filed a motion for summary judgment (# 158) with an accompanying memorandum of law (# 159) and exhibits (# 160) on July 17, 2017. The plaintiff filed a memorandum of law in opposition to the defendants’ motions (# 161) on September 5, 2017. Evanston responded to the plaintiff with another memorandum on September 7, 2017 (# 162); the response from Provider and Price was filed on September 8, 2017 (# 163). The parties were heard on September 8, 2017.
DISCUSSION
" Summary judgment is a method of resolving litigation when 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 ... The 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 ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" Summary judgment may be granted where the claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " 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, 727 A.2d 1276 (1999).
Both the defendants argue that the plaintiff’s claims are barred by the applicable statutes of limitations. Specifically, Evanston argues that the plaintiff stepped into Dr. Allen’s shoes pursuant to the stipulated judgment’s assignment, and because Dr. Allen was to bring a breach of contract claim no later than May 30, 2014, the present case- which commenced in December of 2015- is untimely under General Statutes 52-576. Provider and Price similarly contend that because all of the alleged acts and omissions occurred in 2008, the present case is untimely pursuant to General Statutes 52-577.
General Statutes 52-576 provides in relevant part: " No action for an account, or 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 ..."
General Statutes 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
In addition to their arguments concerning timeliness, the defendants assert that they are entitled to summary judgment on other grounds as well. With regard to count one, Evanston challenges the plaintiff’s ability to recover under the terms of Dr. Allen’s defense only policy; for count two, Evanston contends that the plaintiff’s claim must fail due to her inability to demonstrate bad faith, as Evanston has not been shown to have breached any term of the contract or taken any discretionary steps in determining coverage. Provider and Price also contend that summary judgment is warranted as the plaintiff has failed to provide adequate proof to support her allegations, noting in particular that the plaintiff has not disclosed an expert witness and has not responded to written discovery requests.
The plaintiff argues that the defendants are not entitled to judgment as a matter of law. First, the plaintiff contends that because her claims arise under General Statutes § 38a-312, the action is therefore not time-barred. The plaintiff argues that pursuant to § 38a-312, she was unable to bring the present case until thirty days after the date the final judgment- the stipulated judgment reached between the plaintiff and Dr. Allen- was rendered in the underlying case, and therefore time began to run on April 4, 2014. Accordingly, the plaintiff maintains that because she brought this action in December of 2015, it is timely under all applicable statutes of limitations. The plaintiff also argues, with regard to the argument concerning the lack of expert testimony from Provider and Price, that such evidence is not necessary because Price’s violation of the standard of care is so clear cut in the present case.
The plaintiff identifies General Statutes § 52-584 as the applicable statute of limitations for professional negligence. General Statutes § 52-584 provides: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
In response, the defendants contend, inter alia, that the present case does not arise under § 38a-312. The defendants argue that although Dr. Allen was insured against the judgment obtained by the plaintiff, Dr. Allen’s insurance was for defense costs only, not indemnity. Accordingly, the defendants assert that the plaintiff is unable to meet one of the requirements set out in § 38a-321.
As the plaintiff does not appear to dispute that, as measured from the time of her injury, her claims are untimely, the timeliness of the present case turns upon whether the present case arises under § 38a-321. General Statutes § 38a-321 provides in relevant part: " Upon the recovery of a final judgment against any person ... for loss or damage on account of bodily injury, ... if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment." (Emphasis added.)
In an action brought pursuant to § 38a-321, " [l]iability cannot be imposed upon the defendant insurance carrier simply because ... the policyholder is legally liable to answer in damages to the [plaintiff]. The insurance carrier’s liability can arise only because of and under the terms of the insurance contract." (Internal quotation marks omitted.) Team Rental Group, Inc. v. ITT Hartford Group, Inc., 46 Conn.Supp. 480, 484, 755 A.2d 382 (1998), aff’d, 59 Conn.App. 110, 755 A.2d 971 (2000). In Team Rental Group, the court determined that the insurance policy at issue excluded coverage for damage of the sort claimed by the plaintiff. Id. " Since the exclusion clearly applies and [the insured party] may not recover for the damage ... the plaintiff also cannot recover from the defendants [insurers] in the present action since the plaintiff simply stands in the shoes of [the insured party] when making a claim under § 38a-321." Id., 485-86.
Jack A. Halprin, Inc. v. Hermitage Ins. Co., 58 Conn.App. 598, 753 A.2d 954 (2000), echoes this reasoning. In Jack A. Halprin, the Appellate Court determined that although the plaintiff had obtained a judgment for property damage against the insured, because property damage was not covered by the insurance policy, the insurers were not liable to the plaintiff in an action brought pursuant to § 38a-321. Id., 601-02. Essentially, because the insurance policy did not cover the damages claimed in the action brought against the insured party, the plaintiff could not recover directly from the insurer-defendant. Id.; see also Clinch v. Generali -U.S. Branch, 110 Conn.App. 29, 40, 954 A.2d 223 (2008) (in action brought pursuant to § 38a-321, plaintiff unable to recover defense costs from insurer where " it was the intent of the parties, the defendant [insurer] and the insured, to exclude [the kind of claim advanced by the plaintiff] from coverage"), aff’d, 293 Conn. 774, 980 A.2d 313 (2009).
In the present case, although the plaintiff does bring a direct action against Dr. Allen’s insurers following an unsatisfied judgment against Dr. Allen, the plaintiff’s claims do not arise under § 38a-321. The terms of Dr. Allen’s insurance policy are for defense costs only rather than indemnification. Just as Dr. Allen would be unable to recover the damages sought by the plaintiff, the plaintiff- who stands in the shoes of Dr. Allen- is unable to recover against the defendants. Essentially, because Dr. Allen’s insurance policy does not include the type of recovery sought by the plaintiff, the present case does not arise under § 38a-321, and therefore the plaintiff’s attempt to evade the applicable statutes of limitations by invoking § 38a-321 must fail.
As the defendants need only raise one legally sufficient defense for the court to grant summary judgment; Serrano v. Burns, supra, 248 Conn. 424; the defendants are entitled to judgment as a matter of law if § 38a-321 does not operate to save the present case. At oral argument on this matter, the plaintiff argued that even if the defense cost only policy does not entitle her to recover the damages she claims, the court should invalidate the policy as a violation of public policy.
Justice Zarella addressed the role of the judicial branch as it relates to matter of public policy in Cefaratti v. Aranow, 321 Conn. 593, 626-36, 141 A.3d 752 (2016) (Zarella, J. dissenting). In Cefaratti, the court adopted a new standard for establishing apparent agency in tort actions in a medical malpractice action. Id., 596-97. Justice Zarella disagreed with the majority opinion as to whether the issue was one of first impression, and accordingly, the policy analysis in his dissenting opinion is an alternative, rather than contradictory, approach. In his dissenting opinion, Justice Zarella noted that " [s]triking a balance between competing private interests and public policy considerations undoubtedly has been a function of the Legislative Branch due to its institutional aptitude to address such issues. There are a variety of questions that arise in the context of considering whether to expand liability and, relatedly, who should bear the burden for such liability ... Prior to making a determination, the decision maker might ... consider General Statutes § 20-11b(a), which requires certain medical providers to maintain minimum liability insurance, and collect cases, if any exist, in which such minimum coverage was insufficient to adequately compensate patients who had been victims of medical malpractice." Id., 633-34. With regard to § 20-11b(a), the dissenting opinion goes on to note that " [i]t is certainly arguable that the enactment of such a requirement reflects the legislature’s judgment that individual health-care providers, and not hospitals, should be liable for their own negligence, and that, if the liability insurance required by such statute is inadequate to provide relief to the plaintiff in the present case and those individuals similarly situated, their recourse is to ask the legislature to increase the minimum amount of coverage required." (Emphasis added.) Id., 634 n.2. The majority opinion appears to have only considered public policy insofar as it concerned the hospital’s liability and the insurers’ ability to calculate premiums. Accordingly, although it is expressed in a dissenting opinion, Justice Zarella’s conclusion appears to offer some guidance.
Two earlier Superior Court decisions align with Justice Zarella’s view of the role of the judiciary in circumstances similar to the present case. In Jones v. Penn-America Ins. Co., Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-00-0079440-S (November 10, 2003, Sferrazza, J.), the insured party assigned to the plaintiff its right to recover against the insurer. The insurance policy in question expressly excluded coverage for liquor-related liability, which prevented the plaintiff’s recovery; as a result, the plaintiff argued that the policy’s exclusion violated public policy. Id. The court noted that the plaintiff could not identify any " Connecticut case which has ever held that liquor liability exclusions from commercial general liability insurance contracts contravene any public policy. Nor does any statute or regulation mandate the inclusion of such coverage in this type of insurance policy." Id. The court noted that those seeking insurance could seek out policies that covered this kind of risk, but determined nevertheless that " [e]ven if such coverage were utterly unavailable, it is beyond the responsibility of a court to mandate such coverage in commercial general liability insurance contracts. The policy decision warranting such mandatory coverage must come from the legislature or regulatory authority." Id. Similarly, in Cage v. Litchfield Mutual Ins. Co., 45 Conn.Supp. 298 (1997), the court determined that an insured party’s failure to file an endorsement did not void the policy where the legislature’s intent as to the consequences of such a failure were not clear, and particularly where voidance would require the insurer to provide coverage for a risk which was not reflected in the premiums that were paid. Overall, these decisions appear to indicate hesitancy with regard to finding insurance policies to be in violation of public policy or otherwise invalid, absent some direction from the legislature.
Nor would guidance from the legislature necessarily favor the plaintiff’s position; at least one court determined that public policy favored allowing a tail policy with a defense within limits provision in order to keep premiums affordable. " Under West Virginia law, the defense within limits provision in medical malpractice insurer’s tail endorsement to insured’s policy did not violate public policy; strong public policy of West Virginia was to promote affordable, accessible tail coverage that balanced the interests of both patients and physicians, and foreclosing carriers of tail insurance from including defense costs within the available liability limits upon an insured’s default, as insurer did, would have increased the cost of tail insurance in West Virginia and run afoul of the legislature’s stated goal of promoting stable and affordable tail insurance premiums. West’s Ann. W.Va. Code , 11-13T-1. West Virginia Mut. Ins. Co. v. Vargas, 933 F.Supp.2d 847 (N.D.W.Va. 2013) (applying West Virginia law)." Annot. 21 A.L.R. 6th 515, § 7 p. 35 (Sup. 2017).
In the present case, the plaintiff argues that this court should find that Dr. Allen’s defense cost only policy is in violation of public policy. At oral argument, however, the plaintiff was unable to identify any specific authority, statutory or otherwise, in support of this argument. Although the court is sympathetic to the plaintiff’s circumstances, precedent indicates that determining any exclusions or limitations in the underlying insurance policy to be against public policy- and permitting a party to recover notwithstanding the language of the policy- is not a decision to be made by this court.
CONCLUSION
For the foregoing reasons the motions for summary judgment are granted.