Opinion
No. CV08-5017494S
June 16, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#102)
FACTS
The matter presently before the court arises out of an alleged theft on February 1, 2006. The complaint, returnable on February 12, 2008, alleges that the defendant, Safeco Insurance Company of America, issued an insurance policy to the plaintiff, Terrence Lee, and has failed to pay the plaintiff for the February 1, 2006 loss which was covered under the policy.
On March 13, 2008, the defendant filed a motion for summary judgment on the basis that the plaintiff's lawsuit is barred by the one year suit limitation provision in the policy. The plaintiff filed his objection on May 22, 2008; the matter was heard at short calendar on June 10, 2008.
DISCUSSION
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, 567 A.2d 829 (1989). As the party moving for summary judgment, the plaintiff is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (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 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." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
"[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge;' (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. It is not enough, however, for the opposing party merely to assert the existence of such a dispute issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998).
When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, supra, 231 Conn. 795.
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." . . . "(Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
The defendant argues that the plaintiff's action is time-barred by the one-year suit limitation contained in his policy of insurance with the defendant. In support of its motion, the defendant has submitted, inter alia, a certified copy of the policy, with effective dates of September 2, 2005 to September 2, 2006, as well as a copy of the affidavit of Elizabeth Tobler, a claims adjuster for Safeco, which indicates that the plaintiff, through his attorney, was sent a certified denial letter for the claim on August 28, 2006; that denial letter advised the plaintiff, through his attorney, that any suit against Safeco must be brought within one year from the date of loss, and quoted the applicable policy provision in that regard.
On April 4, 2008, the defendant filed a "Supplement" to its motion for summary judgment, purportedly attaching the original affidavit of Ms. Tobler; that original affidavit was not attached. No objection in that regard was filed by the plaintiff, and this court is satisfied with the copy of the affidavit contained in the court file.
The plaintiff, in his objection, admits that the lawsuit was filed more than one year after the loss. Essentially, the plaintiff argues that he did not intend to waive his right to bring suit, the defendant has not been prejudiced, and issues of material fact exist as to whether the defendant properly denied the claim.
It is uncontroverted that the policy of insurance in effect at the time of the February 1, 2006 alleged loss provided for a one-year period within which the plaintiff could bring a lawsuit. Section 1 — Property Conditions, at Section 8 states, "[n]o action shall be brought against us unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage." Here, the file reflects that the defendant was served on January 23, 2008, nearly two years after the date of loss of February 1, 2006. Indeed, the plaintiff admits that the lawsuit was filed more than one year after the loss.
The plaintiff does not argue that the one year contractual provision is invalid. In Monteiro v. American Home Assurance Co., 177 Conn. 281, 283 (1977), a case involving a claim under a fire insurance policy, the Connecticut Supreme Court made clear that a provision in an insurance policy requiring suit to be brought within one year of the loss is a valid contractual obligation, and the rights of the parties under the contract must be governed by the rules of law applicable to contracts. In the present case, the plaintiff makes no claim and advances no argument that any conduct or action on the part of Safeco is responsible for the insured's failure to comply with the condition precedent in the contract of insurance of bringing suit within one year and has raised no facts that would indicate conduct by the defendant constituting waiver or estoppel. Viewing the evidence in the light most favorable to the plaintiff, there is no genuine issue of fact for the jury.
Connecticut General Statute § 38a-290, "Time limitation on suits and arbitration claims," authorizes a one-year time limitation and provides in relevant part as follows:
No insurance company doing business in this state shall limit the time within which any suit shall be brought against it or any claim shall be submitted to arbitration on (1) a fidelity or surety bond to a period less than three years from the time when the loss insured against occurs; (2) a construction performance bond to a period less than three years from the date on which the principal last performed work under the contract; (3) a construction payment bond to a period less than three years from the date on which the claimant last performed work or supplied material for which the claim is made; and (4) all other policies to a period less than one year from the time when the loss insured against occurs.
For the foregoing reasons, the defendant's motion for summary judgment is granted.
CT Page 10102