Opinion
No. CV 01 0186778 S
September 2, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT ALLSTATE INSURANCE COMPANY
This matter comes before the court on a Motion for Summary Judgment made by the Defendant Allstate Insurance Company. For the reasons set forth below, the motion is GRANTED.
Relevant and Undisputed Facts
This action was commenced on November 21, 2001 against defendant Serge Raymond and Stamford Taxi, Inc., seeking recompense for injuries suffered as a result of a motor vehicle accident which occurred on December 17, 1999. At the time of the automobile accident, the plaintiff was insured by defendant Allstate Insurance Company (Allstate) and her policy included uninsured motorist coverage. At the time of the accident, the alleged tortfeasor, Serge Raymond and Stamford Taxi, Inc. were insured by Reliance Insurance Company (Reliance). The plaintiff's policy required that any claim for uninsured motorist benefits be made within three years from the date of the accident.
On December 6, 2001, the plaintiff was advised that the liability insurer for the defendant, Reliance, had been declared insolvent on October 3, 2001. On August 3, 2004, the plaintiff filed a motion to cite in Allstate as a party defendant for the purpose of pursuing uninsured motorist coverage. That motion was granted and the complaint against Allstate, as amended, was deemed filed as of August 16, 2004.
Standard of Review
Allstate seeks summary judgment on two grounds: (1) that the suit against Allstate was not commenced within the statute of limitations for pursuing uninsured motorist coverage as located at CGS § 38a-336(g)(2); and (2) the action was brought outside the time period provided for in the plaintiff's policy.
A party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law. PB § 17-44; Appleton v. Board of Education, 254 Conn. 205 (2000). Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact. Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations are not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984).
Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence. PB § 17-46. Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997).
Discussion
In this case, the time-line of events is not in dispute; nor is the content and requirements of the Allstate insurance policy. The accident occurred on December 17, 1999. Under the policy, the claim against Allstate was required to be commenced on or before December 17, 2002. Specifically, the policy, at Part 6, governing "Uninsured Motorists" coverage provides:
Legal Actions
No one may sue us under this coverage unless there is full compliance with all policy terms. Any legal action against Allstate must be brought within three years from the date of the accident.
The complaint against Allstate was deemed filed as of August 16, 2004.
CGS § 38a-336(g)(1) creates a minimum statute of limitations of three years for pursuing uninsured motorist claims by precluding insurers from providing for any lesser period of time in policies. Section 336(g)(2) provides for a minimum statute of limitations in those circumstances when a tortfeasor's liability carrier is deemed insolvent. In such a circumstance, as a measure of extra protection, the insured is given a one-year period, dating from notification of the insolvency of the tortfeasor's insurer, to bring an action for uninsured motorist coverage. Here, the added protection of the one-year period in the case of insolvency was of no moment. One year from the notification of insolvency was still within the three-year period provided for in the policy.
The plaintiff argues that the statute of limitations for this action is located at CGS § 52-576(a), which provides for a six-year statute of limitations for uninsured motorist claims. The plaintiff further avers, that under Polizos v. Nationwide Mutual Ins. Co., 54 Conn.App. 724 (1999), the uninsured motorist claim did not accrue until the plaintiff was notified of the insolvency of Reliance. Thus, she argues, the suit was commenced within the applicable time frame. The plaintiff's argument utterly ignores the language of the policy as well as controlling precedent which holds that when a policy provides for a limitations period that requires a suit to be brought from the date of the accident, such policy provisions will be enforced. McGlinchey v. Aetna Casualty Surety Co., 224 Conn. 133, 140 (1992); Hotkowski v. Aetna Life and Casualty Co., 224 Conn. 145, 149-51 (1992). Indeed, in Polizos, the Appellate Court noted that its decision would have no application to those circumstances when a policy specifically provided for a limitations period to begin running from the date of the accident. Polizos, 54 Conn.App. at 730, citing McGlinchey, supra, and Hotkowski, supra.
It is worth noting that CGS § 38a-336(g)(1) and (2) were enacted in view of the Supreme Court's decisions in McGlinchey and Hotkowsky in an effort to cure a perceived flaw in the statutory scheme. Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 334-35 (2003). The unique situation presented here, that is, that notice of insolvency occurred well before the contractual limitations period, renders the saving clause of 38a-336(g)(2) of little assistance to the plaintiff.
The plaintiff argues that the insolvency of Reliance renders the limitations period contained in the contract of no moment. She argues that the absence of a provision specifically addressing the insolvency of a tortfeasor's liability carrier, requires that the court apply the statutory six-year limitations period. The plaintiff relies upon the statutory language of 38a-366(g)(2) which precludes insurers from imposing a limitation of less than one year from the date that the insured receives notice of insolvency of a tortfeaser's liability carrier. This prohibition, she argues, imposes an affirmative obligation upon insurers to include a policy provision governing the case of an insolvent liability carrier. In the absence of such a contractual provision, she argues, the 6-year statute of limitation is applied. The court does not construe the statute as imposing such an affirmative obligation on insurance carriers. The statute is designed to preclude carriers from enforcing a contractual provision which would otherwise bar a claim when the notice of insolvency is received after the contractual limitations period has expired or within one year of such an expiration date.
The plaintiff's argument is made without case authority; the court can find no such authority and otherwise does not make sense to this court. An uninsured motorist claim may be brought under one of two circumstances; (1) the tortfeasor did not carry any (or sufficient) insurance or (2) the tortfeasor's liability carrier is or becomes insolvent. There is no logical basis upon which to limit the limitations period contained in the contract to only the first of these two scenarios.
The suit against Allstate was untimely. Summary judgment is granted in favor of defendant Allstate.
SO ORDERED.
Kari A. Dooley, Judge