Opinion
No. CV 10 6005265
October 20, 2011
MEMORANDUM OF DECISION RE (#111) PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND (#115) DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
In this action, the plaintiffs, Lester A. Norris and William Norris, seek a declaratory judgment pursuant to General Statutes Section 52-29 and Practice Book Section 17-54, et seq., declaring that the defendant, Plymouth Rock Assurance Co., owes a duty to the plaintiffs to defend them against a claim for bodily injuries and property damage under the policy of insurance issued to the plaintiffs by the defendant.
The plaintiffs have alleged in their complaint that they had a policy of automobile insurance with the defendant for the period from April 4, 2007 until April 7, 2008. They further allege that on February 12, 2008, while the policy was in effect, a motor vehicle collision occurred while the insured vehicle was being operated by an authorized driver.
On or about January 7, 2008, the defendants sent the plaintiffs a cancellation notice which stated that coverage would be terminated at 12:01 a.m. on February 1, 2008, if the premium for the policy was not paid in full by that time. The plaintiffs allege that they mailed an amount equal to one-half of the requisite payment on January 10, 2008 and mailed a payment of the remaining half of the premium to the insurer on January 28, 2008, and filed an affidavit of Lester Norris to verify that allegation. On February 5, 2008, the defendant purportedly mailed the plaintiffs a letter advising them that the policy had been cancelled on February 1, 2008, as per the cancellation notice. The defendants also sent the plaintiffs a pro-rated refund check sometime on or after February 15, 2008-several days after the claim regarding the February 12, 2008 accident.
The plaintiffs have moved for summary judgment arguing that there is no genuine issue of fact with respect to the allegations in their complaint.
The defendant has filed an objection to the plaintiffs' motion for summary judgment and the defendant has filed its own cross motion for summary judgment.
The parties appeared before the Court and were heard regarding the relief sought in their respective motions and the Court reserved decision.
"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." Miles v. Foley, 253 Conn. 381, 385-86 (2000).
"Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213, 217 (1994).
IN REGARD TO THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT:
The "mail bag rule," as it is known in contract law, provides that, "in any case where a mailed acceptance is reasonable . . . [a] contract is regarded as made at the time and place that a letter of acceptance is put into possession of the postal service." 1A. Corbin, Contracts (1993) § 3.24, p. 437.
"If a person to whom money is due either by express assent or by a course of dealing from which assent may be inferred, authorizes its transmission by mail, the person from whom it is due is relieved from the consequences of default if is duly and properly put in the mail." Kerin v. Udlof, 165 Conn. 264, 268 (1973).
In their brief, the plaintiffs cite a New Jersey case with facts similar to those in the instant case. In that case, the insurer directed a letter to the insured, which was posted on March 1, 1994, advising that they had failed to pay their premium which was due and informing them that if they did not pay the premium by 12:01 a.m. on March 16, the policy would automatically be cancelled. It went on to advise that if the payment was made on or before the cancellation date, the policy would remain in effect. On March 15, the insured placed the requisite payment in the mail. The insured was involved in an accident on March 16 and the insurer denied coverage. While the trial court held for the insurer, on appeal that decision was reversed by the appellate court holding that under the mailbox rule the insured's payment by certified mail on the day before expiration avoid cancellation. That court went on to state that since the insurer had addressed the insured by mail concerning the late premium, it authorized the insured's response with payment by mail and constituted the postal authorities as its agent. Osoka v. Hall, 315 N.J.Super. 437 (1998).
The plaintiffs also cite Echaverria v. National Grange Insurance Company, 275 Conn. 408 (2005). In that case the insured claimed that the insurer needed to prove that the insured actually received a notice of cancellation. The insurer argued that there was no need to provide actual notice, but even if the court found there was, the insured failed to overcome the presumption of receipt established by the mailbox rule. In conclusion, the court stated that without any evidence rebutting receipt of the cancellation notice generated by the mailbox rule, the insured was deemed to have been given proper notice of the cancellation of the policy.
In the instant case the court finds that there is no genuine issue of fact as to the plaintiffs' claim that payment was posted to the insurer before 12:01 a.m. on February 1, 2008 and that under the "mailbox rule" that mailing constituted timely payment of the premium that was due.
For that reason, the court grants the plaintiff's motion for summary judgment and orders the defendant, Plymouth Rock Assurance Company to reinstate policy No. PRA10008065146 held in the names of Lester A. Norris and William Norris effective February 1, 2008.
IN REGARD TO THE DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT:
The court has considered the case law and the arguments of counsel in regard to the cross motion for summary judgment filed by the defendant, Plymouth Rock Assurance Company which deals with the same set of facts as set forth in the plaintiffs' motion for summary judgment.
The factual issue in dispute regarding cross motion for summary judgment filed by the defendant Plymouth Rock Assurance Company is whether or not the plaintiffs received the cancellation notice allegedly sent by the insurer on or about February 5, 2008. The defendant insurance company filed an affidavit that such a notice was sent. The insureds averred that they received no indication that their payment was rejected as late and that the policy was not terminated until after they reported an accident claim on February 12, 2008. They offered an affidavit to that effect and pointed out that it was only after the insurer sent them a pro-rated reimbursement check on February 15, 2008 (after they reported the February 12, 2008) that they learned that the insurer had cancelled the policy.
Based on those conflicting affidavits, the court finds that the movant, Plymouth Rock Assurance Company, has failed to establish that there is no genuine issue as to that fact.
That question of the disputed February 5, 2008 notice is a genuine issue of material fact for the reason that absent such notice to the insureds, the argument exists that the insurance company's cashing of the insured's check and the retention of those funds until after the February 12, 2008 claim of loss constituted a waiver by the insurer of the claimed cancellation on February 1, 2008.
"In opposing a motion for summary judgment, a party is not required to present evidence necessary to prevail at trial, only evidence sufficient to raise issues of fact." Vaillancourt v. Latifi, 81 Conn.App. 541, 544 (2004).
For the foregoing reasons, the defendant Plymouth Rock Assurance Company's cross motion for summary judgment is denied.