Opinion
No. CV02 401 30 05
September 27, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT ( #137, 164)
This suit arises from a contract of insurance issued to the plaintiff, Shawn West, by the defendant, Allstate Insurance Co. (Allstate). This action is against Allstate and against Robert Harrison acting individually and as an agent of Allstate. The plaintiff's third revised complaint alleges that the plaintiff purchased a condominium owner's insurance policy from Allstate to insure the plaintiff's property from theft and other losses. In count one, the plaintiff alleges that his property was forcibly broken into on or about February 13, 2000. He alleges that he lost property in the amount of $17,500 and that he made a timely claim on his policy, which was not honored by Allstate.
The plaintiff's third revised complaint was filed on June 11, 2003. Allstate's supplemental motion for summary judgment was filed on February 27, 2006 and is directed towards the third revised complaint. On June 15, 2006 the plaintiff filed a request for leave to amend his third revised complaint together with an amended complaint. Although this decision is directed towards the allegations of the third revised complaint, the allegations contained in the subsequently filed complaint would not alter the decision of the court.
Count two alleges that on or about April 4, 2000, the plaintiff's property was again forcibly broken into, resulting in another loss of the plaintiff's property in the amount of $7,670. The plaintiff again alleges that he made a timely claim on his policy and that Allstate did not honor the claim.
Count three alleges that the Plaintiff gave all the required information regarding his claim to Harrison and that Harrison destroyed or purposely misplaced the information, causing his claims to be denied. Count three is not challenged by the present motion for summary judgment.
On March 2, 2005, the defendants filed a motion for summary judgment as to counts one and two of the third revised complaint, accompanied by a memorandum in support, as well as a certified copy of the condominium owner's insurance policy issued to the plaintiff by Allstate. On March 24, 2005, the plaintiff submitted a memorandum in opposition.
On March 31, 2005, in order to allow adequate time for discovery, the court, Miller, J., denied the defendants' motion for summary judgment without prejudice. Subsequently, the court, Stengel, J., denied all disputed discovery requests. Consequently, on February 27, 2006, the defendants filed a supplemental motion for summary judgment indicating that the plaintiff's discovery requests had been complied with and that the defendant's motion, filed March 2, 2005, was ready for resolution. On June 15, 2006, the plaintiff filed a memorandum in opposition to the defendants' supplemental motion for summary judgment accompanied by an affidavit of the plaintiff.
"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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
The defendant argues that the contract of insurance specifically provided that any suit or action under the policy must be brought within one year of the loss or damage. As the plaintiff's suit was commenced by service of process on October 10, 2002, the defendant maintains that the plaintiff failed to adhere to the terms of the policy, which are a valid condition precedent to recovery. Finally, the defendant argues that discovery is complete and the issues are properly before the court.
The plaintiff argues that there are issues of fact related to whether the plaintiff did comply with the terms of the policy. The plaintiff argues that the defendants waived the one-year provision of the insurance contract since the defendants failed to provide him with a proof of loss form, necessary for the resolution of his claims. Additionally, he contends that the defendants failed to provide him with a copy of the policy before, during or after the filed notice of his claim. Thus, the plaintiff argues that since he was never provided with the a copy of the insurance policy, the one-year provision cannot be asserted against him and, as such, he has a good faith basis for his failure to comply with the one-year provision.
The defendants' arguments turn on whether or not the plaintiff commenced suit within the time limited by the policy. "The Connecticut Supreme Court has long held that a contractual condition in an insurance policy requiring an action to be brought [within] a particular time period is a part of the contract . . . [and] is valid and binding upon the parties . . . Thus . . . non-compliance with such a provision is a complete defense, unless the plaintiff in his reply alleges facts sufficient in law to excuse his nonperformance of the condition." (Citation omitted; internal quotation marks omitted.) Kenneth v. One Beacon Ins., Superior Court, judicial district of New London at Norwich, Docket No. 0128895 (October 24, 2005, Hurley, J.T.R.) ( 40 Conn. L. Rptr. 170, 171-72). "Such excuses include: (1) impossibility of performance under the law of contracts; (2) waiver by the insurer; or (3) conduct engaged in by the insurer constituting an estoppel to the assertion of nonperformance." (Internal quotation marks omitted.) Green v. Royal Indemnity Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0283499 (June 8, 2004, Wiese, J.).
See Chichester, Admr. v. New Hampshire Fire Ins. Co., 74 Conn. 510, 512-13, 51 A. 545 (1902); Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979). Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 383-84, 716 A.2d. 883 (1998).
See Vincent v. Mutual Reserve Fund Life Ass'n., 74 Conn. 684, 686, 51 A. 1066 (1902); Chichester, Admir. v. New Hampshire Fire Ins. Co., 74 Conn. 510, 513, 51 A. 545 (1902).
The plaintiff does not claim impossibility of performance or estoppel, but argues that Allstate waived its rights under the contract since it did not provide him with a copy of the insurance policy or the proof of loss forms necessary for the resolution of his claims. "Waiver consists of the intentional abandonment or voluntary relinquishment of a known right. Whether a waiver has occurred is a question of fact . . . Waiver involves the idea of assent, and assent is an act of understanding . . . Intention to relinquish must appear, but acts and conduct [consistent] with intention to [relinquish] . . . are sufficient . . . Thus, [w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Brown, 67 Conn.App. 183, 188, 786 A.2d 1140 (2001), cert denied, 259 Conn. 919, 791 A.2d 568 (2002).
The evidence presented also does not support either a claim of impossibility or estoppel, if proposed by the plaintiff.
While issues of waiver are generally reserved for the trier of fact; see AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 622, 866 A.2d 582 (2005); no evidence has been submitted that would raise a genuine issue of fact that the defendant, in fact, waived its rights under the policy to require commencement of suit in a timely manner. In addition, "[t]he general rule is that where a person of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person's] duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artiface, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a [person] of reasonable business prudence off . . . guard in the matter." (Internal quotation marks omitted.) First Charter National Bank v. Ross, 29 Conn.App. 667, 671, 617 A.2d 909 (1992), cert. granted, 225 Conn. 903, 621 A.2d 286 (1993), appeal dismissed, 228 Conn. 203, 635 A.2d 796 (1994).
In the present case, the plaintiff is seeking the benefit of his contract with Allstate and is not challenging the existence of the one-year limitation. Instead, the plaintiff claims that he never received a copy of the contract and that Harrison failed to provide him with a proof of loss form, thus constituting a waiver of the one-year limitation. Since he is not challenging the existence of the policy, there is no issue of material fact as to whether the plaintiff is charged with knowledge of the terms of the contract. Additionally, the contract does not require the plaintiff to receive a proof of loss form in order to bring suit. Rather, the contract requires the plaintiff to bring suit within one year of the loss. As such, there is no issue of material fact as to the validity of the one-year limitation on suit contained in the insurance contract.
Since the defendant has met its burden of establishing that no question of material fact exists as to the validity of the one-year provision, the burden now shifts to the plaintiff to prove the existence of a disputed fact. See Martel v. Metropolitan District Commission, supra, 275 Conn. 46-47. The plaintiff relies on his own affidavit and argues that he never received a copy of the insurance contract and that he never received a proof of loss form, thus excusing his delay in bringing suit. Since the plaintiff was charged with knowledge of the contract provisions and since receipt a proof of loss form was not a condition precedent to bringing suit, the plaintiff has not demonstrated the existence of a disputed material fact as to the validity or enforceability of the one-year provision in the policy. As such, the defendants are entitled to judgment as a matter of law on counts one and two of the complaint.
For the foregoing reasons, the defendants' motion for summary judgment, as to counts one and two of the complaint, should be and is hereby granted.