Opinion
HHDCV156062500S
05-31-2017
Donna Wilson v. Central Mutual Insurance Co.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
ROBERT B. SHAPIRO, JUDGE.
This matter is before the court concerning the defendant Central Mutual Insurance Company's motion for summary judgment (#106). The court heard oral argument concerning the motion on April 10, 2017. For the reasons stated below, the motion is granted.
I
Background
In the plaintiff's complaint, she alleges that she suffered personal injuries in a motor vehicle accident which occurred in Windsor, Connecticut on April 10, 2013, when a vehicle she was operating was struck by a vehicle being driven by John Taylor (tortfeasor). She alleges that she was covered under an automobile insurance policy issued by the defendant (policy). See complaint, ¶ 11.
The plaintiff also alleges that the tortfeasor was operating an underinsured motor vehicle and that the losses and damages she sustained are the legal responsibility of the defendant under the terms of the policy and General Statutes § 38a-336, et seq. See complaint, ¶ ¶ 13-14.
In the motion, the defendant argues that it is entitled to summary judgment since the plaintiff substantially breached the cooperation provision provision of the policy, and caused substantial prejudice to the defendant, by failing to provide pertinent medical records and failing to produce her treating medical provider and expert for deposition.
Additional references to the factual background are set forth below.
II
Standard of Review
" 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. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 312-13.
III
Discussion
" A cooperation clause in a liability insurance policy requires that there shall be a fair, frank, and substantially full disclosure of information reasonably demanded by the insurer to enable it to prepare for, or to determine whether there is, a genuine defense . . . [I]t has been held that an insured's failure to disclose information breached a cooperation clause [when] . . . [t]he insured . . . [f]ailed to provide information requested by the insurer." (Internal quotation marks omitted.) Double G.G. Leasing, LLC v. Underwriters at Lloyd's, London, 116 Conn.App. 417, 433, 978 A.2d 83, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009). See Chicago Title Ins. Co. v. Bristol Heights Associates, 142 Conn.App. 390, 70 A.3d 74, cert. denied, 309 Conn. 909, 68 A.3d 662 (2013) (insured's failure to disclose information breached cooperation clause when insured failed to provide information requested by insurer).
" Generally, in the absence of a reasonable excuse, when an insured fails to comply with the insurance policy provisions . . . the breach generally results in the forfeiture of coverage, thereby relieving the insurer of its liability to pay, and provides the insurer an absolute defense to an action on the policy." (Internal quotation marks omitted.) Double G.G. Leasing, LLC v. Underwriters at Lloyd's, London, supra, 116 Conn.App. 432. " In the absence of estoppel, waiver or other excuse, cooperation by the insured in accordance with the provisions of the policy is a condition of the breach of which puts an end to the insurer's obligation . . . The lack of cooperation, however must be substantial or material." Id. See Rochon v. Preferred Accident Ins. Co. of New York, 118 Conn. 190, 171 A. 429 (1934).
In Connecticut, " where an insurer raises the issue of the violation of the cooperation clause of the policy by a special defense, the burden is on the plaintiff to prove cooperation by the insured." Double G.G. Leasing, LLC v. Underwriters at Lloyd's, London, supra, 432-33. See O'Leary v. Lumbermen's Mutual Casualty Co., 178 Conn. 32, 38, 420 A.2d 888 (1979) (same).
" The purpose of the cooperation provision is to protect the interests of the insurer . . . If insurers could not contract for fair treatment and helpful cooperation from the insured, they would, at the very least, be severely handicapped in determining how and whether to contest the claim, and might, in addition, be particularly susceptible to possible collusion between the participants in the accident." (Citation omitted; internal quotation marks omitted.) Anton v. Liberty Mutual Ins. Co., 163 Conn. 127, 134, 302 A.2d 284 (1972).
Recent appellate court decisional law provides useful illustrations. In Double G.G. Leasing, LLC, summary judgment for the insurer was affirmed where the plaintiff breached the cooperation provision of the insurance policy by not providing requested tax returns. In addition, the plaintiff did not demonstrate that the insurer was not prejudiced by the breach. " [In] the course of an arson investigation by an insurer, requests for income records are certainly material inquiries and that [i]n view of the fact that direct proof of arson is seldom available, courts have recognized that the requisite degree of proof can be satisfied in civil cases by circumstantial evidence . . . Information gleaned from the tax returns of an individual insured or the officers of a corporate insured can be of crucial significance . . ." (Internal quotation marks omitted.) Double G.G. Leasing, LLC v. Underwriters at Lloyd's, London, supra, 116 Conn.App. 434. The Appellate Court concluded that there was no genuine issue of material fact regarding whether the plaintiff failed to provide the defendant with requested information that the trial court properly deemed to be material to the investigation. See id., 434.
In Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, supra, 142 Conn.App. 409, the defendant's refusal to submit to examination under oath and produce various records and documentation, which reasonably pertained to the loss or damage, was found to breach the policy. The Appellate Court concluded that this was " far from the fair, frank, and substantially full disclosure of information generally required by a cooperation clause like the one set forth in section 5." Id., 410.
Here, the policy, defendant's Exhibit A, pages 11-12 of 14, Part E, includes a " cooperation provision, " entitled " Duties After An Accident Or. Loss, " which provides, in relevant part, " [a] person seeking any coverage must . . . [c]ooperate with us in the investigation, settlement or defense of any claim or suit [; and] . . . [a]uthorize us to obtain . . . medical reports; and . . . [o]ther pertinent records." The policy, page 12 of 14, Part F, also includes a provision entitled " Legal Action Against Us, " which provides, in relevant part, " [n]o legal action may be brought against us until there has been full compliance with all of the terms of the policy."
In its presentation in support of its motion for summary judgment, the defendant has demonstrated that the plaintiff breached the cooperation provision when the plaintiff failed to provide the medical information requested by the defendant. See defendant's Exhibit G, affidavit of Adam Halde, defendant's claim representative (Halde affidavit).
The evidence of lack of cooperation includes the plaintiff's failure to provide the records of her primary care physician for the five year period preceding the accident. These records were requested by defense counsel over a year ago, by letter dated February 1, 2016. See defendant's Exhibit C (letter) and Halde affidavit, ¶ 7.
In addition, the plaintff has not provided pre-accident treatment records of Dr. Kathleen Abbott (see defendant's Exh. I, plaintiff's responses to defendant's interrogatories, No. 20; or those pertaining to treatment by Gina Scully of Enfield Massage Therapy (see defendant's Exh. I, plaintiff's responses to defendant's interrogatories, No. 10. As reflected in her interrogatory responses and deposition testimony, the plaintiff stated that she was treated by both these providers. See plaintiff's deposition testimony (defendant's Exh. p. 8). In view of the defendant's requests and the policy's cooperation requirement, the defendant was not required to file a motion to compel in order to receive the required cooperation.
In opposition, the plaintiff submits the affidavit of an attorney at the plaintiff's counsel's law firm. See plaintiff's Exhibit A (#108). The affidavit refers to various statements made by the plaintiff, the plaintiff's law firm's secretary, and the plaintiff's medical providers. These statements are hearsay.
" Hearsay is generally inadmissible . . . and therefore when deciding a motion for summary judgment a court may not consider material that would be hearsay at trial." (Internal quotation marks omitted.) Bozelko v. Webster Bank, N.A., 159 Conn.App. 821, 826 n.4, 123 A.3d 1250, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015). " Hearsay statements are insufficient to contradict facts offered by the moving party . . . and if an affidavit contains inadmissible evidence it will be disregarded." (Citations omitted; footnote omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994). As the affidavit contains hearsay, the court may not consider it.
In addition, the plaintiff presents argument in her objections and reply which refers to her provision of medical records in response to the defendant's requests. " [R]epresentations of the plaintiffs' counsel are not 'evidence' and certainly not 'proof.' Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985). See Travelers Property & Casualty Co. v. Christie, 99 Conn.App. 747, 761, 916 A.2d 114 (2007). " Statements or comments made by attorneys in the course of . . . argument are not facts in evidence, and may not properly be considered . . ." State v. Duntz, 223 Conn. 207, 236, 613 A.2d 224 (1992). The plaintiff failed to meet her burden as to cooperation or show that the lack of cooperation was excused or justified.
The parties also presented argument concerning the scheduling and cancellation of Dr. Bellucci's deposition. For the reasons stated above, the court has not considered these arguments.
Next, the court must determine whether the defendant was prejudiced. The defendant contends that the plaintiff's lack of cooperation has caused prejudice, since the defendant is unable to evaluate the plaintiff's suit or settle the action without the requested information to enable it to evaluate the plaintiff's current and preexisting injuries. In the complaint, paragraph 5, the plaintiff alleges that the accident aggravated pre-existing fibromyalgia and cervical and lumbar conditions.
The Appellate Court has determined that an insured's refusal to produce various records and documentation, which reasonably pertained to the insured's loss or damage, materially prejudices the insurer by hindering its " ability to determine whether the coverage applied and to prevent loss or damage . . . [and] to investigate and defend the defendant's claim . . ." Chicago Title Ins. Co. v. Bristol Heights Associates, LLC, supra, 142 Conn.App. 409-10.
Here, the defendant's requested information is necessary for the defendant to properly evaluate the plaintiff's personal injury claims. Without the requested information, the defendant cannot do so. The plaintiff has the burden to demonstrate that the insurance company has not suffered prejudice. Sec Geico General Ins. Co. v. Nazarian, Superior Court, judicial district of Stamford-Norwalk, Docket No. FST CV 09 4015635 (March 17, 2010, Brazzel-Massaro, J.) [49 Conn.L.Rptr. 502, ].
An insured's " failure to comply with the cooperation clause is presumed to have been detrimental to the [insurance company's interests] . . ." Taricani v. Nationwide Mutual Ins. Co., 77 Conn.App. 139, 151, 822 A.2d 341 (2003). Even if the court could consider the plaintiff's attorney's affidavit, like the insured party in Taricani v. Nationwide Mutual Ins. Co., supra, 77 Conn.App. 150-51, the affidavit offered in opposition to the present summary judgment motion failed to provide any explanation as to how the defendant was not prejudiced by the plaintiff's failure to submit requested medical records. See Geico General Ins. Co. v. Nazarian, supra, Superior Court, Docket No. FST CV 09 4015635, . Accordingly, the plaintiff fails to raise a genuine issue of material fact regarding prejudice suffered by the defendant as a result of her failure to cooperate. See id.
The defendant has met its burden in establishing its entitlement to summary judgment. The burden shifts to the plaintiff to show that a genuine issue of material fact exists. When a party moves for summary judgment " and there [are] no contradictory affidavits, the court properly decide[s] 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, 231 Conn. 756, 795, 653 A.2d 122 (1995). As stated above, the affidavit from the plaintiff's attorney is based on hearsay, which may not be considered.
Summary judgment is warranted because there is no genuine issue of material fact as to whether the plaintiff breached the policy's cooperation provision and the defendant was prejudiced as a result.
CONCLUSION
For the reasons stated above, the defendant has shown that it is entitled to judgment as a matter of law. Accordingly, the motion for summary judgment is granted. It is so ordered.