Alvarez v. Safeco Insurance Company of Illinois

• Decision Date: 02 October 2019
• Docket Number: FBTCV196085068S
• Court: Connecticut Superior Court
• Parties: Israel ALVAREZ, II et al. v. SAFECO INSURANCE COMPANY OF ILLINOIS

Israel ALVAREZ, II et al. v. SAFECO INSURANCE COMPANY OF ILLINOIS

No. FBTCV196085068S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

October 2, 2019

UNPUBLISHED OPINION

OPINION

STEWART, J.

The defendant, Safeco Insurance Company of Illinois, moves for summary judgment on the grounds that the plaintiffs, Israel Alvarez, II and Leslie Ramos, did not sue for underinsured motorist benefits within the time periods of the policy’s limitation of actions clause or its tolling period.The plaintiffs oppose the motion, arguing that there is a disputed issue of material fact as to whether they satisfied the tolling provision by commencing this action within 180 days of the exhaustion of the tortfeasor’s liability policy.For the reasons that follow, the court denies the motion.

UNDISPUTED MATERIAL FACTS

The plaintiffs, along with their minor children, Israel Alvarez III, Lemany Alvarez, Antonio Alvarez and Leoni Alvarez, were in a vehicle that was struck by the tortfeasor, Nevis Grant, on February 2, 2016.The tortfeasor had a liability policy with limits of $20, 000 per person and $40, 000 per accident.The plaintiffs and their minor children brought an earlier action against the tortfeasor.On or about August 14, 2018, the plaintiffs signed releases as part of a settlement negotiation with the tortfeasor and his insurance carrier.The action against the tortfeasor was withdrawn on August 31, 2018.See Alvarez v. Grant,Superior Court, judicial district of Fairfield, Docket No. CV-18-6070600-S.

The defendant’s automobile insurance policy issued to the plaintiffs provides uninsured and underinsured motorists coverage in Part C.The policy goes on in Part F to subject any legal action brought against the defendant to certain conditions.Those include the following conditions for a legal action for underinsured motorist benefits:

All claims or suits under Part C of this policy must be brought within three years of the date of the accident.However, in the case of a claim involving an underinsured motor vehicle, the insured may toll any applicable limitation period by:

1.Notifying us prior to expiration of the three year period, in writing, of any claim the insured may have for Underinsured Motorists Coverage; and

2.Commencing suit proceedings not more than 180 days from the date of exhaustion of the limits of liability under all automobile bodily injury bonds or policies applicable at the time of the accident by settlements or final judgments after any appeals.

Exhibit B to No. 103.00.

On or about September 4, 2018, plaintiffs’ counsel notified the defendant of the settlement with the tortfeasor and indicated that the plaintiffs and their children would be claiming underinsured motorists coverage under the policy.The policy does not define "commencing suit proceedings" or "the date of exhaustion."

The complaint in this action is dated March 5, 2019, and the return of service (#100.30) indicates that the marshal made service on the insurance commissioner on behalf of the defendant on March 20, 2019.

DISPUTED MATERIAL FACTS

In addition to the undisputed material facts set forth above, the plaintiffs contend that they received settlement checks for themselves and three of their children on or about September 7, 2018, and that those checks totaled $38, 000.They attach a copy of another Omni Insurance Company check, also dated September 7, 2018, in the amount of $2, 000 and made payable to "Israel Alvarez and Leslie Ramos as Natural Parent and Guardian of Israel Alvarez and Paoletti & Gusmano."They also attach an affidavit of Christopher Paoletti, who states that, in his capacity as office manager for the plaintiff’s law firm, he received this $2, 000 check in the United States mail on October 1, 2018.He also states that he deposited that check in the law firm trust account on October 1, 2018.The copy of the check reflects that deposit date.

LEGAL ANALYSIS

I.SUMMARY JUDGMENT STANDARD

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."Practice Book§ 17-49, see alsoProvencher v. Enfield,284 Conn. 772, 790-91, 936 A.2d 625(2007).A "material fact" is one that would make a difference in the outcome of the case.SeeHammer v. Lumberman’s Mutual Casualty Co.,214 Conn. 573, 578, 573 A.2d 699(1990).The burden of showing the nonexistence of any disputed issue of material fact is on the defendant, as the moving party.SeeRomprey v. Safeco Ins. Co. of America,310 Conn. 304, 319-20, 77 A.3d 726(2013).Moreover, in a case such as this, where the moving party is relying upon a limitation of actions permitted by General Statutes § 38a-336(g)(1), the moving party must establish that there is no genuine issue of material fact as to the failure to bring suit within the limitations period and the failure to meet the tolling requirements.Id., 322-23.

"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.)Id., 320.It is not enough for the opposing party merely to assert the existence of such a disputed issue.Maffucci v. Royal Park Ltd. Partnership,243 Conn. 552, 554-55, 707 A.2d 15(1998).The opposing party must demonstrate that he has sufficient counterevidence to raise a genuine issue of material fact as to each of the essential elements of his cause of action against the defendant.SeeStuart v. Freiberg,316 Conn. 809, 822-23, 116 A.3d 1195(2015).

In deciding this motion, this court must view the evidence in the light most favorable to the nonmoving party, the plaintiff.SeeRomprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320;see alsoVendrella v. Astriab Family Ltd. Partnership,311 Conn. 301, 313, 87 A.3d 546(2014)."[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ...[A] summary disposition ... should he on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ...[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."(Citations omitted; emphasis omitted; internal quotation marks omitted.)Dugan v. Mobile Medical Testing Services, Inc.,265 Conn. 791, 815, 830 A.2d 752(2003).

II.THE TOLLING REQUIREMENTS OF GENERAL STATUTES § 38a-336(g)(1)

The plaintiffs have not brought suit within three years of the accident date of February 2, 2016.They did, however, satisfy the first tolling requirement by providing notice within that three-year period when their counsel wrote to the defendant on or about September 4, 2018.The principal issue is whether the plaintiffs satisfied the second tolling requirement by "commencing suit within 180 days of the date of exhaustion of the limits of liability under all automobile bodily injury bonds or policies applicable at the time of the accident by settlements or final judgments after any appeals."^[1]

To determine whether the plaintiffs have satisfied the second tolling requirement, the court must first interpret the policy language.That language is almost identical to General Statutes § 38a-336(g)(1)(B).The entirety of subsection (g)(1) provides: "No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals."

III.THE DATE OF COMMENCEMENT OF SUIT

The first issue is the meaning of the policy language "commencing suit proceedings."The plaintiff seems to regard the date in the complaint caption, March 5, 2019, as the date this action commenced.^[2]SeePls.’ Mem. in Supp., p. 6.The policy itself is silent as to the meaning of this phrase.The language is similar to the language of § 38a-336(g)(1) that provides: "by commencing suit or demanding arbitration ..."The court interprets this language as having the same meaning as that used in Connecticut common law- an action is commenced on the date of service of process on the defendant.See, e.g., McGaffin v. Roberts,193 Conn. 393, 401 n.9, 479 A.2d 176(1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 813(1985);Broderick v. Jackman,167 Conn. 96, 99, 355 A.2d 234(1974).That date of service was March 20, 2019.

IV.THE DATE OF EXHAUSTION

The second issue is the meaning of "the date of exhaustion of the limits of liability under all automobile bodily injury bonds or policies applicable at the time of the accident by settlements or final judgments after any appeals."The defendant argues that the date of exhaustion was when the plaintiffs signed releases in favor of the...