Austin-Casares v. Safeco Ins. Co. of Am.

Decision Date03 December 2013
Docket NumberNo. 19081.,19081.
Citation310 Conn. 640,81 A.3d 200
CourtConnecticut Supreme Court


Geoffrey K. Milne, with whom, on the brief, was Nicole L. Barber, Hartford, for the appellant (prospective intervenor BSI Financial Services, Inc.).

Philip T. Newbury, Jr., Hartford, for the appellee (defendant).



The prospective intervenor, BSI Financial Services, Inc. (BSI), appeals from the trial court's denial of its motion to intervene in a breach of contract action brought by the plaintiff, Faith Austin–Casares, against the defendant, Safeco Insurance Company of America. In her complaint, the plaintiff alleged that the defendant improperly had denied her claim for insurance coverage after a fire damaged her home, and BSI, as the holder of the note and mortgage on the plaintiff's home, filed a motion to intervene in the underlying action. The trial court denied the motion as untimely on the ground that the homeowner's insurance policy issued to the plaintiff by the defendant required that any action against the defendant be commenced within one year of the alleged loss or damage, and BSI did not file its motion within that one year limitation period. Although BSI claimed that the motion to intervene did not constitute a new, separate action but, rather, related back to the plaintiff's original complaint, the trial court did not address that claim. On appeal, BSI contends that the trial court should have allowed it to intervene in the action as a matter of right, or in the alternative, permissively. We conclude that the trial court improperly denied the motion to intervene as untimely on the basis of the policy's one year limitation period without first determining whether the motion to intervene related back to the original complaint. We further conclude that the motion does indeed relate back to the original complaint, and, accordingly, we reverse the trial court's decision and remand the matter to that court so that it may reconsider BSI's motion to intervene in light of the relevant factors.

The record reveals the following relevant facts and procedural history. In a complaint dated October 12, 2009, the plaintiff alleged that her home in the town of Andover had been damaged by a fire that occurred on or about October 26, 2008. The home was covered for fire loss by a homeowner's insurance policy (policy) that the defendant had issued to the plaintiff. After the fire, the plaintiff submitted a claim for damages under the policy, but the defendant denied the claim despite the plaintiff's alleged compliance with all of the policy provisions and obligations. In response to the plaintiff's complaint, the defendant filed an answer and special defenses, asserting, inter alia, that the policy was void because the plaintiff had concealed or misrepresented material facts or circumstances and that there was no coverage under the policy for the claimed loss because the plaintiff never had resided at the subject property.

On March 22, 2011, BSI filed a motion to intervene as a plaintiff in the action pursuant to General Statutes §§ 52–1021 and 52–107, 2 and Practice Book §§ 9–3,39–184and 9–19.5 BSI claimed that, because it was the successor in interest to EquiFirst Corporation, which was named in the policy as the mortgagee, it was entitled to intervene as of right, or in the alternative, permissively. Specifically, BSI claimed that it had a direct and substantial interest in the litigation, its interest was not adequately represented by any other party to the litigation, its interest would be impaired by the disposition of the litigation without its involvement, and its motion to intervene was timely.

With respect to the timeliness of the motion to intervene, BSI contended that the court must consider “the totality of the circumstances....” (Internal quotation marks omitted.) BSI further argued that its intervention in the action was not barred by the [s]uit [a]gainst [u]s' provision of the policy, which provides: “No action shall be brought against [the defendant] unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage.” 6 According to BSI, this limitation period did not bar BSI's intervention in the action because the plaintiff had commenced the action in which BSI sought to intervene within one year of the loss. In support of its claim, BSI relied on Georgia Mutual Ins. Co. v. Glennville Bank & Trust Co., 229 Ga.App. 402, 494 S.E.2d 103 (1997), in which the Georgia Court of Appeals concluded that a similar policy provision was “susceptible of two meanings” because “the policy provision [did] not state that the mortgagee's claim [was] barred unless the mortgagee file[d] suit within one year of the loss. It [was] silent as to the pivotal question of whether the mortgagee [was] required to bring a separate, second action even if ‘the action’ of the insured was timely filed and is pending.” (Emphasis in original.) Id., at 404, 494 S.E.2d 103. BSI further claimed that its motion to intervene was timely because it was “akin to the ‘relation back’ of amended claims to the original complaint under [ rule 15(c) of the Federal Rules of Civil Procedure],7 and not the institution of a new, unrelated cause of action.” (Footnote added.) Moreover, BSI argued that the defendant would not be prejudiced by BSI's intervention in the underlying action because the plaintiff's timely initiation of that action put the defendant on notice of potential exposure to liability.

The defendant objected to the motion to intervene, arguing that BSI's intervention was time barred by the policy's limitation period and by a provision in the policy specifying that [p]olicy conditions relating to [a]ppraisal, [s]uit [a]gainst [u]s and [l]oss [p]ayment apply to the mortgagee.” Because BSI concededly did not file the motion to intervene until after the limitation period had expired, the defendant contended that intervention was barred by the express terms of the policy. The defendant further claimed that, because BSI sought benefits pursuant to its contractual relationship with the defendant,8 “it must comply with the applicable policy conditions,” including the limitation period. Finally, the defendant contended that, even if the court declined to enforce the limitation period, the motion to intervene was untimely because BSI, or its predecessor in interest, had been aware of the loss for more than two years before the motion to intervene was filed.

On May 6, 2011, the trial court, Robaina, J., denied the motion to intervene. Thereafter, in response to BSI's motion for articulation, the trial court noted that the policy's limitation period unambiguously applied to BSI. Because the defendant had not waived the limitation period and BSI had not filed the motion to intervene until after the expiration of the limitation period, the trial court determined that the motion to intervene was untimely. Accordingly, the trial court concluded that BSI could not intervene as of right and that there was “no basis for permissive intervention....” The trial court, Miller, J., subsequently granted BSI's motion to stay the proceedings pending BSI's appeal from the trial court's denial of its motion to intervene. On appeal, BSI claims that the trial court improperly denied its motion to intervene as of right and failed to adequately analyze BSI's alternative request for permissive intervention.9 We agree that the trial court improperly failed to address and apply the relation back doctrine to the present case, and, as a result, its analysis and conclusion with respect to the plaintiff's motion to intervene were flawed.10


It is well established that a party seeking to intervene in a matter as of right must satisfy a four part test: (1) [t]he motion to intervene must be timely”; (2) the proposed intervenor “must have a direct and substantial interest in the subject matter of the litigation”; (3) the proposed intervenor's “interest must be impaired by disposition of the litigation without the [proposed intervenor's] involvement”; and (4) the proposed intervenor's “interest must not be represented adequately by any other party to the litigation.” Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 386, 397–98, 28 A.3d 288 (2011).

“For purposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion ... to intervene and to the proposed complaint or defense in intervention, and ... we accept the allegations in those pleadings as true. The question on a [motion] to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on [a] motion to intervene, at least in the absence of sham, frivolity, and other similar objections.... Thus, neither testimony nor other evidence is required to justify intervention, and [a prospective] intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the [prospective] intervenor has a direct and immediate interest that will be affected by the judgment.” (Internal quotation marks omitted.) Id., at 398, 28 A.3d 288.

Whether a motion to intervene is timely “involves a determination of how long the intervenor was aware of an interest before he or she tried to intervene, any prejudicial effect of intervention on the existing parties, any prejudicial effect of a denial on the applicant and consideration of any unusual circumstances either for or against timeliness.... Factors to consider also include the nature of the interest and...

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