Bocchino v. Nationwide Mut. Fire Ins. Co.

Citation716 A.2d 883,246 Conn. 378
Decision Date18 August 1998
Docket NumberNo. 15660,15660
CourtSupreme Court of Connecticut
PartiesJoseph BOCCHINO, Jr. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.

Matthew J. Broder, Hamden, for appellant (plaintiff).

Gordon R. Raynor, Trumbull, for appellee (defendant).

Before BORDEN, BERDON, NORCOTT, KATZ and McDONALD, JJ.

BORDEN, Associate Justice.

In this action to recover proceeds pursuant to a homeowner's insurance policy, the plaintiff appeals 1 from the judgment of the trial court in favor of the defendant. The trial court determined that the action had not been brought within one year of the date of the loss, as required by the policy, and that the accidental failure of suit statute, General Statutes § 52-592, 2 did not operate to save the plaintiff's action. The plaintiff claims that the trial court improperly concluded that § 52-592(a) did not save the action. We affirm the judgment of the trial court.

The facts and procedural history are undisputed. The plaintiff, Joseph Bocchino, Jr., owned a dwelling and detached garage in Bridgeport. Through a homeowner's insurance policy purchased from the defendant, Nationwide Mutual Fire Insurance Company, the plaintiff insured the property against fire and various other types of loss. One of the provisions of the insurance policy provided that "[n]o action can be brought unless ... the action is started within one year after the date of loss or damage." This provision of the policy is mandated by General Statutes §§ 38a-308 (a) and 38a-307. 3

On November 16, 1991, the garage was damaged by fire, and the defendant paid the plaintiff for personal property loss but denied his proof of loss for the structure on the ground that it was "used in part or in whole for commercial business purposes" and, therefore, was not covered by the insurance policy. On November 6, 1992, within one year of the date of the loss, the plaintiff brought an action against the defendant for proceeds allegedly owed him pursuant to the policy. On June 24, 1994, however, that action was dismissed pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3, 4 for failure to prosecute with due diligence. On March 30, 1995, within one year of the date of the prior dismissal but beyond one year from the date of the fire loss, the plaintiff brought this action, the substantive claims of which are, for all material purposes, identical to those contained in the plaintiff's first complaint. The plaintiff alleged that the action was timely by virtue of the provisions of § 52-592(a).

The case was tried to an attorney trial referee, who found the facts and recommended judgment for the plaintiff. The plaintiff moved the trial court for judgment in accordance with the report, and the defendant filed certain exceptions and objections to the referee's report. The trial court found dispositive the defendant's claims that the plaintiff's action was barred by the one year limitation period under the defendant's insurance policy and that, under controlling case law, the provisions of § 52-592(a) do not operate to save the plaintiff's action. Accordingly, the trial court rendered judgment for the defendant. This appeal followed.

The plaintiff claims that the trial court improperly concluded that § 52-592(a) did not save this action, because, the plaintiff maintains, the defendant's insurance policy provision requiring that an action be brought within one year of the date of the loss was mandated by the standard fire insurance policy form delineated in §§ 38a-308 (a) and 38a-307, and was, therefore, a "time limited by law" within the meaning of the savings provision of § 52-592(a). Recognizing that prevailing case law has interpreted § 52-592(a) as not applying to such provisions, however, the plaintiff urges us to overrule that case law. We decline to do so.

This case is controlled by our prior decisions in Chichester v. New Hampshire Fire Ins. Co., 74 Conn. 510, 51 A. 545 (1902), and Vincent v. Mutual Reserve Fund Life Assn., 74 Conn. 684, 51 A. 1066 (1902). In short, Chichester and Vincent held that the accidental failure of suit statute applies only to actions barred by an otherwise applicable statute of limitations, and not to an applicable contractual limitation period, irrespective of whether that period was required by a statutory form for an insurance policy. Chichester v. New Hampshire Fire Ins. Co., supra, at 513-14, 51 A. 545; Vincent v. Mutual Reserve Fund Life Assn., at 688, 51 A. 1066. Moreover, Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979), reaffirmed that holding, and, on several occasions since that decision, this court and the Appellate Court have further reaffirmed the limited application of the statute. See, e.g., Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990); Skibeck v. Avon, 24 Conn.App. 239, 243, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991); Marangio v. Shop Rite Supermarkets, Inc., 11 Conn.App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987).

In Chichester, the plaintiff previously had brought an action on a fire insurance policy within the one year provision of the policy, but that action was nonsuited after the plaintiff had introduced all of his evidence, and his appeal was dismissed. Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. at 511, 51 A. 545. The plaintiff immediately--well within the one year provision of what is now § 52-592(a)--commenced another action, and was met with the defense of the one year provision of the policy. Id. The plaintiff replied by relying on the accidental failure of suit statute. Id., at 511-12, 51 A. 545. The trial court sustained the defendant's demurrer to the plaintiff's reply, thus, in effect, validating the defense of the one year policy provision and rejecting the reliance on the accidental failure of suit statute. Id., at 512, 51 A. 545.

This court affirmed the judgment of the trial court, holding that "[t]he provision in the policy sued upon requiring an action to be brought 'within twelve months next after the fire' does not operate as a statute of limitations; it is a part of the contract; the rights of the parties flow from the contract, and must be governed by the rules of law applicable to contracts. Such a provision in a contract of insurance is valid and binding upon the parties." (Emphasis added.) Id., at 512-13, 51 A. 545.

This court then specifically addressed, and specifically rejected, the claimed applicability of the accidental failure of suit statute, and the argument that it applied because the fire insurance policy, which contained the one year suit provision, was a standard policy mandated by our then insurance statutes. "The plaintiff's claim that [the accidental failure of suit statute] authorizes the bringing of this suit within one year after his nonsuit in the former action, is without foundation. That [statute] is an amendment to the statute of limitations and does not affect this contract. " (Emphasis added.) Id., at 514, 51 A. 545. "The plaintiff also insists that Chap. 226 of the Public Acts of 1893, establishing a standard policy of insurance, in some way changes the agreement of the parties to such a policy into a statute of limitations. The Act clearly has no effect upon the contracts made in accordance with the form therein provided." (Emphasis added.) Id. Subsequently, this court followed the rule of Chichester in Vincent v. Mutual Reserve Fund Life Assn., supra, 74 Conn. at 686, 51 A. 1066 (allegations that prior dismissed action on life insurance policy had been brought within one year policy provision "are immaterial").

Our decisions in Chichester and Vincent cannot plausibly be read any way other than as holding that § 52-592(a) does not apply to save a second action on an insurance policy brought beyond the applicable contractual limitation period but within one year of a timely, but unsuccessful, prior action on the same loss. Moreover, the decision in Chichester unequivocally concludes that the fact that the policy's limitation period was mandated by a statutory standard fire insurance form is irrelevant. These precedents dictate the conclusion that the accidental failure of suit statute simply does not apply to the plaintiff's action in the present case. That statute applies to actions that would be time barred by an otherwise applicable statute of limitations, not to actions that are time barred by a contractual policy provision, irrespective of the fact that the policy provision was required by a statutory policy form. 5

Furthermore, this reading of Chichester was reaffirmed in 1979 when this court decided Monteiro v. American Home Assurance Co., supra, 177 Conn. 281, 416 A.2d 1189. Although the accidental failure of suit statute was not involved in that case, this court cited Chichester for the following propositions: (1) "Since a provision in a fire insurance policy requiring suit to be brought within one year of the loss is a valid contractual obligation, a failure to comply therewith is a defense to an action on the policy unless the provision has been waived or unless there is a valid excuse for nonperformance; and such a condition requiring suit to be brought within one year does not operate as a statute of limitations "; (emphasis added) id., at 283, 416 A.2d 1189; and (2) "This condition is a part of the contract so that it controls the rights of the parties under the contract and, hence, such rights must be governed by the rules of law applicable to contracts." Id. This court then went on to reject the plaintiff's claim, under contract law, that he was excused from compliance with the one year suit provision by his attorney's disability. Id., at 285-87, 416 A.2d 1189.

Indeed, since Monteiro, both this court and the Appellate Court have reaffirmed our understanding that § 52-592(a) operates to save actions that would be...

To continue reading

Request your trial
26 cases
  • Commission on Human Rights & Opportunities v. Sullivan Associates
    • United States
    • Supreme Court of Connecticut
    • October 12, 1999
    ...a number of times since Conway. See Prato v. New Haven, 246 Conn. 638, 647, 717 A.2d 1216 (1998); Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 386, 716 A.2d 883 (1998); Hanson v. Transportation General, Inc., 245 Conn. 613, 618-19, 716 A.2d 857 (1998); Hall v. Gilbert & Benne......
  • State v. Lombardo Bros. Mason Contractors, X01-UWY-CV-08-501068S.
    • United States
    • Superior Court of Connecticut
    • February 23, 2009
    ...R. Newman & J. Wildstein, Tort Remedies in Connecticut (Cum. Sup. 2008) § 24-3, p. 186, citing Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 386, 716 A.2d 883 (1998). "[S]uch a condition requiring suit to be brought within one year does not operate as a statute of limitations.......
  • Rivera v. Commissioner of Correction
    • United States
    • Supreme Court of Connecticut
    • August 15, 2000
    ...... Gilbert & Bennett Mfg. Co., 241 Conn. 282, 297, 695 A.2d 1051 (1997). ...See, e.g., Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. ......
  • Craig v. Colonial Penn Ins. Co., 3:02CV1630JBA.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 15, 2004
    ...facts sufficient in law to excuse his nonperformance of the condition." See id. at 546; see also Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 383-84, 716 A.2d 883 (1998); Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979) (reaffirming Plaintiffs......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT