Edwards v. Markel Corp.

• Decision Date: 05 January 2018
• Docket Number: FBTCV156054106
• Court: Superior Court of Connecticut
• Parties: Jennifer EDWARDS v. MARKEL CORPORATION et al.

Jennifer EDWARDS v. MARKEL CORPORATION et al.

No. FBTCV156054106

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

January 5, 2018

UNPUBLISHED OPINION

OPINION

KAMP J.

The defendants separately filed motions for summary judgment which are now before the court. For the reasons cited herein these motions are granted.

FACTS

The plaintiff, Jennifer Edwards, filed the second amended complaint (# 139) in the present case on March 2, 2017, in which she alleges the following facts. By way of background the plaintiff obtained a stipulated judgment against Dr. Joel W. Allen (Dr. Allen) on or about March 5, 2014, after the plaintiff filed suit seeking damages for complications arising from a surgery performed by Dr. Allen. Pursuant to the stipulated judgment, Dr. Allen assigned to the plaintiff all of his rights and interests against his insurers including defendants Evanston Insurance Company (Evanston); Healthcare Provider Insurance Services, LLC (Provider); and Provider’s employee, Robert Price (Price). Generally, in the present case, the defendants failed to indemnify Dr. Allen pursuant to the terms of the applicable professional liability policy and also knowingly issued and induced Dr. Allen to take out an illegal, defense cost only policy of insurance, which failed to comply with General Statutes § 20-11b.^[1]

Count one of the second amended complaint states a claim for breach of contract against Evanston. Count two alleges a breach of the implied covenant of good faith and fair dealing, also against Evanston. Counts three, four, and five state claims for professional negligence, fraud or intentional misrepresentation, and breach of fiduciary duty, respectively, against both Provider and Price.

On April 17, 2017, Provider and Price filed a motion for summary judgment (# 150), which was accompanied by a memorandum of law (# 151). Evanston filed a motion for summary judgment (# 158) with an accompanying memorandum of law (# 159) and exhibits (# 160) on July 17, 2017. The plaintiff filed a memorandum of law in opposition to the defendants’ motions (# 161) on September 5, 2017. Evanston responded to the plaintiff with another memorandum on September 7, 2017 (# 162); the response from Provider and Price was filed on September 8, 2017 (# 163). The parties were heard on September 8, 2017.

DISCUSSION

" Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation 306 Conn. 523, 534-35, 51 A.3d 367 (2012).

" Summary judgment may be granted where the claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).

Both the defendants argue that the plaintiff’s claims are barred by the applicable statutes of limitations. Specifically, Evanston argues that the plaintiff stepped into Dr. Allen’s shoes pursuant to the stipulated judgment’s assignment, and because Dr. Allen was to bring a breach of contract claim no later than May 30, 2014, the present case- which commenced in December of 2015- is untimely under General Statutes 52-576.^[2] Provider and Price similarly contend that because all of the alleged acts and omissions occurred in 2008, the present case is untimely pursuant to General Statutes 52-577.^[3]

In addition to their arguments concerning timeliness, the defendants assert that they are entitled to summary judgment on other grounds as well. With regard to count one, Evanston challenges the plaintiff’s ability to recover under the terms of Dr. Allen’s defense only policy; for count two, Evanston contends that the plaintiff’s claim must fail due to her inability to demonstrate bad faith, as Evanston has not been shown to have breached any term of the contract or taken any discretionary steps in determining coverage. Provider and Price also contend that summary judgment is warranted as the plaintiff has failed to provide adequate proof to support her allegations, noting in particular that the plaintiff has not disclosed an expert witness and has not responded to written discovery requests.

The plaintiff argues that the defendants are not entitled to judgment as a matter of law. First, the plaintiff contends that because her claims arise under General Statutes § 38a-312, the action is therefore not time-barred. The plaintiff argues that pursuant to § 38a-312, she was unable to bring the present case until thirty days after the date the final judgment- the stipulated judgment reached between the plaintiff and Dr. Allen- was rendered in the underlying case, and therefore time began to run on April 4, 2014. Accordingly, the plaintiff maintains that because she brought this action in December of 2015, it is timely under all applicable statutes of limitations.^[4] The plaintiff also argues, with regard to the argument concerning the lack of expert testimony from Provider and Price, that such evidence is not necessary because Price’s violation of the standard of care is so clear cut in the present case.

In response, the defendants contend, inter alia, that the present case does not arise under § 38a-312. The defendants argue that although Dr. Allen was insured against the judgment obtained by the plaintiff, Dr. Allen’s insurance was for defense costs only, not indemnity. Accordingly, the defendants assert that the plaintiff is unable to meet one of the requirements set out in § 38a-321.

As the plaintiff does not appear to dispute that, as measured from the time of her injury, her claims are untimely, the timeliness of the present case turns upon whether the present case arises under § 38a-321. General Statutes § 38a-321 provides in relevant part: " Upon the recovery of a final judgment against any person ... for loss or damage on account of bodily injury, ... if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment." (Emphasis added.)

In an action brought pursuant to § 38a-321, " [l]iability cannot be imposed upon the defendant insurance carrier simply because ... the policyholder is legally liable to answer in damages to the [plaintiff]. The insurance carrier’s liability can arise only because of and under the terms of the insurance contract." (Internal quotation marks omitted.) Team Rental Group, Inc. v. ITT Hartford Group, Inc., 46 Conn.Supp. 480, 484, 755 A.2d 382 (1998), aff’d, 59 Conn.App. 110, 755 A.2d 971 (2000). In Team Rental Group, the court determined that the insurance policy at issue excluded coverage for damage of the sort claimed by the plaintiff. Id. " Since the exclusion clearly applies and [the insured party] may not recover for the damage ... the plaintiff also cannot recover from the defendants [insurers] in the present action since the plaintiff simply stands in the shoes of [the insured party] when making a claim under § 38a-321." Id., 485-86.

Jack A. Halprin, Inc. v. Hermitage Ins. Co., 58 Conn.App. 598, 753 A.2d 954 (2000), echoes this reasoning. In Jack A. Halprin, the Appellate Court determined that although the plaintiff had obtained a judgment for property damage against the insured, because property damage was not covered by the insurance policy, the insurers were not liable to the plaintiff in an action brought pursuant to § 38a-321. Id., 601-02. Essentially, because the insurance policy did not cover the damages claimed in the action brought against the insured party, the plaintiff could not recover directly from the insurer-defendant. Id.; see also Clinch v. Generali -U.S. Branch, 110 Conn.App. 29, 40, 954 A.2d 223 (2008) (in action brought pursuant to § 38a-321, plaintiff unable to recover defense costs from insurer where " it was the intent of the parties, the defendant [insurer] and the insured, to exclude [the kind of claim advanced by the plaintiff] from coverage"), aff’d, 293 Conn. 774, 980 A.2d 313 (2009).

In the present case, although the plaintiff does bring a direct action against Dr. Allen’s insurers following an unsatisfied judgment against Dr. Allen, the plaintiff’s claims do not arise under § 38a-321. The terms of Dr. Allen’s insurance policy are for defense costs only rather than indemnification. Just as Dr. Allen would be unable to recover the damages sought by the plaintiff, the...