Hebert v. Jarvis & Rice & White Ins., Inc., 177-75

• Decision Date: 05 October 1976
• Docket Number: No. 177-75,177-75
• Citation: 365 A.2d 271,134 Vt. 472
• Court: Vermont Supreme Court
• Parties: Richard E. HEBERT v. JARVIS & RICE AND WHITE INSURANCE, INC. d/b/a Connecticut Valley Insurance Associates, et al.

Page 271

365 A.2d 271

134 Vt. 472

Richard E. HEBERT v. JARVIS & RICE AND WHITE INSURANCE, INC. d/b/a Connecticut Valley Insurance Associates, et al.

No. 177-75.

Supreme Court of Vermont.

Oct. 5, 1976.

David D. Robinson, of Abatiell & Abatiell, Rutland, for plaintiff.

Frank H. Zetelski, of Dick, Hackel & Hull, Rutland, for Jarvis & Rice and White.

Thomas F. Heilmann, of Richard E. Davis Associates, Inc., Barre, for Granite Mutual Ins. Co.

Webber & Costello, Rutland, for Hartford Fire Ins. Co.

Garfield H. Miller, of Black & Plante, White River Junction, for Vermont Mutual Ins. Co. and Northern Security Ins. Co.

Before BARNEY, C. J., SMITH, DALEY and LARROW, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

DALEY, Justice.

This appeal arises from a grant of summary judgment in favor of defendants. The plaintiff brought a civil action in Windsor Superior Court against Jarvis & Rice and White Insurance, Inc. d/b/a Connecticut Valley Insurance Associates; Union Mutual Fire Insurance Company; Vermont Mutual Insurance Company; New England Guaranty Insurance Company; Hartford Fire Insurance Company; Northern Security Insurance Company; Granite Mutual Insurance Company; and Green Mountain Insurance Company. The complaint, dated November 20, 1974, stated that all defendants had issued insurance policies covering fire and related damage to certain commercial property originally owned by Gibson Motors, Inc., a Vermont corporation adjudged a bankrupt as of September 11, 1970. Plaintiff acquired this same property by a trustee's deed granted him on December 23, 1970. The complaint further alleged that all rights in the policies had been assigned to the plaintiff from the trustee by order of the bankruptcy court issued December 7, 1971. The order expressly authorized the trustee to assign 'whatever interest' he had in the policies to plaintiff.

Sometime subsequent to the conveyance, it was discovered that on or before the date of sale, the property in question had suffered substantial smoke damage. In his complaint plaintiff claims that defendants, upon his demand, refused to honor their contractual duty to recompense his loss, and were therefore in breach of contract with him as assignee and third party beneficiary under the policies. For these reasons plaintiff sought to recover damages.

By answer or amended answer each defendant raised as a defense that its policy provided that any action thereon must be brought within a stated time after inception of the loss. In each instance the asserted period had transpired prior to plaintiff's suit.

Each defendant also moved for summary judgment on the ground that the action was barred by the aforementioned contractual provision. The trial court granted these motions on that ground and as to some of defendants on the further ground that proof of loss had not been timely filed. Plaintiff then moved for a new summary hearing contending that defendants, through their agent Connecticut Valley, had waived any contractual defenses by denying liability, and were extopped from asserting these defenses due to their alleged failure to supply either plaintiff or the trustee with copies of the policies. This motion was denied, and the plaintiff appeals to this Court.

The sole question posed by this appeal is whether summary judgment should have been granted defendants pursuant to V.R.C.P. 56.

The standard to be followed in deciding this point is set out in Rule 56(e), which states in part:

When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Should the adverse party fail to comply with V.R.C.P. 56(e), the disposition of the matter is governed by V.R.C.P. 56(c):

Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

The record here reveals that the motions filed by defendants were supported by affidavits and copies of the policies demonstrating plaintiff's non-compliance with the contractual provisions limiting the time in which suit could be brought on the policies.

It is well established that a condition in an insurance policy providing that no recovery may be had thereon unless suit is initiated in a given time is valid unless the time can be said to be unreasonable. Springfield Cooperative Freeze Locker Plant, Inc. v. E. R. Wiggins, 115 Vt. 445, 447, 63 A.2d 182 (1949); 8 V.S.A. § 3663. Moreover, it is clear that summary judgment may be granted a moving party where the opponent asserts a claim barred by the statute of limitations. Tierney v. Tierney, 131 Vt. 48, 52, 300 A.2d 544 (1972). From the factual showing made by these affidavits and exhibits, it is obvious that the contractual limit on filing suit was well pleaded and supported by defendants' affidavits.

As provided by V.R.C.P. 56(e), it then became incumbent upon the plaintiff, by affidavit or as otherwise provided in the rule, to set forth specific facts showing that there was a genuine triable issue upon the defense posed by defendants if he were to avoid summary judgment being rendered against him. Tierney v. Tierney, supra; see also Reporter's Notes to V.R.C.P. 56.

Clearly there is no dispute raised as to the date of the claimed loss and the date of the suit brought nearly four years thereafter, nor does the plaintiff contest that the various policies contained the limitation provisions as asserted by the defendants. Plaintiff's response consisted of his personal affidavit and the affidavit of the trustee in bankruptcy together with certain exhibits referred to in the affidavits. These affidavits...