Kinity v. US Bancorp
| Decision Date | 07 June 2022 |
| Docket Number | AC 44106 |
| Citation | 212 Conn.App. 791,277 A.3d 200 |
| Parties | Isaac KINITY v. US BANCORP et al. |
| Court | Connecticut Court of Appeals |
Elio Morgan, for the appellant (plaintiff).
Pierre-Yves Kolakowski, Greenwich, for the appellees (named defendant et al.).
Deborah Etlinger, Hartford, with whom, on the brief, was Erin Canalia, for the appellees (defendant State Automobile Mutual Insurance Company et al.).
Elgo, Clark and Sheldon, Js.
This case arises from actions taken by the defendants, US Bank NA and US Bancorp, 1 as servicer of a residential loan from People's Bank (lender) to the plaintiff, Isaac Kinity, and his wife, Jane Kinity2 (borrowers), under a note secured by a mortgage on the borrowers’ residential property, and by the defendants, Patrons Mutual Insurance Company of Connecticut and State Automobile Mutual Insurance Company,3 the insurance company that issued an insurance policy (original policy) to the plaintiff covering the mortgaged property against loss, as required by the mortgage, upon being informed that the property might be vacant. Concerned that the lender's financial interest in maintaining the condition and value of the property might be compromised if the property were vacant, because in that event the plaintiff's original policy might not cover the risk, the bank advised the insurance company of the possible vacancy and sought assurances from the borrowers, either that they still occupied the property or that they had procured sufficient insurance to cover it against loss. Ultimately, although the borrowers still occupied the property, the bank's receipt of information to the contrary led to the cancellation of the original policy, the later reinstatement of the policy, the eventual cancellation of the reinstated policy due to nonpayment of the premium, and the bank's procurement of a more costly lender placed insurance policy (LPI policy) at the plaintiff's expense.
After initially filing an action against a trade name of the bank (original action), which was dismissed for lack of subject matter jurisdiction because a trade name cannot lawfully be sued, and for lack of personal jurisdiction due to insufficient service of process, the plaintiff commenced the present action against the bank under the putative authority of the accidental failure of suit statute, General Statutes § 52-592, and the continuing course of conduct doctrine, to recover damages on several theories of liability for injuries and losses he allegedly sustained as a result of the bank's actions. The plaintiff later moved successfully to cite in the insurance company defendants, and filed a series of amended complaints against both the insurance company defendants and the bank defendants, seeking similar relief against both, on similar theories of liability.4 The defendants answered the plaintiff's complaint by denying all claims of liability and damages against them and asserting as special defenses that all but one of the plaintiff's claims were barred by the applicable statutes of limitations. In anticipation of the latter special defense, the plaintiff pleaded in his operative complaint that all of his otherwise untimely claims were saved by the accidental failure of suit statute and/or by the continuing course of conduct doctrine.
After the trial court granted the defendants’ separate motions for summary judgment on the grounds that none of the plaintiff's untimely claims was saved by the accidental failure of suit statute or the continuing course of conduct doctrine, and thus that all of them were barred by applicable statutes of limitations, and that his remaining claims failed as a matter of law, the plaintiff appealed to this court. On appeal, the plaintiff claims, inter alia, that the trial court erred in ruling that (1) the accidental failure of suit statute did not save any of his untimely claims because his original action was never "commenced," and thus could not be saved under the authority of that statute, (2) the continuing course of conduct doctrine did not apply to any of his untimely claims because there was no special relationship between himself and any defendant that would impose a continuing duty to him on any defendant, (3) the bank defendants and the insurance company defendants were entitled to judgment as a matter of law on the plaintiff's claims of breach of the covenant of good faith and fair dealing against them, and (4) the insurance company defendants were entitled to judgment as a matter of law on the plaintiff's claim of negligent misrepresentation against them.5
Thereafter, while this appeal was pending, the plaintiff filed an amended appeal from a postjudgment order of the trial court granting the insurance company defendants’ motion to enforce settlement agreement, claiming that (1) the court had no authority to summarily enforce such an agreement after the case it purported to settle had gone to judgment, and (2) even if it had such authority, it could not exercise that authority in this case because the parties had not entered into a clear, unambiguous, and enforceable settlement agreement. We affirm the judgment of the trial court and its postjudgment order enforcing the settlement agreement.
The following facts and procedural history are relevant to our resolution of this appeal. In October, 2003, the borrowers took out a loan with the lender in the amount of $111,500 to purchase a parcel of real property located at 473-475 Elm Street in New Haven (property).6 The loan was secured by a mortgage on the property given by the borrowers to the lender. The mortgage note was subsequently endorsed to the Connecticut Housing Finance Authority (CHFA). The bank continued thereafter to service the loan on behalf of CHFA. The mortgage required the borrowers to insure the property against loss and provided that if the borrowers failed to maintain the required coverage, the lender was authorized to obtain insurance coverage at its option and at the borrowers’ expense. The mortgage also provided that the borrowers were required to make periodic payments to the lender. These payments included funds to be held in escrow by the bank for payment of the insurance policy premium. In accordance with these requirements, the plaintiff purchased a hazard insurance policy for the property from Norcom Insurance, an agent of the insurance company.7
In 2013, the borrowers became delinquent on their mortgage payments. As a result, the borrowers were mailed a letter, dated August 2, 2013, notifying them of the delinquency.8 The letter also advised the borrowers that property inspections would be completed on all delinquent loans. On October 28, 2013, such a property inspection was completed on the borrowers’ mortgaged property. The resulting inspection report noted that the property appeared to be vacant. The following day, on October 29, 2013, the bank mailed the borrowers a letter, notifying them of the inspection report and its consequences as follows:
Thereafter, on October 30, 2013, the bank mailed a letter to the insurance company, advising it that the property might be vacant and, therefore, that there might be a change of risk. The bank also mailed a letter to the borrowers, advising them that it had contacted the insurance company and that the current insurance policy did not provide coverage if the property was vacant. The letter stated:
On the basis of the letter it received from the bank, the insurance company issued a notice of cancellation, dated November 6, 2013, in which it informed the plaintiff that the policy would be cancelled, effective December 14, 2013, due to the change in the condition of the risk. On September 18, 2013, the bank disbursed funds to the insurance company in the amount of $1547 for the annual premium on the insurance policy. Because the premium had already been paid, however, the insurance company informed the plaintiff, in the notice of cancellation, that a refund in the amount of $1243 would be issued to him for a portion of the unearned premium. The insurance company issued a check, dated November 12, 2013, for $1243 and mailed it to the plaintiff. The plaintiff asserts that he never received the refund check from the insurance company. The insurance company's records indicate that the check was never cashed.
On November 11, 2013, the insurance company learned that the property was not in fact vacant when the plaintiff spoke with an agent of the insurance company on the phone and stated that he was still residing at the property. As a result, the insurance company immediately reinstated the insurance policy, and mailed a letter to the plaintiff, notifying him of the reinstatement. No lapse in coverage had occurred between the issuance of the notice of cancellation and the date of reinstatement of the policy, because the cancellation was not to have become effective until December 14, 2013. Because the insurance company had issued a refund to the plaintiff in the amount of $1243, the notice of reinstatement included an invoice for that refunded portion of the premium. The premium for the reinstated policy was never paid. Consequently, on December 19, 2013, the insurance company sent a notice to the plaintiff...
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