Kolibczynski v. Aetna Life and Cas. Co.

• Decision Date: 27 February 1979
• Citation: 410 A.2d 485,176 Conn. 676
• Court: Connecticut Supreme Court
• Parties: Henry KOLIBCZYNSKI v. AETNA LIFE AND CASUALTY COMPANY.

Page 485

410 A.2d 485

176 Conn. 676

Henry KOLIBCZYNSKI v. AETNA LIFE AND CASUALTY COMPANY.

Supreme Court of Connecticut.

Argued Jan. 10, 1979.

Decided Feb. 27, 1979.

Herbert Watstein, Bristol, for appellant (plaintiff).

Dean M. Cordiano, Hartford, with whom, on the brief, were Bradley B. Bates and Timothy J. Curry, Hartford, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and SPONZO, JJ.

PER CURIAM.

This action to recover an unsatisfied final judgment was commenced under General Statutes § 38-175 ¹ on March 26, 1976, against the defendant insurer, Aetna Life and Casualty Company, hereinafter designated as Aetna, by the plaintiff, a judgment subrogee of Peter F. Temelini. In its answer, Aetna, in effect, denied its liability. It subsequently filed a disclosure of defense claiming that the insured, Temelini, had failed to perform all the conditions and obligations under the terms of the policy involved. On September 16, 1977, Aetna filed a motion for summary judgment accompanied by an affidavit and other documentary evidence. At no time did the plaintiff file a counteraffidavit or other proof in opposition to this motion, nor did he move for a continuance. A summary judgment was granted and the plaintiff has appealed.

In his appeal the plaintiff attacks the findings of the trial court as not supported by the evidence, as well as the court's conclusions drawn from said findings. It is well settled that the "validity of such a claim is tested by the evidence printed in the appendices to the briefs. Practice Book § 718; State v. Vars, 154 Conn. 255, 258, 224 A.2d 744." Klein v. Chatfield, 166 Conn. 76, 78-79, 347 A.2d 58 (1974). On examination we find that the evidence set forth in the defendant's appendix, in its brief and in the record fully supports the challenged findings.

When the plaintiff was injured at Temelini's restaurant on July 31, 1969, Temelini was insured by the defendant. On September 26, 1969, the plaintiff's counsel sent a letter to Temelini informing him that the plaintiff intended to assert a claim for personal injuries incurred at the restaurant. The letter stated that the suit was being brought under General Statutes § 30-102, the dram shop act. Temelini forwarded this letter to Aetna which advised him that it would not defend the action because his insurance policy had an exclusion for dram shop act actions.

On July 23, 1970, the plaintiff instituted an action for personal injuries in two counts, one of which was in common law negligence. Aetna did not receive notice of the pendency of that action until October 20, 1972. Judgment was rendered in that action on November 4, 1975, for $14,415.55. That judgment has not been paid.

The insurance policy under which Temelini was insured by the Aetna provided that "if claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative."

Aetna filed its motion for summary judgment on September 16, 1977. It included an affidavit that it had not received notice of the action of Kolibczynski v. Temelini, No. 166922, Superior Court, Hartford County, brought July 23, 1970, until October 20, 1972. Attached to the motion was the insurance policy which included the above quoted provision.

"To oppose the motion for summary judgment successfully, the defendants had to recite facts in accordance with Practice Book § 300 which contradicted those stated in the plaintiff's affidavit. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382; Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 229, 253 A.2d 22." Rusco Industries,...