Maher v. Connecticut Ins. Placement Facility

• Decision Date: 20 March 1985
• Docket Number: No. 277068,277068
• Citation: 494 A.2d 631,40 Conn.Supp. 299
• Court: Connecticut Superior Court
• Parties: Joseph D. MAHER v. CONNECTICUT INSURANCE PLACEMENT FACILITY. -New Britain, at Hartford

Page 631

494 A.2d 631

40 Conn.Supp. 299

Joseph D. MAHER v. CONNECTICUT INSURANCE PLACEMENT FACILITY.

No. 277068.

Superior Court of Connecticut,

Judicial District of

Hartford-New Britain, at Hartford.

March 20, 1985.

Donald Weisman, for plaintiff.

Skelley, Clifford, Vinkels, Williams & Rottner, Hartford, for defendant.

BIELUCH, Judge.

On October 14, 1981, the plaintiff's house was damaged by fire. On that day, the plaintiff filed a claim for insurance proceeds pursuant to a fire insurance policy issued by the defendant covering the plaintiff's dwelling. The policy contained the following provision: "SUIT AGAINST US. No action shall be brought unless there has been compliance with the policy provisions and the action has been started within one year after loss."

Pursuant to the terms of the policy, the plaintiff submitted to an examination under oath on March 8, 1982, and filed a sworn statement in proof of loss on March 22, 1982. The plaintiff having received no notification from the defendant regarding the claim, the plaintiff's attorney contacted the defendant's attorney on October 14, 1982, and "was told that no voluntary payment would be made and that he should commence on that day any legal action he intended to bring, or his claim would be barred by the contractual limitation provision of the policy." As a result, the plaintiff commenced to bring suit immediately but did not serve the defendant until October 15, 1982.

The defendant has moved for summary judgment based on the plaintiff's failure to bring suit within the one year limitation period specified in the policy.

Summary judgment will be granted if the 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. Practice Book § 384; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984). The party seeking summary judgment has the burden of showing the nonexistence of any material fact and the trial court must view the evidence in the light most favorable to the nonmoving party. Id., 317; Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). Once the moving party has submitted evidence in support of the motion, however, the opposing party must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Strada v. Connecticut Newspapers, Inc., supra; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).

The facts disclosed indicate that the plaintiff failed to comply with the contractual time limitation for bringing suit against the defendant. Although neither party has submitted evidence to prove the exact time the fire was extinguished, the court may reasonably conclude that the entire loss occurred on October 14, 1981.

Contractual limitations such as that provided in this case have been sanctioned by the Connecticut Supreme Court. "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...." Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979); see also Chichester v. New Hampshire Fire Ins. Co., 74 Conn. 510, 513, 51 A. 545 (1902). While the plaintiff contends that his neglect is excused by virtue of the extension period permitted by General Statutes § 52-593a, it is clear that this provision is only applicable to limitations provided by law. Sacks Realty Co. v. Newark Ins. Co., 34 Conn.Sup. 564, 566, 377 A.2d 858 (1976).

The plaintiff next contends that the one year limitation period should have been tolled once the claim was presented until the defendant notified the plaintiff of its decision. The plaintiff relies on a series of recent out-of-state decisions which have recognized this approach in construing similar contractual limitations. No reported Connecticut cases have been found which have dealt with this issue.

In Peloso v. Hartford Fire Ins. Co., 56 N.J. 514, 267 A.2d 498 (1970), the court adopted this approach and permitted suit to be brought on a fire insurance policy more than one year after the loss occurred. The court cited various New Jersey statutes which required the insured to provide proof of loss and gave the insurer sixty days after it was filed to make payment on the claim. "The fair resolution of the statutory incongruity is to allow the period of limitation to run from the date of the casualty but to toll it from the time an insured gives notice until liability is formally declined. In this manner, the literal language of the limitation provision is given effect; the insured is not penalized for the time consumed by the company while it pursues its contractual and statutory rights to have a proof of loss, call the insured in for examination, and consider what amount to pay; and the central idea of the limitation provision is preserved since an insured will have only 12 months to institute suit." Id., 521, 267 A.2d 498.

Similarly, Connecticut law requires a claimant to provide proof of loss to the insurer within sixty days after the loss occurs and gives the insurer an additional sixty days within which to make payment. General Statutes § 38-98. These time limitations fixed by law are included within the policy upon which this suit is brought. See State v. Biller, 190 Conn. 594, 610-13, 462 A.2d 987 (1983) (provisions of § 38-98 required by law). As a result, the limitation on suit contained in the policy runs during this statutory period. In the meantime, the insured may hesitate to bring suit prematurely or unnecessarily in reliance on the reasonable expectation that his claim will in good faith be paid unless he receives notice to the contrary. In the case here it was only upon his attorney's oral inquiry of the defendant's counsel on the date of expiration of the limitation for suit that he was made aware unofficially that court action was necessary. The insured had the contractual and statutory right under § 38-98 to receive official notice of the insurer's action on this claim. Such required notice the plaintiff never received from the defendant insurance carrier, which may be evidence of lack of good faith in processing the plaintiff's claim, a standard to which insurance companies are held. This is the incongruous and inequitable result that the Peloso court sought to avoid.

While Connecticut has not yet adopted the Peloso construction of this contractual time limitation, other states have recently done so. See, e.g., Fireman's Fund Ins. Co. v. Sand Lake Lounge, Inc., 514 P.2d 223, 227 (Ala.1973); Ford Motor Co. v. Lumbermens Mutual Casualty Co., 413 Mich. 22, 31, 319 N.W.2d 320 (1982); Clark v. Truck Ins. Exchange, 95 Nev. 544, 545, 598 P.2d 628 (1979); Carter v. Georgia Life & Health Ins. Co., 32 N.C.App. 580, 582-83, ...