Monteiro v. American Home Assur. Co.

• Decision Date: 10 April 1979
• Citation: 416 A.2d 1189,177 Conn. 281
• Court: Connecticut Supreme Court
• Parties: Harry MONTEIRO v. AMERICAN HOME ASSURANCE COMPANY et al.

Page 1189

416 A.2d 1189

177 Conn. 281

Harry MONTEIRO v. AMERICAN HOME ASSURANCE COMPANY et al.

Supreme Court of Connecticut.

Argued Feb. 6, 1979.

Decided April 10, 1979.

Dale W. Radcliffe, Trumbull, with whom, on the brief, was Samuel J. Lazinger, Bridgeport, for appellant (plaintiff).

John J. Cotter, Bridgeport, for appellees (named defendant et al.).

Edward M. Sheehy, Bridgeport, for appellee (defendant Continental Casualty Company).

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

COTTER, Chief Justice.

This action was brought upon three policies of insurance against fire issued to the plaintiff by the defendant insurance companies. Morris Bufferd & Sons, Inc., an insurance agent who sold the policies to the plaintiff, was joined in the second count of the complaint as a party-defendant. The structure insured, owned by the plaintiff, was damaged by fire on March 25, 1972. On February 6, 1974, he commenced this law suit in two counts to recover damages on the fire insurance policies by service on the insurance commissioner of the state of Connecticut. The defendants, American Home Assurance Company and the Jefferson Insurance Company, filed, inter alia, a special defense claiming that the plaintiff failed to comply with the policy provisions regarding bringing suit within one year of the alleged loss. The defendant, Continental Casualty Company, filed, inter alia, a defense that the plaintiff's claims were barred by the "one-year Statute of Limitations"; General Statutes § 38-98; and claimed that the action was barred under the policy provisions.

General Statutes § 38-98 provides in part: "The standard form of fire insurance policy of the state of Connecticut . . . shall be as follows: . . . Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss." The three fire insurance policies held by the plaintiff contained the preceding clause quoted from § 38-98.

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; and such a condition requiring suit to be brought within one year does not operate as a statute of limitations. Chichester v. New Hampshire Fire Ins. Co., 74 Conn. 510, 512-13, 51 A. 545; Chambers v. Atlas Ins. Co., 51 Conn. 17; Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517, 529. See Sacks Realty Co., Inc. v. Newark Ins. Co., 34 Conn.Sup. 564, 565, 377 A.2d 858. This condition is a part of the contract so that it controls the rights of the parties under the contract and, hence, such rights must be governed by the rules of law applicable to contracts. Chichester v. New Hampshire Fire Ins. Co., supra, 513.

The crucial issue in this case, as framed by the plaintiff, is whether he was excused from performance of the contractual condition in the policies, which is also contained in § 38-98 of the General Statutes, to bring suit within twelve months next after the inception of the loss because his compliance was "rendered impossible through the existence of such facts as by the law of contract will excuse the performance of such a condition." Vincent v. Mutual Reserve Life Fund Assn., 74 Conn. 684, 686, 51 A. 1066, 1067. The plaintiff argues that his counsel was under such a "legal disability" as to permit an extension of time within which to bring this action. It is conceded that the plaintiff's original attorney retained to represent him, as found by the trial court, was both physically and mentally incapacitated during the first twelve months immediately following the fire. The record is abundantly clear and well documented with counter affidavits to support the court's finding indicating that his original attorney was suffering from, among other ailments, reticulum cell sarcoma of the skull and was continuously in declining health from approximately March, 1972, when his illness was first discovered, until November 29, 1974, when he died.

The plaintiff, citing Wasserman Theatrical Enterprises, Inc. v. Harris, 137 Conn. 371, 77 A.2d 329, argues that he relied upon his original attorney to protect his interests since he was ill equipped and unable to bring an action in his own behalf "as would have been required by a literal application of the insurance policy"; and that, under the given circumstances of the present case, "the obligation is discharged if he is prevented by such sickness and disability (of his lawyer) from performing it." In Wasserman, however, the defendant agreed to present Walter Huston, a noted actor, in a theatrical performance, but the contract provided that in case of illness no claim for damages would be made. The actor canceled that performance due to a serious throat condition and the defendant was held not liable for the cancellation of the contract. The court stated that an agreement for...