Pascola-Milton v. Millard

• Decision Date: 10 June 2019
• Docket Number: DBDCV166023748S
• Court: Connecticut Superior Court
• Parties: Diana PASCOLA-MILTON v. Leroy MILLARD et al.

Diana PASCOLA-MILTON v. Leroy MILLARD et al.

No. DBDCV166023748S

Superior Court of Connecticut, Judicial District of Danbury, Danbury

June 10, 2019

UNPUBLISHED OPINION

OPINION

Krumeich, J.

Defendant Liberty Mutual Insurance Company ("Liberty") has moved for summary judgment to dismiss all six counts alleged against it by plaintiff pro se Clive Milton ("Milton"). Milton has objected to the motion. For the reasons stated below, the motion for summary judgment is granted and the objection is overruled.

The Standards for Deciding a Motion for Summary Judgment

"The standards ... [for] review of a ... motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith 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 ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact .... A material fact ... [is] a fact which will make a difference in the result of the case ..." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60 (2001). (Citations omitted.)

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45] ..." McGee Avenue, LLC v. Lima Ceramic Tile, LLC, 183 Conn.App. 575, 583-85 (2018) (citation and footnote omitted).

"A party opposing summary judgment ‘must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment ...’ In other words ‘[d]emonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred ... A material fact is one that will make a difference in the result of the case To establish the existence of a [dispute as to a] material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue ... Such assertions are insufficient regardless of whether they are contained in a complaint or a brief ... Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact ... The issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.’" Bank of New York Mellon v. Horsey, 182 Conn.App. 417, 436 (2018) (citations omitted).

The Underlying Tort Claims are Barred by the Statute of Limitations

This action was commenced on July 11, 2016 by Milton’s spouse Diana Pascola-Milton, who alleged she was injured by LeRoy Millard ("Millard") in an automobile accident on November 29, 2014. Milton was permitted to intervene in this action by order dated November 30, 2017, three years after the accident, and his original complaint filed on November 3, 2017, alleged two claims against Millard, bystander emotional distress and loss of consortium, and three claims against Liberty, underinsured motorist benefits, bystander emotional distress and loss of consortium. Milton has amended his complaint four times. The operative pleading at the time this motion was filed was "Plaintiff’s Second Amended Complaint" dated June 19, 2018. On May 29, 2019, Milton filed "Plaintiff’s Third Revised Complaint" in compliance with a court order that he revise his complaint. The Second and Third Amended complaints alleged the same counts against Liberty: (1) bystander emotional distress, (2) violation of the Connecticut Unfair Insurance Practice Act ("CUIPA") and the Connecticut Unfair Trade Practices Act ("CUTPA"), (3) bystander emotional distress, (4) loss of consortium, (5) breach of contract, (6) intentional infliction of emotional distress, (7) breach of duty to settle, (8) failure of duty to inform insured, and (9) breach of contract and covenant of implied duty of good faith and fair dealing.

Liberty has moved for summary judgment arguing that all Milton’s claims against it must fail because the negligence claims against Millard, the tortfeasor, are barred by the applicable two-year statute of limitation, C.G.S. § 52-584.^[1]

In Forest v. Millen, 2018 WL 1459766 *2 (Conn.Super. 2018) (Bellis, J.), Judge Bellis discussed the respective burdens of proof when summary judgment is sought based on statutes of limitation:" ‘Summary judgment may be granted where a claim is barred by the statute of limitations ... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute’ ... ‘[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside the statutory limitation period’ ... ‘When documents submitted in support of a ... motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.’" (Citations omitted.)

Connecticut General Statutes § 52-584 provides, in pertinent part: "[n]o action to recover damages for injury ... to real or personal property, caused by negligence ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ..."^[2]

When determining whether an action was timely commenced, the Supreme Court has held that an injury occurs when a party suffers some form of actionable harm. See Catz v. Rubenstein, 201 Conn. 39, 45 (1986).

" ‘Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action ... A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm ... Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another ... In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm.’ ... ‘The focus is on the plaintiff’s knowledge of facts, rather than on discovery of applicable legal theories.’ ... The determination of ‘whether a party’s claim is barred by the statute of limitations is a question of law ... Determining when a plaintiff suffers actionable harm, however, is ordinarily a question of fact.’" Forest, 2018 WL 1459766 *3 (citations omitted).

Actionable harm to Milton on his claims against Millard occurred on the date of the accident, November 29, 2014. See Clohessy v. Bachelor, 237 Conn. 31, 52 (1996) ("the bystander’s emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury"); Rivera v. Double Transp., Inc., 248 Conn. 21, 31 (1999) ("mental suffering, even if unaccompanied by physical trauma to the body, constitutes an injury to the person under § 52-584"); Conn. Assur. Guar. Ass’n v. Fontaine, 278 Conn. 779, 785-86 (2014) ("cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the...