Pollard v. GEICO Gen. Ins. Co.

• Decision Date: 06 September 2022
• Docket Number: AC 44560
• Citation: 215 Conn.App. 11,282 A.3d 535
• Parties: Michelle J. POLLARD v. GEICO GENERAL INSURANCE COMPANY
• Court: Connecticut Court of Appeals

215 Conn.App. 11

282 A.3d 535

Michelle J. POLLARD

v.GEICO GENERAL INSURANCE COMPANY

AC 44560

Appellate Court of Connecticut.

Argued May 9, 2022

Officially released September 6, 2022

John A. Sodipo, Hartford, for the appellant (plaintiff).

Joseph M. Busher, Jr., Wethersfield, for the appellee (defendant).

Elgo, Suarez and DiPentima, Js.

DiPENTIMA, J.

The plaintiff, Michelle J. Pollard, appeals from the summary judgment rendered by the trial court in favor of the defendant, Geico General Insurance Company, on the plaintiff's complaint seeking to recover underinsured motorist benefits. On appeal, the plaintiff claims that the court improperly determined that the accidental failure of suit statute, General Statutes § 52-592 (a), did not apply so as to revive her otherwise time barred action. The defendant counters that summary judgment was appropriately rendered and asserts, as an alternative ground for affirmance of the court's judgment, that the plaintiff's action was barred because she failed under the terms of the parties’ insurance policy to commence suit timely or to invoke the policy's tolling provision. We agree with the defendant's alternative argument and, accordingly, affirm the judgment of the trial court on that basis.

The following facts, viewed in the light most favorable to the plaintiff, and procedural history are relevant. In November, 2016, the plaintiff brought a prior action to recover underinsured motorist benefits against the defendant in connection with an automobile collision (2016 action).¹ In the operative complaint in that action, the plaintiff alleged that, on or about September 17, 2012, she was rear-ended by a vehicle operated by Norma Rivera while operating her automobile in a drivethrough lane of a fast food restaurant in Hartford and, as a result, she suffered injuries and incurred medical expenses. She alleged that Rivera's insurer paid her the full liability limits under Rivera's automobile insurance policy such that coverage under Rivera's policy was exhausted on or about June 9, 2016. She further alleged that she had not been sufficiently compensated by Rivera's policy and that, pursuant to the insurance policy between her and the defendant, the defendant was required to provide her with underinsured motorist benefits but had failed to do so. She claimed breach of contract, breach of the implied covenant of good faith and fair dealing, a violation of Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and breach of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq.

During the litigation of the 2016 action, a dispute arose regarding the plaintiff's compliance with the defendant's interrogatories and requests for production, which culminated in the court, Shapiro, J. , granting the defendant's motion for nonsuit on May 31, 2018. In granting the motion for nonsuit, the court stated: ‘‘Granted absent objection. Nonsuit may enter against the plaintiff due to failure to comply with the court's previous order, dated October 6, 2017, directing discovery compliance by November 3, 2017.’’

In April, 2019, the plaintiff initiated the present action against the defendant pursuant to the accidental failure of suit statute. In the operative complaint, the plaintiff repeated the allegations in the 2016 action, and again claimed breach of contract (count one), breach of the implied covenant of good faith and fair dealing (count two), a violation of CUTPA (count three) and a violation of CUIPA (count four). The defendant filed a motion to strike counts two, three and four of the complaint, which the court granted on February 13, 2020, leaving only count one, in which the plaintiff alleged that the defendant breached the contract between the parties by failing to provide her with underinsured motorist benefits in relation to the September, 2012 collision at the fast food restaurant.

The defendant filed a motion for summary judgment and memorandum of law in which it contended that no genuine issue of material fact existed that (1) the plaintiff could not bring the present action for underinsured motorist benefits pursuant to the accidental failure of suit statute because the nonsuit in the 2016 action was for disciplinary reasons and was not a matter of form² and (2) the plaintiff failed to bring an action within three years of the date of the accident and failed to invoke the tolling provision of the insurance policy by providing the defendant with proper written notice of a claim for underinsured motorist benefits and, therefore, the present action is time barred. The plaintiff filed an objection and a memorandum of law in opposition to the defendant's motion. The court, Cobb, J. , granted the defendant's motion for summary judgment on the first ground after determining that no genuine issues of material fact existed and that, as a matter of law, the accidental failure of suit statute was not applicable. The court did not address the second ground raised in the defendant's motion. The plaintiff filed a motion to reargue/reconsider, which the court denied. Additional facts and procedural history will be set forth as necessary. This appeal followed.

On appeal, the plaintiff claims that the court erred in granting the defendant's motion for summary judgment because (1) the court's conclusion was based on an insufficient factual record, (2) the court erred in making credibility assessments on the basis of a ‘‘cold printed record’’ and (3) the court erred in deciding on a motion for summary judgment issues concerning motive, intent and subjective feelings and reactions. The plaintiff also claims that the court violated her right to due process in granting the defendant's motion for summary judgment and denying her motion to reargue/reconsider without a hearing.³

We turn our focus to the issue that was raised by the defendant in its motion for summary judgment that was not addressed by the trial court. On appeal, the defendant argues that no genuine issues of material fact exist with respect to the plaintiff's failure, as a matter of law, to invoke the tolling provision of the insurance policy, which requires, inter alia, a timely written notice to the defendant of her claim for underinsured motorist benefits. This alternative ground, which was properly raised on appeal by the defendant and which the plaintiff had the opportunity to address in her reply brief, is dispositive of the appeal.⁴ See Hoskins v. Titan Value Equities Group, Inc. , 252 Conn. 789, 794, 749 A.2d 1144 (2000) (‘‘Where the trial court reaches a correct decision but on [alternative] grounds, this court has repeatedly sustained the trial court's action if proper grounds exist to support it. ... [W]e ... may affirm the court's judgment on a dispositive alternate ground for which there is support in the trial court record.’’ (Citation omitted; internal quotation marks omitted.)); Vollemans v. Wallingford , 103 Conn. App. 188, 219, 928 A.2d 586 (2007) (appellate court has discretion to rule on alternative grounds for summary judgment, even when trial court did not do so), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).

We begin with the applicable standard of review. ‘‘The standards governing our review of a trial court's decision to grant 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, entitles 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. ... Finally, the scope of our review of the trial court's decision to grant [a party's] motion for summary judgment is plenary.’’ (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC , 306 Conn. 107, 115–16, 49 A.3d 951 (2012).

According to General Statutes § 38a-336 (g) (1), ‘‘[n]o insurance company doing business in this state may limit the time within which any suit may be brought against it ... on the ... underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.’’ The requirements in § 38a-336 (g) (1) for underinsured motorist claims were incorporated into the insurance policy between the parties. Section V, paragraph 6, of the insurance policy, under the subheading ‘‘CLAIMS OR SUITS,’’ addresses claims under section IV of the insurance policy, which concerns uninsured and underinsured motorist benefits, and provides: ‘‘All claims or suits under Section IV must be brought within three years of the date of accident. However, this does not apply to an underinsured motorist claim if the insured : (a)...