Romprey v. Safeco Ins. Co. of Am..

• Decision Date: 21 June 2011
• Docket Number: No. 31962.,31962.
• Citation: 21 A.3d 889,129 Conn.App. 481
• Court: Connecticut Court of Appeals
• Parties: Dolly ROMPREY et al.v.SAFECO INSURANCE COMPANY OF AMERICA.

129 Conn.App. 481

21 A.3d 889

Dolly ROMPREY et al.

v.SAFECO INSURANCE COMPANY OF AMERICA.

No. 31962.

Appellate Court of Connecticut.

Argued Jan. 3, 2011.Decided June 21, 2011.

Lisa J. Mainolfi, Milford, for the appellants (plaintiffs).Andrew S. Turret, Wallingford, with whom was Cara D. Joyce, for the appellee (defendant).BEACH, BEAR and WEST, Js.BEAR, J.

The plaintiffs, Dolly Romprey and Peter Romprey, appeal from the summary judgment rendered by the trial court in favor of the defendant, Safeco Insurance Company of America, in their action against the defendant for underinsured motorist benefits. On appeal, the plaintiffs claim that the trial court improperly granted the defendant's motion for summary judgment (1) after finding that the plaintiffs did not toll the three year statute of limitations period in accordance with General Statutes § 38a–336 (g)(1), (2) because the provisions of the applicable insurance policy are invalid and unenforceable, (3) because the defendant breached its contract with the plaintiffs, and (4) because the defendant is estopped from enforcing the terms of its policy. We affirm the judgment of the trial court.

The plaintiffs commenced this action on February 26, 2008.¹ The plaintiffs' complaint alleges the following. On November 16, 2004, Dolly Romprey was involved in a motor vehicle accident in which the vehicle she was driving collided with a vehicle driven by Donna Kempton. The collision was caused by Kempton's negligence. At the time of the accident, Dolly Romprey was insured under an automobile insurance policy issued by the defendant.

The plaintiffs sought to recover from the defendant under the uninsured/underinsured ² motorist provisions of the automobile insurance policy issued by the defendant to the plaintiffs. In count one of the complaint, Dolly Romprey sought compensation for her own alleged injuries, and, in count two of the complaint, Peter Romprey sought compensation for loss of spousal consortium.

The defendant filed an answer and special defenses in which it asserted, inter alia, that the plaintiffs' cause of action was time barred pursuant to § 38a–336 (g)(1).³ On September 24, 2008, the defendant filed a motion for summary judgment. The plaintiffs responded by objecting to the motion for summary judgment but, in the alternative, requested that the court compel arbitration in accordance with the policy of insurance. In support of their objection, the plaintiffs submitted two unauthenticated copies of letters to the defendant, which were signed by a paralegal from the office of the plaintiffs' attorney. The first letter, which is dated December 12, 2005, states: “In connection with the above referenced file, enclosed please find all reports and medical bills thus far. Please be advised that Ms. Romprey is having surgery and all other medical documentation will be forwarded upon receipt. Also, enclosed please find the Declaration page for Donna Kempton. Please be advised that we have exhausted Ms. Kempton's policy.” The second letter, dated February 24, 2006, states: “Pursuant to Connecticut General Statute Section 38a–336 (g)(1), if applicable, consider this a formal demand for arbitration in the above-referenced matter. Furthermore, kindly provide this office with a copy of Ms. Romprey's automobile policy, which was in effect on the date of accident.” The plaintiffs also submitted an unauthenticated document entitled “SETTLEMENT STATEMENT,” which indicates that the plaintiffs received a $25,000 settlement from Kempton.

On December 4, 2009, the court granted the defendant's motion for summary judgment. In the trial court, the defendant asserted that it was entitled to summary judgment because the plaintiffs did not commence their action within three years of the date of the accident as required by the policy. The plaintiffs responded in relevant part that (1) the defendant had notice of the plaintiffs' claim within the three year limitations period, (2) the plaintiffs tolled the three year limitations period by making a written demand for arbitration within 180 days of exhausting the limits of the tortfeasor's liability policy, (3) the defendant breached the insurance contract by failing to respond to the plaintiffs' demand for arbitration and by failing to provide the plaintiffs with a copy of their insurance policy, and, therefore, the three year contractual limitations period was inapplicable, and (4) there was a genuine issue of material fact as to whether the defendant advised the plaintiffs that the three year period applied.

With respect to the three year limitations period, the court determined that there was no genuine issue of fact that the plaintiffs commenced their action more than three years after the date of the accident. It found that the defendant was entitled to judgment as a matter of law unless there was evidence to support the application of the tolling provision. The court then stated that, under the plain language of the policy, the tolling provision applied only in the case of a claim involving an underinsured, as opposed to an uninsured, motor vehicle. It determined that for the plaintiffs to come within the policy's tolling provision, they must establish that the sum of the limits of all bodily injury liability policies applicable to Kempton's vehicle at the time of the accident was less than the limit of liability for the underinsured motorist coverage under their policy. The court noted that “[t]he plaintiffs have submitted an unauthenticated copy of a document entitled ‘SETTLEMENT STATEMENT,’ which appears to indicate that the plaintiffs received a $25,000 settlement from Kempton. There is no indication, however, whether this amount was paid by an insurer or, if it was, whether it represents the full amount of Kempton's liability policy limits. Without any evidence indicating whether Kempton was insured and, if so, whether her bodily injury liability limits were less than $500,000,⁴ it is impossible for the court to determine that the present claim is one ‘involving an underinsured motor vehicle’ and, in turn, that the policy's tolling provision applies.” In a footnote, the court stated that “[t]he plaintiffs have submitted as their exhibit A an unauthenticated letter from a paralegal in their attorney's office indicating that ‘we have exhausted Ms. Kempton's policy.’ As an out-of-court statement, however, this constitutes hearsay inadmissible to prove that Kempton had an insurance policy or, if so, whether it was exhausted.”

Although the court determined that the plaintiffs had not proven that their claim involved an underinsured vehicle, and therefore summary judgment in favor of the defendant should be granted, the court then “assume[d] that the present claim involve[d] an underinsured motor vehicle” and determined “that the plaintiff[s] ha[d] failed to submit evidence to establish that the two prongs of the tolling provision [had] been satisfied. As the language [of the plaintiffs' insurance policy] quoted [previously] indicates, in order to toll the three year limitations period, the plaintiffs would first have to have notified the defendant ‘prior to expiration of the three year period, in writing, of any claim the [plaintiffs] may have for [u]nderinsured [m]otorists [c]overage.’ ” After analyzing this court's opinion in Dorchinsky v. Windsor Ins. Co., 90 Conn.App. 557, 877 A.2d 821 (2005), the trial court concluded as to the first prong of the tolling statute that “none of the documents submitted by the plaintiffs [made] any reference to an underinsured motorist claim, or any other information indicating what type of claim the claim number refers to. Like the plaintiff in Dorchinsky, therefore, the plaintiffs in the present action have failed to produce any evidence indicating that, within three years of the accident, they provided notice in writing of any claim for underinsured motorist coverage.”

With respect to the second prong of the tolling provision, the court found that the documents offered by the plaintiffs did not establish that the settlement with Kempton exhausted the limits of her policy. “Accordingly, the plaintiffs have provided no evidentiary basis from which the court could conclude that a demand for arbitration was made within 180 days of exhaustion. Because the plaintiffs have failed to submit evidence indicating that they satisfied either prong of the policy's tolling provision or that Kempton's vehicle was underinsured, there is no basis for the court to conclude that the three year contractual limitations period was tolled.”

Additionally, the court found that the plaintiffs did not provide evidentiary support for their argument that the defendant had breached the insurance contract by failing to respond to the plaintiffs' demand for arbitration and by failing to provide the plaintiffs with a copy of the insurance policy. The court further found that there was no genuine issue of material fact as to whether the defendant had advised the plaintiffs that the three year statute of limitations applied. Accordingly, the court rendered judgment in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.

“The standard of review of a trial court's decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was 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 test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). “A material fact is a fact which will make a difference in the result of the case.... [I]ssue-finding, rather...