Romprey v. Safeco Ins. Co. of Am.

• Decision Date: 29 October 2013
• Docket Number: No. 18858.,18858.
• Citation: 77 A.3d 726,310 Conn. 304
• Court: Connecticut Supreme Court
• Parties: Dolly ROMPREY et al. v. SAFECO INSURANCE COMPANY OF AMERICA.

310 Conn. 304

77 A.3d 726

Dolly ROMPREY et al.

v.SAFECO INSURANCE COMPANY OF AMERICA.

No. 18858.

Supreme Court of Connecticut.

Argued March 20, 2013.

Decided Oct. 29, 2013.

Lisa J. Mainolfi, Milford, for the appellants (plaintiffs).

Andrew S. Turret, New Haven, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.^*

ROGERS, C.J.

This certified appeal addresses whether summary judgment was properly rendered in a matter involving the timeliness provisions set forth in the underinsured motorist statute, General Statutes § 38a–336 (g)(1). ¹ The plaintiffs, Dolly Romprey and Peter Romprey, appeal from the Appellate Court's affirmance of the trial court's summary judgment in favor of the defendant, Safeco Insurance Company of America. See Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 499, 21 A.3d 889 (2011). The plaintiffs contend that the trial court improperly rendered summary judgment for the defendant on the basis of the plaintiffs' failure to satisfy the threshold requirement that their claim involved an underinsured vehicle. Additionally, the plaintiffs argue that by requiring them to submit evidence that they had met the requirements of the statutory tolling provision contained in § 38a–336 (g)(1), the trial court improperly shifted to them the burden of proving an issue regarding which the defendant, in its motion for summary judgment, had not demonstratedthe absence of a genuine issue of material fact. We agree with the plaintiffs and reverse the judgment of the Appellate Court.

The following facts and procedural history, as summarized by the Appellate Court, are relevant to the resolution of this appeal. “The plaintiffs commenced this action on February 26, 2008.² The plaintiffs' complaint alleges the following. On November 16, 2004, Dolly Romprey was involvedin 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 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). 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 arbitrationin 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 [Dolly] Romprey is having surgery and all other medical documentation will be forwarded upon receipt. Also, enclosed please find the Declaration page for ... Kempton. Please be advised that we have exhausted ... Kempton's policy.’ The second letter, dated February 24, 2006, states: ‘Pursuant to ... [§] 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 [Dolly] Romprey's automobile policy, which was in effect on the date of [the] 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.... 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, 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 ... Kempton's policy.” As an out-of-court statement, however, this constitutes hearsay inadmissible to prove that Kempton had an insurance policy [and], 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.” ’ ... [T]he 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.... [T]herefore, 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.’ ” (Citation omitted; footnotes altered.) Romprey v. Safeco Ins. Co. of America, supra, 129 Conn.App. at 484–88, 21 A.3d 889.

The insurance policy, which the Appellate Court concluded complied with the requirements of § 38a–336 (g)(1); id., at 495, 21 A.3d 889; provides in relevant part: “All claims or suits under [the uninsured and underinsured motorist provisions] of this policy must be brought within three years of the date of the accident. However, in the case of a claim involving an underinsured motor vehicle, the insured may toll any applicable limitation period by:

“1. Notifying us prior to expiration of the three year period, in writing, of any claim the insured may have for [u]nderinsured [m]otorists [c]overage; and

“2. Commencing suit or arbitration proceedings not more than 180 days from the date of exhaustion of the limits of liability under all automobile bodily injury bonds or policies applicable at the time of the accident by settlements or final judgments after any appeals.” ³ (Emphasis in original; internal quotation marks omitted.) Id., at 490, 21 A.3d 889.

We begin by setting forth 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, entitle him to a judgment as a matter of law ... and the party opposing...