State v. Aetna Cas. & Sur. Co.

• Decision Date: 20 November 1951
• Citation: 84 A.2d 683,138 Conn. 363
• Court: Connecticut Supreme Court
• Parties: STATE v. AETNA CASUALTY & SURETY CO. Supreme Court of Errors of Connecticut

Page 683

84 A.2d 683

138 Conn. 363

STATE v. AETNA CASUALTY & SURETY CO.

Supreme Court of Errors of Connecticut.

Nov. 20, 1951.

Jack Rubin, Asst. Atty. Gen., with whom, on the brief, was George C. Conway, Atty. Gen., for appellant.

Joseph F. Berry, Hartford, for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The state brought this action upon a policy procured pursuant to § 2183 of the General Statutes, whereby the defendant insured the state and the highway commissioner against liability consequent upon defects in state-maintained highways. The defendant contested liability upon the ground, among others, that the plaintiff had violated an express condition of the policy requiring that the insured co-operate and assume no obligation. The court rendered judgment for the defendant and the plaintiff has appealed.

The facts are not in dispute. The defendant issued the policy insuring against liability from accidents occurring within the coverage period of July 1, 1947, to July 1, 1948. This insured the state and the commissioner against liabilities created by § 2201 of the General Statutes and required the defendant to defend against suits brought therefor even though 'groundless, false or fraudulent.' Any obligation of the defendant under the policy was expressly made subject to this condition: 'B. Assistance and Cooperation of the Insured. The Insured shall cooperate with the Company and, upon the Company's request, shall attend hearings and trials and shall assist in effecting settlement, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The Insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense. * * *'

On July 27, 1949, Anthony Sisti brought suit against the state and the commissioner, alleging that on April 1, 1948, he had sustained injuries by reason of a defect in a state-maintained highway in Berlin and claiming $50,000 damages. Sisti had neither given notice within sixty days nor brought suit within one year, as required by § 2201. The General Assembly at its 1949 session adopted, subsequent to April 1, 1949, Special Act No. 484, which authorized Sisti to bring an action notwithstanding his failure either to give the notice or to bring suit within the time prescribed in § 2201. 25 Spec.Laws 1207. The attorney general entered an appearance for the commissioner on August 8, 1949, and the defendant, upon receipt of the process forwarded to it, had its attorneys enter appearance for the state and the commissioner on September 14, 1949. On or about that date the defendant returned the process to the commissioner with a letter stating, '[W]e cannot defend this action nor can the Aetna Casualty & Surety Company be responsible for any judgment that may be obtained against the Highway Commissioner in connection with this lawsuit.' Shortly after, the defendant's attorneys, over the objection of the attorney general, withdrew their appearance with the court's permission. The attorney general then advised the defendant that the state itself would defend the action and hold it responsible upon any adverse judgment rendered and upon 'any settlement that we may deem necessary to make in this action, as well as the cost of defending this action.' After a pretrial hearing, the state, deming it advisable, settled the claim by the payment of $750, which was a reasonable adjustment. On May 15, 1950, the defendant refused the state's demand for reimbursement of the $750 plus $400 for defending the suit.

The court concluded that the plaintiff, by validating the defects in the Sisti action or waiving two defenses which otherwise would have been available to the defendant if compelled to defend, failed to comply with the condition of the policy quoted above; that the plaintiff had assumed an obligation and incurred an expense contrary to the condition of the policy; and that the defendant, by withdrawing its appearance for the defendants in the Sistisuit, had waived no defense which it had to the instant action. The question decisive of the appeal is whether the adoption of the special act constituted a violation of the condition of the policy.

Sisti's right of action under § 2201 was purely statutory. The statute affords a right of recovery against the state similar to that given by § 2126 against municipal corporations for damages from defective highways, and is subject to the same limitations. Pape v. Cox, 129 Conn. 256, 259, 28 A.2d 10. Accordingly, as our repeated decisions have determined, allegations and proof of the sixty days' notice required by the statute were a vital part of Sisti's case. 'They go to the very existence of the action, which in the absence of compliance with the requirements of the statute does not exist at all. 'Until such notice is given no right of action exists.' Crocker v. City of Hartford, 66 Conn. 387, 391, 34 A. 98, 99.' Barteis v. Town of Windsor, 134 Conn. 569, 572, 59 A.2d 535, 536; Forbes v. Town of Suffield, 81 Conn. 274, 275, 70 A. 1023. Furthermore, the 'general rule is that, where a statute gives a right of action which did not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right; it is a limitation of the liability itself as created, and not of the remedy alone.' DeMartino v. Siemon, 90 Conn. 527, 528, 97 A. 765. Therefore at the time when the legislature adopted the special act, Sisti's cause of action was nonexistent for two reasons, first because the sixty days' notice had not been given, and second because suit had not been brought within one year. Neither of these requirements was a statute of limitations. The argument...