Brown v. State Farm Fire & Casualty Co. ( 2014 )

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RALSTON BROWN v. STATE FARM FIRE AND
CASUALTY COMPANY
(AC 35347)
Beach, Alvord and Flynn, Js.
Argued December 4, 2013—officially released May 27, 2014
(Appeal from Superior Court, judicial district of
Fairfield, S. Richards. J. [motion for summary
judgment]; Bellis, J. [motion for extension of time]; Hon.
William B. Rush, judge trial referee [objection to motion
to strike]; Hon. L. Scott Melville, judge trial referee
[judgment].)
Ralston Brown, self-represented, the appellant
(plaintiff), filed a brief.
Daniel P. Scapellati, for the appellee (defendant).
Opinion
FLYNN, J. In this breach of insurance contract action,
the plaintiff, Ralston Brown, claims that the defendant,
State Farm Fire and Casualty Company, wrongfully
failed to cover the fire loss sustained to his dwelling
at 100 Harral Avenue in Bridgeport, which occurred on
April 21, 2006. The trial court rendered judgment for
the defendant after a trial to the court on the merits.
On appeal, the plaintiff claims that: (1) Judge Richards
erred in denying the plaintiff’s motion for summary
judgment; (2) Judge Bellis abused her discretion by
granting the defendant’s motion for an extension of
time to file its opposition to the plaintiff’s motion for
summary judgment; (3) Judge Rush abused his discre-
tion by sustaining the defendant’s objection to the plain-
tiff’s motion to strike the affidavits of certain witnesses
in connection with the summary judgment motion; (4)
Judge Melville erred in concluding that the plaintiff’s
post-loss premium payment reinstated his insurance
coverage prospectively only;1 and (5) Judge Melville
erred in rendering judgment for the defendant after a
trial on the merits, concluding that the homeowner’s
insurance policy was not in effect on April 21, 2006,
the date of the fire. First, we conclude that the plaintiff’s
claim of error in denying summary judgment is unre-
viewable. With it fall the plaintiff’s two related claims
made in connection with his motion for summary judg-
ment. Second, we reject the plaintiff’s claim that the
defendant waived its right to deny coverage by
accepting payment from the defendant after his loss.
Finally, we conclude that the plaintiff has failed to show
that Judge Melville erred in rendering judgment for the
defendant. Accordingly, we affirm the judgment of the
trial court.
The following facts, as found by Judge Melville and
supported by the record, are relevant to our review.
The plaintiff purchased a homeowner’s insurance policy
from the defendant on September 16, 2004, to be billed
on a quarterly basis. The plaintiff purchased a business
policy from the defendant on September 26, 2005. At
the plaintiff’s request, the defendant agreed to bill the
plaintiff quarterly on the same date for both policies,
rather than on each policy’s anniversary date. He did
not pay the full amount owed for that quarter.2
On February 16, 2006, the plaintiff was billed $729.85
for the quarter beginning in March, 2006, payable on
or before April 6, 2006.3 On March 22, 2006, the plaintiff
was sent a cancellation notice indicating that his poli-
cies would be cancelled on April 6, 2006, if he failed to
pay that amount by that date. The plaintiff did not tender
payment prior to April 6, 2006. The plaintiff admitted
to finding the cancellation notice in the debris left after
the fire.
On April 21, 2006, the plaintiff’s dwelling was lost
due to fire. After the fire, and upon discovering a cancel-
lation notice sent from the defendant, dated March 22,
2006, the plaintiff mailed the defendant the missing
payment. The defendant credited the plaintiff’s account
$729.85 on April 22, 2006—the day after the fire. The
court found that this payment reinstated the plaintiff’s
policy, effective that day.
The plaintiff filed an insurance claim with the defen-
dant for the fire loss to his dwelling, which it denied. The
plaintiff thereafter filed a one count complaint alleging
breach of contract against the defendant. After a bench
trial, the court rendered judgment in favor of the defen-
dant. This appeal followed.
I
We first address the plaintiff’s claim that the trial
court erred by denying his motion for summary judg-
ment. We conclude that this claim is not appropriate
for our review because it was not in itself a final judg-
ment for the purpose of appeal and it is not reviewable
after judgment was rendered because a full trial ren-
dered the ruling on the motion for summary judgment
academic. We further conclude that two other claims
raised by the plaintiff connected with the summary
judgment motion must fall as well.
A
‘‘Our appellate courts lack jurisdiction to hear an
appeal that is not brought from a final judgment. . . .
Because our jurisdiction over appeals . . . is pre-
scribed by statute, we must always determine the
threshold question of whether the appeal is taken from
a final judgment before considering the merits of the
claim.’’ (Citations omitted; internal quotation marks
omitted.) Lakeside Estates, LLC v. Zoning Commis-
sion, 100 Conn. App. 695, 697–98, 919 A.2d 1044 (2007).
‘‘[T]he denial of a motion for summary judgment is
not a final judgment and therefore is not ordinarily
appealable.’’ Aetna Casualty & Surety Co. v. Jones,
220 Conn. 285, 295 n.12, 596 A.2d 414 (1991); see also
Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646,
653, 954 A.2d 816 (2008); Denby v. Voloshin Cadillac
Inc., 3 Conn. App. 181, 181–82 n.3, 485 A.2d 1360, cert.
dismissed, 196 Conn. 802, 491 A.2d 1105 (1985).
The claim that the denial of a motion for summary
judgment was erroneous is also ordinarily not review-
able after a final judgment on the merits has later been
rendered. Our Supreme Court has held that ‘‘absent
exceptional circumstances, a denial of a motion for
summary judgment is not appealable where a full trial
on the merits produces a verdict against the moving
party.’’ (Internal quotation marks omitted.) Gurliacci
v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991);
see also Smith v. Greenwich, 278 Conn. 428, 465, 899
A.2d 563 (2006). The rationale for this rule is that a
decision based on evidence presented at trial precludes
review of a decision made on less summary judgment
evidence. Gurliacci v. Mayer, supra, 541 n.7.
In the present case, the plaintiff appeals from a denial
of summary of judgment, which is not a final judgment.
He attempts to do so following a trial on the merits.
Any claimed error in the denial of summary judgment
‘‘merged into the subsequent decision on the merits.’’
Gurliacci v. Mayer, supra, 218 Conn. 541 n.7. Further-
more, his claim does not satisfy any of the exceptions
recognized under our law. See, e.g., Pelletier v. Sardoni/
Skanska Construction Co., 286 Conn. 563, 576–78, 945
A.2d 388 (2008) (exceptional circumstances permit
court to review denial of motion for summary judgment
because court decided issue as matter of law, which
controlled later proceedings). Therefore, the plaintiff’s
claim that the trial court erred in denying his motion
for summary judgment is not reviewable.
B
Having concluded that the denial of the plaintiff’s
motion for summary judgment is not reviewable, the
two other claims he raises relating to summary judg-
ment also must fall with it. Specifically, despite the fact
that Practice Book § 17-47 authorizes a trial court, in
its discretion, to grant a reasonable continuance to a
party opposing summary judgment in order to obtain
documentary evidence, the plaintiff nonetheless
attempts to appeal from the court’s order granting the
defendant an extension of time to file its opposition
to the plaintiff’s motion. The plaintiff also attempts to
appeal the court’s order denying the plaintiff’s motion
to strike the affidavits of India Willis and Roseanne
Faulker submitted by the defendant in its opposition
to the plaintiff’s motion for summary judgment.
Both of these claims arose as part of the plaintiff’s
unreviewable claim regarding the denial of his motion
for summary judgment. Furthermore, because the
appeal on these issues follows a judgment on the merits,
appellate resolution of these claims would be wholly
academic. Thus, we conclude that these two claims are
subsumed by the plaintiff’s unreviewable claim that the
court erroneously denied its motion for summary judg-
ment, and we decline to review these claims.
II
The plaintiff next argues that the defendant waived
its right to deny coverage for the loss when it accepted
payment after the April 21, 2006 fire and then declined
to provide coverage retroactive to the date of loss. He
contends that the court erred in concluding that the
plaintiff’s post-loss premium payment operated to rein-
state his coverage prospectively only. We disagree.
This claim, one of first impression, presents a ques-
tion of law, over which our review is plenary. Fromm
v. Fromm, 108 Conn. App. 376, 383, 948 A.2d 328 (2008).
The following language from the plaintiff’s insurance
contract informs our analysis of this claim.4 Among
the declarations in the insurance policy issued by the
defendant to the plaintiff was the proviso: ‘‘You agree,
by acceptance of this policy, that . . . you will pay
premiums when due and comply with the provisions
of the policy.’’ The policy further states: ‘‘We may cancel
this policy only for the reasons stated in this condition.
. . . (1) When you have not paid the premium, we may
cancel at any time by notifying you at least 10 days
before the date cancellation takes effect.’’ The cancella-
tion notice sent to the plaintiff on March 22, 2006, with
a cancellation date of April 6, 2006, states: ‘‘Should you
wish to reinstate these policies, please forward your
payment immediately. . . . If paid after [the] date and
time [of cancellation] you will be informed whether
your policies have been reinstated and if so, the exact
date and time of reinstatement. There is no coverage
between the date and time of cancellation and the date
and time of reinstatement.’’
The policy language previously set forth notwith-
standing, the plaintiff maintains that the defendant’s
post-loss acceptance of his late premium payment obli-
gated it to cover the loss sustained to his dwelling on
April 21, 2006. The court concluded otherwise. In its
memorandum of decision, the court noted the dearth of
Connecticut case law addressing whether late premium
payments should be applied retroactively, or whether
the late payment merely reinstates coverage prospec-
tively. The trial court determined that the approach
taken in a majority of jurisdictions represented the bet-
ter view, and held that when a late payment is made
on a lapsed insurance policy, the payment restores the
policy going forward fully. Applying this rule here, the
court determined that because the ‘‘plaintiff did not pay
the $729.85 until April [21], 2006.5 Consequently, [the
plaintiff’s] policies were not in force between April 6,
2006, and April 22, [2006].6 On April 22, 2006, the plain-
tiff’s policies were ‘reinstated.’ However, that reinstate-
ment was prospective with regard to coverage and did
not cover the fire loss which occurred on April 21,
2006.’’ (Footnotes omitted.)
Our state’s appellate courts have not had occasion
to consider this issue previously. According to the view
followed in a majority of jurisdictions,7 when a lapsed
insurance policy is reinstated, ‘‘losses suffered between
the time of the lapse and the reinstatement are not
covered.’’ R. Jerry, Understanding Insurance Law (3d
Ed. 2002) § 62B, p. 437.
This rule effectuates an important principle of insur-
ance law: the concept of fortuity. ‘‘It is a fundamental
requirement in insurance law that the insurer will not
pay for a loss unless the loss is ‘fortuitous,’ meaning
that the loss must be accidental in some sense. . . .
[L]osses that are certain to occur, or which have already
occurred are not fortuitous.’’ (Footnote omitted.) R.
Jerry, supra, § 63, pp. 450–51. This principle explains
why a person cannot suffer a loss and then subsequently
purchase insurance to cover that loss. It is axiomatic
that ‘‘a known loss that has already occurred . . . is
not uncertain to occur.’’8 Id., p. 451.
This reasoning is persuasive to the court. One pro-
cures insurance because he might suffer a future loss.
A loss that has already occurred is not fortuitous—and
is thus not insurable. Without such a rule, one could
allow his coverage to lapse by not paying his premiums
timely and then, upon suffering a loss, force his insurer
to ‘‘buy a claim’’ by quickly making the missed premium
payments to reinstate his lapsed coverage retroactively.
Such a rule would allow the insured to consciously shift
the burden of his known loss from himself onto his
insurer, and, ultimately, onto those policy holders who
have dutifully paid their premiums on time and main-
tained continuous insurance coverage. Accordingly, we
conclude that when an insurance policy has been can-
celled due to nonpayment of premiums, and the insured
seeks to reinstate that policy, the insurer is within its
rights to reinstate coverage effective only for losses
going forward.
Here, pursuant to the insurance policy and cancella-
tion notice sent by the defendant to the plaintiff, the
insured was not entitled to coverage for losses sus-
tained to his 100 Harral Avenue dwelling on April 21,
2006. ‘‘An insurance policy is to be interpreted by the
same general rules that govern the construction of any
written contract and enforced in accordance with the
real intent of the parties as expressed in the language
employed in the policy.’’9 (Internal quotation marks
omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279
Conn. 194, 199, 901 A.2d 666 (2006). By its terms, the
language of the insurance policy and cancellation notice
foreclosed coverage during the cancellation period.
Furthermore, it would be contrary to the public policy
discussed previously to permit the plaintiff to reinstate
insurance coverage on his property at a time when
he knew that he had already sustained a loss to that
property. Therefore, we reject the plaintiff’s argument
that the defendant waived its right to deny coverage
for the plaintiff’s loss by its acceptance of the late pre-
mium payment.
III
Finally, the plaintiff claims that Judge Melville erred
in finding that the homeowner’s policy was not in effect
on April 21, 2006, the day of the fire, due to nonpayment
of premiums. We are not persuaded.
We begin by setting forth the applicable standard of
review. ‘‘In a case tried before a court, the trial judge
is the sole arbiter of the credibility of the witnesses
and the weight to be given specific testimony. . . . It
is within the province of the trial court, as the fact
finder, to weigh the evidence presented and determine
the credibility and effect to be given the evidence. . . .
[F]actual findings of a trial court . . . are reversible
only if they are clearly erroneous. . . . This court can-
not retry the facts or pass upon the credibility of the
witnesses. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . We do not examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached. Rather, we
focus on the conclusion of the trial court, as well as
the method by which it arrived at that conclusion, to
determine whether it is legally correct and factually
supported.’’ (Citation omitted; internal quotation marks
omitted.) Joseph General Contracting, Inc. v. Couto,
144 Conn. App. 241, 249, 72 A.3d 413, cert. granted on
other grounds, 310 Conn. 924, 77 A.3d 139 (2013).
The court made the following findings of fact. The
plaintiff was billed on a quarterly basis, with the first
quarter of the billing year commencing in September.
On November 17, 2005, the plaintiff was sent a bill for
$765.48 for the second quarter of the policy year, due
by December 16, 2005. The plaintiff made a payment
on December 16, 2005, of $257.16, some $508.32 less
than he owed. The court determined that this was a
partial payment for the second quarter of 2005 by adding
the amount of the payment ($257.16) and the amount
owed on the cancelation notice ($508.32), which sums
precisely to $765.48. On December 21, 2005, the plaintiff
was sent a cancellation notice informing him that he
was required to pay the unpaid balance to avoid the
cancellation of his homeowner’s policy on January 10,
2006. On January 17, 2006, the plaintiff made a payment
of $508.32 to the defendant. With this payment, the
plaintiff’s coverage was reinstated, but his homeown-
er’s policy was not in force between January 10, 2006,
and January 17, 2006.
On February 16, 2006, the plaintiff was billed $729.85
for both policies, payable in advance by March 16, 2006.
This covered the third quarter of the policy year, March
through May 2006. A cancellation notice was sent on
March 22, 2006, explaining that both policies would be
cancelled on April 6, 2006, if payment was not remitted
before April 6, 2006. At trial, the plaintiff admitted that
he failed to pay any part of this bill on or before the
March 16, 2006 due date or the April 6, 2006 cancellation
date. The court found that, due to nonpayment by the
plaintiff, the homeowner’s policy was not in effect on
April 21, 2006. The plaintiff introduced no evidence that
his payment had made prior to the effective date of
cancellation on April 6, 2006, or that any payment had
been made before the fire occurred on April 21, 2006.
Thus, the court rejected the plaintiff’s claim that this
payment was made timely.
Our thorough review of the record leads us to con-
clude that the plaintiff has not shown that the trial
court’s findings of fact were clearly erroneous. In his
well reasoned memorandum of decision, Judge Melville
found that the plaintiff failed to pay the plan’s premium
on or before the cancellation date (April 6, 2006); the
defendant was entitled to cancel the policy and deny
coverage for the claimed loss on April 21, 2006.
The plaintiff argues that the two policies (homeown-
er’s and business) were ‘‘completely separated’’ for bill-
ing purposes; that the defendant misapplied his
premium payments; and that had the defendant cor-
rectly applied these payments his coverage would not
have been cancelled on April 6, 2006. When asked to
provide evidence to support his position, the plaintiff
could supply only his own testimony; he was unable to
provide the court with any documentary evidence in
support of his position. The trial court rejected this
argument, concluding that the plaintiff ‘‘failed to offer
any evidence . . . which could establish how the
defendant applied his payments,’’ thus failing to meet
his burden of proof.
When sitting as the finder of fact, ‘‘[i]t is within the
province of the trial court . . . to weigh the evidence
presented and determine the credibility and effect to
be given the evidence.’’ (Internal quotation marks omit-
ted.) Burton v. Mottolese, 267 Conn. 1, 40, 835 A.2d 998
(2003). Furthermore, although it was not required to
do so,10 the defendant submitted evidence from which
the court could reasonably have reached its conclusion
contrary to that urged by the plaintiff. Specifically, the
defendant placed into evidence a chart showing the
plaintiff’s history of premium payments and missed pay-
ments. This table showed that he was billed $729.85 for
both policies on February 16, 2006. Payment was due
on March 16, 2006, and when he failed to remit payment
timely, his coverage was canceled effective April 6,
2006. An employee of the defendant testified that the
bill sent to the plaintiff for the third quarter was for
both policies and that had the plaintiff paid the balance
before April 6, 2006, he would have been covered for
the months of March, April, and May 2006, including
the April 21, 2006 loss. Accordingly, we defer to the
trial court’s assessment of the witnesses and evidence,
and conclude that there was sufficient evidence in the
record to support the trial court’s factual conclusions.
We thus reject the plaintiff’s claim that the trial court’s
findings of fact were clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also claims that under the law of agency, the defendant
was bound by the supposed representation made by its independent contrac-
tor, John Reilly, to the plaintiff that the plaintiff would be billed monthly,
rather than quarterly for his insurance. We decline to decide this issue
because its outcome is not dispositive of the resolution of this appeal. Even
if Reilly were an actual or apparent agent of the defendant, his supposed
oral modification of the insurance contract would not bind the defendant
because there was no written agreement by the defendant to alter the terms
of the agreement, as required under the insurance policy. The policy states:
‘‘A waiver or change of any provision of the policy must be in writing by
us to be valid.’’ ‘‘Where the language of the [writing] is clear and unambigu-
ous, the [writing] is to be given effect according to its terms.’’ (Internal
quotation marks omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co.,
293 Conn. 218, 226, 975 A.2d 1266 (2009).
2
The plaintiff made a partial payment for the quarter of $257.16 in person
at the defendant’s office on September 16, 2005.
3
The plaintiff was billed quarterly, with the first quarter beginning in
September and running through November.
4
Connecticut has adopted a statutory form of standard fire insurance
policy. General Statutes § 38a-307. It provides in pertinent part that: ‘‘[T]he
standard form of fire insurance policy of the state of Connecticut . . . shall
be as follows . . . .
‘‘Cancellation of policy. . . . This policy may be cancelled at any time
by this Company by giving to the insured and any third party designated
pursuant to [General Statutes §] 38a-323a, a thirty days’ written notice of
cancellation accompanied by the reason therefor with or without tender of
the excess of paid premium above the pro rata premium for the expired
time, which excess, if not tendered, shall be refunded on demand. Notice
of cancellation shall state that said excess premium (if not tendered) will
be refunded on demand. Where cancellation is for nonpayment of premium
at least ten days’ written notice of cancellation accompanied by the reason
therefor shall be given.’’ General Statutes § 38a-307. The policy that the
defendant issued was in conformance with this statutory standard as to can-
cellation.
5
The defendant conceded at trial that he did not make the payment of
$729.85 until April 21, 2006, after the fire. The memorandum of decision
transposed April 21, 2006, to April 12, 2006, in error.
6
The memorandum of decision erroneously referred to April 22, 2011,
when the court was obviously referring to April 22, 2006.
7
R. Jerry, Understanding Insurance Law (3d Ed. 2002) § 62B, p. 437 (stating
that most courts treat reinstated insurance policy as continuing lapsed
policy, rather than creating new contract for insurance).
8
Furthermore, there is authority for the proposition that ‘‘when an insurer
accepts payment for a premium-lapsed policy with knowledge that a loss
has occurred during the period of lapse, the insurer may . . . apply the
premium from the date received forward [only if the insurer] clearly con-
veyed to the insured [its intent to do so] before the premium [payment] is
accepted.’’ 44A Am. Jur. 2d 93, Insurance § 1612, n.3 (2003); see also; see
also O’Connor v. Metropolitan Life Ins. Co., 121 Conn. 599, 604–11, 186 A.
618 (1936). In the present case, the cancellation notice sent to the plaintiff
by the defendant gave him the option of reinstating his lapsed coverage,
but provided explicitly that ‘‘[t]here is no coverage between the date and
time of cancellation and the date and time of reinstatement.’’
9
The interpretation of an insurance contract presents a question of law,
over which our review is plenary. Nationwide Mutual Ins. Co. v. Allen, 83
Conn. App. 526, 537, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d
562 (2004).
10
It is elementary that in a civil action, ‘‘the general burden of proof rests
upon the plaintiff . . . .’’ (Internal quotation marks omitted.) Suresky v.
Sweedler, 140 Conn. App. 800, 807, 60 A.3d 358 (2013).