Pollard v. Geico General Ins. Co. ( 2022 )

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MICHELLE J. POLLARD v. GEICO GENERAL
INSURANCE COMPANY
(AC 44560)
Elgo, Suarez and DiPentima, Js.
Syllabus
The plaintiff sought to recover underinsured motorist benefits pursuant
to an automobile insurance policy issued by the defendant insurer in
connection with injuries she had sustained in a motor vehicle accident
in 2012. The plaintiff first brought an action against the defendant in
2016 related to the accident, which the trial court disposed of by granting
the defendant’s motion for nonsuit due to the plaintiff’s failure to comply
with discovery orders. The plaintiff initiated the present action against
the defendant in 2019 pursuant to the accidental failure of suit statute
(§ 52-592 (a)). The defendant moved for summary judgment, alleging
that the plaintiff could not bring the present action pursuant to § 52-
592 (a) because the nonsuit in the prior action was for disciplinary
reasons and further alleging that her claim for benefits was untimely
pursuant to the terms of the policy, which precluded claims for underin-
sured motorist benefits from being brought more than three years after
the date of an accident without invoking a tolling provision of the policy
by providing the defendant with written notice of a claim for uninsured
motorist benefits. The plaintiff claimed that a letter her counsel sent to
the defendant in 2012 satisfied the tolling provision of the insurance
policy. The trial court granted the motion and rendered judgment
thereon, from which the plaintiff appealed to this court. Held that the
plaintiff could not prevail on her claim that the trial court improperly
granted summary judgment to the defendant: although the trial court
granted the motion for summary judgment on the basis that, as a matter
of law, § 52-592 (a) was not applicable, this court affirmed the trial
court’s granting of summary judgment on the alternative ground that
no genuine issues of material fact existed as to whether the plaintiff
failed to bring suit within three years and failed to toll that limitation
period in accordance with the insurance policy, as it was undisputed that
the plaintiff commenced the action for underinsured motorist benefits
outside of the three year limitation period, as neither the 2016 action
nor the 2019 action was commenced within three years of the 2012
accident, and, the written notice the plaintiff provided to the defendant of
the accident contained no reference to a potential claim for underinsured
motorist benefits and, thus, as a matter of law, was insufficient to satisfy
the policy’s unambiguous tolling provision; moreover, the defendant
was not required to make a showing that no genuine issue of material
fact existed as to all elements of the tolling provision, as the plaintiff’s
failure to meet either requirement of the tolling provision rendered it
inapplicable.
Argued May 9—officially released September 6, 2022
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Hon. Robert B. Shapiro, judge trial referee,
granted the defendant’s motion to strike; thereafter,
the court, Cobb, J., granted the defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court.
Affirmed.
John A. Sodipo, for the appellant (plaintiff).
Joseph M. Busher, Jr., for the appellee (defendant).
Opinion
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 seek-
ing 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 favor-
able 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 drive-
through 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 Rive-
ra’s policy and that, pursuant to the insurance policy
between her and the defendant, the defendant was
required to provide her with underinsured motorist ben-
efits 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 produc-
tion, which culminated in the court, Shapiro, J., grant-
ing 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 discov-
ery 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 plain-
tiff 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 neces-
sary. 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 plain-
tiff 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.)); Volle-
mans 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 pro-
visions 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 pol-
icy, which concerns uninsured and underinsured motor-
ist 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) notifies
us within three years of the date of accident, in writing,
that he may have a claim for underinsured motorists
benefits; and (b) commences suit under the terms of
the policy no more than 180 days from the date of
exhaustion of the limits of liability under all automobile
bodily injury bonds or automobile insurance policies
applicable at the time of the accident by settlements
or final judgments after any appeals.’’ (Emphasis in
original.)
It is undisputed that the plaintiff commenced an
action for underinsured motorist benefits outside the
three year limitation period. Specifically, neither the
2016 action nor the present action were commenced
within three years after the September 17, 2012 acci-
dent. At issue is whether a genuine issue of material
fact exists regarding whether a letter, dated October
1, 2012, that is addressed to the defendant from the
plaintiff’s counsel and is titled ‘‘LETTER OF REPRE-
SENTATION,’’ satisfies part (a) of the tolling provision
of the policy, which concerns written notice to the
defendant of a claim for underinsured motorist benefits.
Although the plaintiff in its opposition mentioned phone
calls between the parties, the only notification that was
in writing, as required under the policy, is the October
1, 2012 letter. In the operative complaint in the present
action, the plaintiff alleged that ‘‘[the defendant] was
notified on or about September 17, 2012, about the
collision to set up property damage and a personal
injury file.’’ In its memorandum of law in support of its
motion for summary judgment, the defendant argued
that the October 1, 2012 letter did not satisfy the require-
ment of part (a) of the tolling provision of the insurance
policy because it ‘‘makes no reference to a claim for
underinsured motorist benefits.’’ The defendant
attached a copy of the October 1, 2012 letter to its
motion. The plaintiff attached to her opposition the
October 1, 2012 letter and an affidavit of Bildade
Augustin, a litigation paralegal at Jacobs & Sodipo, LLC.
Augustin stated that, ‘‘[b]ased on my training and the
information given to me by [the plaintiff], I knew that
there might be an uninsured or underinsured motorist
claim against [the plaintiff’s] policy. To this extent, I
simultaneously sent a notice of claim, which we also
refer to as a letter of representation, to both Nationwide
(the tortfeasor’s insurer of record in the police report)
and also to [the defendant] . . . . I spoke with employ-
ees of both insurance companies by phone prior to
sending the letters on or about October 1, 2012.’’ In her
memorandum of law in opposition to the defendant’s
motion for summary judgment, the plaintiff argued that
‘‘written notice was sent to [the defendant] . . . on or
about October 1, 2012, by Bildade Augustin. . . . The
written notice sent to [the defendant] on October 1,
2012, satisfied the written notice requirement that [the
defendant] requires in the contract. It states the date of
the accident, the parties involved, and that the plaintiff
suffered personal injuries. Whether or not a written
notice was sent to [the defendant] in a timely manner
as well as the sufficiency of said notice is an issue for
the trier of fact.’’
On appeal, the defendant argues that, ‘‘[a]fter years
of attempting to elicit the basis for timely written notice
of an underinsured motorist claim . . . the plaintiff
ultimately claimed that an October 1, 2012 letter quali-
fies as written notice of a claim for underinsured motor-
ist benefits. . . . Even if the October [1], 2012 letter
was sent to [the defendant], which is denied, the letter
does not comply with the policy requirement that [the
defendant] be notified in writing that an underinsured
motorist claim might be pursued.’’ The plaintiff count-
ers in her reply brief that the defendant cannot prevail
on its alternative ground for affirmance because genu-
ine issues of material fact exist, including whether the
defendant received the October 1, 2012 letter.
Whether the defendant received the October 1, 2012
letter is not material to our analysis. Regardless of
whether the October 1, 2012 letter was timely sent, or,
as the defendant argues, sent at all, there is no genuine
issue of material fact that the plaintiff failed to provide
the defendant with written notice of her intention to
pursue an underinsured motorist claim as required by
part (a) of the tolling provision of the insurance policy.
‘‘Although facts may be in dispute, the disputed facts
must be material.’’ (Internal quotation marks omitted.)
Citibank (South Dakota), N.A. v. Manger, 105 Conn.
App. 764, 765–66, 939 A.2d 629 (2008). ‘‘A material fact
is one that would alter the outcome of the case.’’ South-
bridge Associates, LLC v. Garofalo, 53 Conn. App. 11,
14, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d
229 (1999).
Construing the evidence in the light most favorable
to the plaintiff, and assuming that the October 1, 2012
letter was sent to and received by the defendant in
October, 2012, which is within three years of the date
of the incident, the three year limitation period for filing
an underinsured motorist benefits action is not tolled
because, as a matter of law, the letter is insufficient to
satisfy part (a) of the unambiguous tolling provision of
the insurance policy. See Dorchinsky v. Windsor Ins.
Co., 90 Conn. App. 557, 561, 877 A.2d 821 (2005)
(affirming trial court’s granting of summary judgment
on basis that written notice of claim for underinsured
motorist benefits was insufficient to satisfy tolling pro-
vision of insurance policy).
The October 1, 2012 letter, which was sent from John
A. Sodipo from Jacobs & Sodipo, LLC, to the defendant,
states: ‘‘Please be advised that this office has been
retained to represent the interests of [the plaintiff] in
connection with injuries sustained in a motor vehicle
accident which occurred on September 17, 2012 in Hart-
ford, Connecticut. Kindly forward all future correspon-
dence regarding this claim to our office. Our office is
requesting a copy of [the plaintiff’s] insurance policy.
[The plaintiff] is currently seeking medical treatment
for her injuries. I would appreciate you opening the
appropriate bodily injury claim file. We are requesting
that you contact our office upon receipt of this corre-
spondence. Thank you for your cooperation.’’ (Empha-
sis omitted.) Significantly, the letter contains no refer-
ence to a potential claim for underinsured motorist
benefits.
Dorchinsky v. Windsor Ins. Co., supra, 90 Conn. App.
557, involved a provision of an insurance policy that is
similar to the policy provision at issue in the present
case in that the language of the tolling provision in both
polices are in accord with § 38a-336 (g) (1). See id.,
561–63. In Dorchinsky, this court held that the trial
court properly determined that no genuine issue of
material fact existed that the tolling provision of the
insurance policy required a specific reference to a
potential claim for underinsured motorist benefits and
that a notice referencing, in general, only the accident,
property damage, medical bills and damages was not
sufficient. Id., 561. This court rejected the plaintiff’s
claim that, in granting a motion for summary judgment,
the trial court had construed the tolling provision of the
policy ‘‘too strictly by reading it to require the specific
words ‘underinsured’ or ‘uninsured’ in the notice.’’ Id.,
562. The trial court determined that the notice was
‘‘insufficient to comply with the requirements of the
policy,’’ and that ‘‘the notice requirement in the policy
contemplates specific reference to a potential claim for
underinsured motorist benefits and that a notice which
references nothing more than the accident and a claim
for property damage, medical bills and damages in gen-
eral is not sufficient.’’ (Internal quotation marks omit-
ted.) Id., 561. This court reasoned that, ‘‘[t]o toll the
applicable limitation period under § 38a-336 (g) (1), the
insured must provide written notice to the insurer of
any claim which the insured may have for underinsured
motorist benefits. . . . That language plainly and
unambiguously requires the insured to inform its
insurer not merely that it is pursuing a claim, but rather
that it is pursuing a claim for underinsured motorist
benefits. As this court [has noted], [t]he insurance com-
pany . . . needs to be notified . . . in writing that
there’s the possibility that a claim will be brought for
underinsured motorist coverage. . . . We therefore
conclude that the court properly interpreted the require-
ments of § 38a-336 (g).’’ (Emphasis omitted; footnote
omitted; internal quotation marks omitted.) Id., 563,
quoting Tracy v. Allstate Ins. Co., 76 Conn. App. 329,
335, 819 A.2d 859 (2003), aff’d, 268 Conn. 281, 842 A.2d
1123 (2004).
In the present case, no genuine issues of material
fact exist regarding the plaintiff’s failure to satisfy part
(a) of the policy’s tolling provision. Similar to the insuffi-
cient written notice in Dorchinsky, which advised the
defendant only of the accident, retention of counsel,
and the existence of physical injuries; Dorchinsky v.
Windsor Ins. Co., supra, 90 Conn. App. 561; the notifica-
tion here did not contain a specific reference to a poten-
tial claim for underinsured motorist benefits. The Octo-
ber 1, 2012 letter stated only a potential claim, in
general, and did not specifically state that the plaintiff
may have a claim for underinsured motorist benefits.
As such, the October 1, 2012 letter does not satisfy
the plain and unambiguous language of the insurance
policy, which required that, in order to invoke the tolling
provision, the plaintiff inform the defendant explicitly
that she may have a claim for underinsured motorist
benefits.
The plaintiff contends in her reply brief that,
according to Romprey v. Safeco Ins. Co. of America,
310 Conn. 304, 77 A.3d 726 (2013), the defendant cannot
prevail on its alternative ground for affirmance because
the defendant, by addressing only part (a) of the tolling
provision regarding written notice in its motion for sum-
mary judgment, failed to make a showing that no genu-
ine issue of material fact existed as to ‘‘all elements’’
of the tolling provision because it failed to address
part (b) of that provision, which concerned the timely
commencement of suit following exhaustion. The plain-
tiff misreads Romprey, which holds that a defendant
moving for summary judgment pursuant to § 38a-336
(g) (1) has the initial burden of demonstrating the
nonexistence of a genuine issue of material fact ‘‘with
respect to both the three year limitation period and the
statute’s compulsory tolling provision.’’ (Emphasis in
original.) Romprey v. Safeco Ins. Co. of America, supra,
323. The court concluded that, ‘‘[b]ecause the defendant
failed to negate a genuine issue of material fact concern-
ing whether the plaintiffs had met the statutory tolling
provisions of § 38a-336 (g) (1), the plaintiffs had no
obligation to submit documents establishing the exis-
tence of such an issue. . . . Consequently, the trial
court should never have reached the question of the
adequacy of the plaintiffs’ evidence.’’ (Citation omitted;
internal quotation marks omitted.) Id., 326.
In the present case, the defendant satisfied its burden
for summary judgment with respect to both the three
year limitation period, which was undisputedly not met,
and the statute’s tolling provision, as established by
Romprey. The tolling provision of the insurance policy
requires both that the plaintiff (1) provide written notice
to the defendant within three years of the date of the
accident that she may have a claim for underinsured
motorist benefits and (2) commence an action within
180 days from the date of exhaustion. Because both
requirements of the tolling provision must be satisfied,
the failure to meet either requirement renders the tolling
provision inapplicable.5 See, e.g., Dorchinsky v. Wind-
sor Ins. Co., supra, 90 Conn. App. 561 (insufficient writ-
ten notice of claim for underinsured motorist benefits
rendered tolling provision of insurance policy unsatis-
fied). Accordingly, the defendant, in demonstrating that,
as a matter of law, the October 1, 2012 letter failed to
satisfy the requirements of a written notice of a claim
for underinsured motorist benefits under part (a) of
the policy’s tolling provision, was entitled to summary
judgment. For the foregoing reasons, we affirm the
court’s granting of the defendant’s motion for summary
judgment on the alternative ground that no genuine
issues of material fact exist that the plaintiff failed to
bring suit within three years and failed to toll that limita-
tion period in accordance with the insurance policy.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We take judicial notice of the file in the 2016 action. See, e.g., Karp v.
Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972)
(no question exists concerning power of court to take judicial notice of files
in Superior Court).
2
General Statutes § 52-592 (a) provides in relevant part: ‘‘If any action,
commenced within the time limited by law, has failed one or more times
to be tried on its merits because . . . the action has been otherwise avoided
or defeated . . . for any matter of form . . . the plaintiff . . . may com-
mence a new action . . . for the same cause at any time within one year
after the determination of the original action . . . .’’
3
This constitutional ground relates to the court’s decision regarding the
inapplicability of the accidental failure of suit statute. Thus, it is outside
the scope of this opinion.
4
‘‘Dismissal of a claim on alternative grounds is proper when those
grounds present pure questions of law, the record is adequate for review,
and the [opposing party] will suffer no prejudice because he has the opportu-
nity to respond to proposed alternative grounds in the reply brief.’’ Johnson
v. Commissioner of Correction, 168 Conn. App. 294, 308 n.8, 145 A.3d 416,
cert. denied, 323 Conn. 937, 151 A.3d 385 (2016). These requirements are
satisfied. The plaintiff suffered no prejudice, the question presented is a
matter of law and the record, which contains both the policy and the letter
at issue, is adequate for review.
5
The plaintiff’s compliance with the part (b) of the tolling provision is
not challenged by the defendant.