Untimely Suit Dismissed

Judgment in Favor of Insurer Because of Plaintiff's Sloth

Michelle J. Pollard, appealed from the summary judgment rendered by the trial court in favor of the defendant, Geico General Insurance Company, on the plaintiffs complaint seeking to recover underinsured motorist benefits. On appeal, the plaintiff claimed that the court improperly determined that the accidental failure of suit statute, General Statutes § 52-592 (a), did not apply to revive her otherwise time barred action.

In Michelle J. Pollard v. Geico General Insurance Company, No. AC 44560, Court of Appeals of Connecticut (September 6, 2022) the defendant argued that judgment was appropriately rendered and asserted, as an alternative ground contended 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.

FACTS

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 Rivera's policy and that, pursuant to the insurance policy between her and the defendant, the defendant was required to provide her with underinsured motorist benefits but Geico refused.

In April, 2019, the plaintiff sued Geico pursuant to the accidental failure of suit statute. 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.

Geico moved for summary judgment and contended that no genuine issue of material fact existed and that:

the plaintiff 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 form and
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 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.

ANALYSIS

According to Connecticut 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 provisions 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."

It was undisputed that the plaintiff commenced an action for underinsured motorist benefits outside the three year limitation period.

There was 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.  The October 1, 2012 letter, which was sent from John A. Sodipo from Jacobs & Sodipo, LLC, to the defendant, which plaintiff claimed allowed her suit to go forward, yet the letter contained no reference to a potential claim for underinsured motorist benefits.

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. 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. The insurance company needs to be notified in writing that there's the possibility that a claim will be brought for underinsured motorist coverage.

In the present case, the court concluded that no genuine issues of material fact exist regarding the plaintiffs failure to satisfy part (a) of the policy's tolling provision. The October 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.

Geico 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, 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.

Accordingly, Geico 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.

The grant of the motion for summary judgment on the ground that no genuine issues of material fact exist that the plaintiff failed to bring suit within three years and failed to toll that limitation period in accordance with the insurance policy was obvious and necessary.

ZALMA OPINION

There is no excuse to sit on your rights for underinsured motorist coverage for more than six years. Simply stated an insured loses the right to the benefits of an insurance policy by sitting on those rights past the private limitation of action provision of the policy and by failing to comply with the statute that allows you to toll the limitation period.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at and zalma@zalma.com.

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