Opinion
No. LLI-CV-07-5002597S
September 9, 2011
RULING ON DEFENDANT SCOTTSDALE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT (#252)
By motion filed on April 27, 2011, defendant Scottsdale Insurance Company ("Scottsdale") moved for summary judgment on its cross-claim against co-defendant Greater Hartford Transit District ("GHTD"). The cross-claim against GHTD seeks reformation of an excess automobile policy ("the policy") that Scottsdale sold to GHTD in 2005. Scottsdale argues that the policy should be reformed to specifically exclude uninsured and underinsured motorist ("UM") coverage for the period of July 1, 2005, to July 1, 2006. GHTD does not object to the motion. However, the plaintiff, Frank J. Juan, Jr., opposes the motion.
The named plaintiff, Frank J. Juan, Jr., died on March 18, 2008. Anne C. Juan was thereafter appointed as administratrix of his estate. All references to the plaintiff will be in the singular and masculine form.
The court first heard argument on this motion on June 6, 2011. The court has considered Scottsdale's April 27, 2011 motion and memorandum of law in support of its motion for summary judgment (##252, 253), the supporting exhibits and its three reply memoranda (##266, 271 and 279). The court has also considered the plaintiff's May 27, 2011 memorandum of law in opposition to the motion for summary judgment (#258), the exhibits that accompanied that memorandum, his reply memoranda of June 10, 2011 (#267), and August 31, 2011 (#272), the arguments presented at the June 6, 2011 hearing and the additional arguments presented at a subsequent hearing on August 30, 2011. The motion is granted.
I FACTUAL HISTORY
The plaintiff's amended complaint alleges that on July 29, 2005, the plaintiff was operating a bus leased by GHTD to Kelley Transit Company, the plaintiff's employer. At the time of the accident, the plaintiff was stopped at an intersection in Avon, Connecticut, when a truck traveling in the opposite direction crossed the highway, collided with the bus and caused massive injuries to the plaintiff. The owner of the truck that struck the plaintiff was uninsured.
Another defendant in the case, The Lancer Insurance Group, provided primary automobile insurance for Kelley Transit Company. That policy provided, inter alia, uninsured and underinsured motorist coverage. GHTD was covered by a five million dollar supplemental commercial insurance policy issued by Scottsdale. The plaintiff alleges that the Scottsdale policy provided coverage for uninsured and underinsured motorists and he seeks to recover from Scottsdale. Scottsdale claims that the policy did not provide such coverage.
The relevant facts developed to this point, and that appear to be undisputed, are that, at some point prior to July 5, 2011, Colemont Insurance Brokers ("Colemont"), a surplus lines broker with binding authority from Scottsdale, engaged in insurance renewal negotiations with Smith Brothers Insurance, Inc. ("Smith Bros."), the insurance agents for GHTD. On June 29, 2005, Colemont sent a quotation to Smith Bros. that would provide insurance coverage for GHTD. That quotation specifically did not provide for uninsured or underinsured motorist ("UM") coverage, nor did the quotation include a charge for such coverage. Scottsdale represents, and the plaintiff does not dispute, that such coverage would have increased GHTD's premium by about $5800. The parties agree that prior to 2005, GHTD and Scottsdale had done insurance business with each other but GHTD never intended to purchase, nor did it purchase, UM coverage from Scottsdale. The parties also agree that there is no evidence that, prior to 2005, Scottsdale and GHTD ever independently contemplated a policy between them that would provide for UM coverage.
GHTD accepted the June 29, 2005 proposal and on July 5, 2005, Colemont issued a binder to GHTD for the policy. Like the quotation, the binder specifically excluded UM coverage. The accident that gave rise to this case occurred during the period that GHTD was covered by the binder. Less than two weeks after the accident, on August 11, 2005, Scottsdale issued the policy to GHTD, sending it to Smith Bros. as agent for GHTD. The policy varied from the binder in that the policy did not include the specific exclusion for UM coverage. Scottsdale alleges that the omission of the UM exclusion was inadvertent. On October 4, 2005, Scottsdale issued a change endorsement to correct the error. Thus, the Scottsdale policy was allegedly amended by endorsement to exclude coverage for uninsured and underinsured motorist claims.
II PROCEDURAL HISTORY
The plaintiff filed his complaint on September 6, 2007, alleging, in the second count, that Scottsdale is legally responsibility for the plaintiff's losses. Less than one month later, counsel for Scottsdale wrote to plaintiff's counsel and, referring to the claims in the second count, stated: "Effective July 1, 2005, that policy [the policy that was in force at the time of the accident] was amended by endorsement to exclude coverage for uninsured and underinsured motorist claims." The letter then asked the plaintiff to withdraw his claim against Scottsdale or, if he wished to pursue his claim notwithstanding the exclusion, to contact Scottsdale's counsel.
On July 6, 2009, the plaintiff filed a third amended complaint. This complaint alleged not only two counts of breach of contract against Scottsdale but also, in the third count, fraud, claiming that it was "untrue" that the UM exclusion was incorporated by reference into the Scottsdale policy on or before July 29, 2005.
The third amended complaint also alleged, in count four, a breach of the implied covenant of good faith and fair dealing, as well as a fifth count alleging a violation of the Connecticut Unfair Trade Practices Act. Both of the latter counts were stricken on November 24, 2009 (Pickard, J.) 48 Conn. L. Rptr. 789]. The plaintiff did not, thereafter, replead the stricken counts.
On March 22, 2010, Scottsdale moved to cite in defendant GHTD and sought permission to amend its answer raising, inter alia, special defenses, a counterclaim for reformation as to the plaintiff and a cross-claim for reformation as to GHTD. The first special defense alleges that there is no coverage for the plaintiff in view of endorsement number XLS-1423 (7/96) that specifically excludes UM coverage. The second special defense asserts that the binder, which specifically excluded UM coverage, was in effect at the time of the accident. On July 16, 2010, the latter motion was granted and on August 27, 2010, Scottsdale filed the amended answer with special defenses, the counterclaim and the cross-claim.
On September 22, 2010, GHTD answered the cross-claim, leaving Scottsdale to its proof in all material respects. Finally, on February 15, 2011, the plaintiff filed a revised reply to Scottsdale's amended special defenses and its counterclaim. The plaintiff raised a special defense of laches, alleging that Scottsdale did not admit, until August 31, 2009, that it issued the change endorsement after the accident. The plaintiff also alleged, in another special defense, that reformation is unavailable to Scottsdale pursuant to the doctrine of unclean hands.
On April 22, 2010, Scottsdale moved for summary judgment as to all counts. The court denied that motion on August 19, 2010. Juan v. Lancer Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002597 (August 19, 2010, Roche, J.). The ruling rejected a theory raised by Scottsdale that, until the court's ruling, had not been addressed by any controlling or persuasive authority, i.e., whether an insurer can reduce coverage retroactively after an accident has occurred. The court agreed that the policy was the controlling legal document with regard to the accident because it was the only evidence of coverage in force at the time of the accident. The policy issued on August 11, 2005, due to the omission of the UM exclusion, appears to have obviated the exclusion that appeared in the binder. See note 4, supra.
In his ruling, Judge Roche also denied a plaintiff's motion for partial summary judgment that had been filed on March 10, 2010.
Since the binder excluding UM coverage was in effect at the time of the accident, and the policy omitting the exclusion was issued after the accident, one would normally conclude that Scottsdale did not attempt to reduce coverage retroactively. However, the binder itself provides that if there is an inconsistency between the binder and the policy to be issued thereafter, "the terms and provisions of [the policy] shall prevail." Thus, when the post-accident policy omitted UM coverage, an inconsistency between the binder and the policy came into existence. The quoted language from the binder then served to elevate the terms of the policy above the terms of the binder, thus creating post-accident coverage that did not exist until the policy was issued. As will be discussed, infra, Scottsdale takes the position that the variance between the binder and the policy was an error that it corrected with the amendment of October 5, 2005. The effect of such a correction, if allowed, would be to reduce coverage retroactively.
Judge Roche then turned to the question of whether Scottsdale had made the necessary showing that would justify granting its motion for summary judgment on its cross-claim for reformation under any of the following three theories: 1) the conflict between the binder and the policy was the product of a mutual mistake; 2) it was the product of a unilateral mistake coupled with actual fraud, constructive fraud, or inequitable conduct on the part of the other; or 3) reformation was needed to correct a scrivener's error. Judge Roche concluded that the plaintiff appeared to concede that the failure to exclude UM coverage in the policy was a mistake. However, the plaintiff argued that the equitable remedy of reformation was not available to Scottsdale due to the doctrines of laches and unclean hands. Judge Roche referred to the plaintiff's claims relative to laches and concluded that the plaintiff "raised a genuine issue of material fact as to whether the doctrine of laches applies to bar the defendant from succeeding on its reformation claims." Judge Roche noted that if reformation is permitted, the inconsistencies between the binder and policy, regarding the exclusion of UM coverage, would disappear.
III THE POSITIONS OF THE PARTIES A Scottsdale's Position
In its memorandum in support of its motion for summary judgment, Scottsdale takes the position that neither it nor GHTD ever negotiated for UM coverage and that they both expressly intended to exclude UM coverage. GHTD does not disagree with either of the foregoing propositions. Scottsdale argues that if it had intended to sell UM coverage to GHTD, Scottsdale would have charged a higher premium, in the amount of $5,800, but that it did not do so. Again, GHTD does not dispute this claim. Based on the foregoing facts, as well as additional evidence gleaned from deposition transcripts and documentary evidence, Scottsdale argues that reformation is appropriate to correct a mutual mistake. Scottsdale argues that reformation, if permitted, would restate the intended terms of the agreement, thus correcting a situation in which the written agreement (the policy) is at variance with the intent of the parties.
Alternatively, Scottsdale argues that reformation is appropriate on the basis that it will serve to correct a scrivener's error. According to Scottsdale, since all of the evidence shows that the contracting parties never intended the policy to provide UM coverage, the omission of the UM exclusion is a scrivener's error to be corrected through reformation.
Scottsdale filed three additional memoranda in connection with its motion for summary judgment. In the first supplemental memorandum (#266), Scottsdale argues that the plaintiff lacks standing to oppose reformation because he was not a party to the contract to be reformed. Second, Scottsdale argues that, even if the plaintiff has standing to oppose the motion, he has failed to produce any evidence that will serve to frustrate the motion for summary judgment. Scottsdale seeks to avoid the effect of the prior ruling of Judge Roche, the existence of which implicates the law of the case doctrine, arguing that the instant motion for summary judgment is raised in the context of a cross-claim against GHTD and is unopposed by GHTD. Scottsdale also disagrees with the plaintiff's reliance on the law regarding rescission because Scottsdale is seeking to reform, and not rescind, the policy.
In its second supplemental memorandum (#271), Scottsdale expands upon its argument that the plaintiff lacks standing to challenge either the motion for summary judgment or Scottsdale's effort to reform the policy. Scottsdale argues that since neither Scottsdale nor GHTD intended to contract for UM coverage, then neither party intended to confer benefits on any other party. Therefore, Scottsdale argues, the plaintiff cannot be a third-party beneficiary with standing to challenge the instant motion or the cross-claim.
In its final memorandum (#279), Scottsdale opposes the plaintiff's contention that he has identified relevant authority on the issue of laches. Specifically, Scottsdale argues that there is no basis for concluding that Scottsdale unreasonably delayed seeking reformation. Second, Scottsdale argues that the plaintiff's cited authority, when compared to the facts of this case, does not stand for the proposition that he has established "prejudice" if the passage of time impairs the memory of a necessary witness.
B The Plaintiff's Position
The plaintiff opposes the motion for summary judgment, asserting that there are multiple reasons why summary judgment should not be granted. First, the plaintiff relies on Judge Roche's August 19, 2010 opinion that genuine issues of material fact exist on the question of whether the plaintiff can succeed with his special defense of laches. That opinion, the plaintiff contends, constitutes the law of the case, mandating the rejection of Scottsdale's motion for summary judgment.
The plaintiff also relies on the doctrine of contra proferentum for the proposition that the risk of a mistake must be allocated to an insurance company when it is the one that makes the mistake. Finally, the plaintiff claims that Scottsdale engaged in willful misconduct during the litigation, thus permitting the plaintiff to invoke the special defense of unclean hands.
IV DISCUSSION A Standard of Review
"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 such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . In order for a motion for summary judgment to be granted properly, the moving party must demonstrate that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . [A] summary disposition [must] . . . be on evidence which a jury would not be at liberty to disbelieve and . . . where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the [summary judgment]." (Citation omitted; internal quotation marks omitted.) Farrell v. Twenty-First Century Ins. Co., 301 Conn. 657, 661-62, 21 A.3d 816 (2011).
"[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn.App. 591, 596, 955 A.2d 645, cert. denied. 289 Conn. 947, 959 A.2d 1011 (2008). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998).
"The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Arnone v. Connecticut Light Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005). "A material fact is a fact which will make a difference in the result of the case . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557-58, 979 A.2d 1055, cert. denied, CT Page 19204 294 Conn. 913, 983 A.2d 274 (2009).
B Analysis
In denying the previous motion for summary judgment, Judge Roche concluded that the binder provides that the policy controls in the event of an inconsistency between the binder and the policy. Thus, the UM coverage provided in the policy must be found to have existed at the time the binder was issued, regardless of the fact that such coverage was specifically excluded in the binder. Judge Roche's conclusion is the law of the case and there is no basis on which to depart from that conclusion. See Brown Brown, Inc. v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008).
Since the conflict between the binder and the policy compels the conclusion that UM coverage existed at the time of the accident, the plaintiff is, indeed, an "insured" for purposes of giving him standing to oppose the motion for summary judgment, since any individual who is injured by an uninsured or underinsured motorist is an "insured" under a policy that provides UM coverage. See Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 768-69, 594 A.2d 468 (1991). Thus, the plaintiff does have standing to oppose Scottsdale's motion for summary judgment.
It is now necessary to turn to Scottsdale's claim for summary judgment with regard to the question of whether its policy was effectively amended on October 4, 2005, or, alternatively, whether the policy should be reformed so that it conforms to the course of dealing that predated the issuance of the July 5, 2005 binder, the binder itself and the intent of the parties. Turning first to the question of whether Scottsdale effectively amended its policy on October 4, 2005, this court notes that Judge Roche has already found that there is no authority for the proposition that an insurance company can issue a post-accident endorsement that serves to reduce coverage. It is true that there is no evidence that GHTD intended to purchase, or did purchase, UM coverage and so Scottsdale argues that the amendment merely served to conform the policy to what GHTD intended to purchase. Nonetheless, absent controlling authority to the contrary, Judge Roche's decision on this issue is governed by the law of the case doctrine and this court will not disturb the conclusion that he has reached. Similarly, Judge Roche concluded that even though the policy, as it existed prior to the amendment, did not expressly provide UM coverage, the absence of an express exclusion of UM coverage means that such coverage was provided. Again, the law of the case doctrine precludes this court from reaching any different conclusion.
The next question presented is whether reformation is available pursuant to Scottsdale's motion for summary judgment. Here, the evidence is unequivocal and conclusive in favor of reformation. All of the evidence presented makes clear that GHTD and Scottsdale never negotiated for UM coverage; GHTD and Scottsdale never had a policy that included UM coverage prior to the issuance of the August 11, 2005 policy; GHTD did not, even in 2005, pay the premium that would have been owed if it had purchased the additional UM coverage; and GHTD, Scottsdale, and even the plaintiff are in agreement with regard to all of the foregoing facts.
The plaintiff speculates that perhaps Scottsdale included UM coverage in the policy because it wanted to provide an unpaid benefit to GHTD as some form of promotional offer. First, the plaintiff's theory is no more than rank speculation that is unsupported by any evidence at all, except for the fact that there is no UM exclusion in the policy. Second, the plaintiff's theory is wholly illogical. In order for the inclusion of UM coverage to be a promotional offer by Scottsdale, there would have to be clear evidence that Scottsdale knew it was including UM coverage and there is no such evidence that it did. More importantly, it would have been necessary for Scottsdale to communicate the fact of the benefit to GHTD in order for GHTD to be aware that it was receiving a benefit for which it did not pay. In the absence of such communication — and there is no evidence of any such communication — the so-called promotional offer could not possibly have any promotional effect.
The plaintiff's theory is based on speculation, not evidence, and the speculation, itself, is illogical. A jury would have to rely on sheer speculation if it were to conclude that the inclusion of UM coverage in the policy was a deliberate, promotional offer. It is axiomatic that, although a jury can draw logical deductions and make reasonable inferences from proven facts, "it may not resort to mere conjecture and speculation." (Internal quotation marks omitted.) Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 253, 943 A.2d 430 (2007). "While it is true that, in considering a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party, without competent evidence to support the claims, however, the [plaintiff has] not raised a genuine issue of material fact . . . To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 496-97, 21 A.3d 889 (2011).
Judge Roche concluded that the inclusion of UM coverage in the policy was a mistake. Thus, not only does the law of the case require the same conclusion, but the plaintiff has not brought forward any new evidence that would permit a different conclusion. As such, there are no genuine issues of material fact on the issue of whether the inclusion of UM coverage in the policy was a mistake.
In view of the fact that the inclusion of UM coverage in the policy was a mistake, the court must now determine whether summary judgment is appropriate on the issue of reformation. As Judge Roche concluded, reformation is permissible to correct a "mutual mistake, or [a] mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981). Reformation is also permissible to correct a scrivener's error made while memorializing the agreement. RAL Management, Inc. v. Valley View Associates, 102 Conn.App. 678, 682-83, 926 A.2d 704 (2007). Reformation must be established by evidence that is "clear, substantial and convincing." (Internal quotation marks omitted.) Lopinto v. Haines, supra, 534.
The parties agreed that, even if this matter were to go forward beyond the summary judgment stage, it might be appropriate to try the issue of reformation to the court, since if reformation were to be found appropriate after a trial on this equitable issue, no further action would be necessary. Our Supreme Court has said that "[c]auses of action that are essentially cognizable at law are triable to a jury, while actions that are essentially equitable are not . . . [But] [t]his distinction is easier to state than to apply, especially when legal and equitable issues are combined in a single action." Motor Vehicle Manufacturers Assn. of the United States v. O'Neill, 203 Conn. 63, 76, 523 A.2d 486 (1987). The analytical challenge to which the latter case refers is well reflected in Barber v. Baldwin, 135 Conn. 558, 563-65, 67 A.2d 1 (1949), a case that was tried to a jury for three days before the court concluded that it should take the case from the jury to decide the equitable issues. Here, as in Barber, Scottsdale's cross-claim for reformation sounds in equity, and if Scottsdale were to prevail in its cross-claim, the plaintiff will necessarily fail in his claim. However, if Scottsdale does not prevail, the plaintiff's claim could then be tried to a jury. For the foregoing reasons, one might conclude that the equitable issue should be tried first. See Bisnovich v. British American Assurance Co., 100 Conn. 240, 248-50, 123 A. 339 (1924). However, Scottsdale explained at oral argument that it has no additional evidence that it could offer at a trial to the court on the question of reformation. Similarly, the plaintiff did not identify any evidence that he would offer at such a trial to the court, with one exception. The plaintiff indicated that he would call, at trial, Arthur Handman, a former Scottsdale employee who now lives in New Hampshire. On the other hand, the plaintiff did not explain how he would compel an out-of-state witness to testify in Connecticut, did not explain why he has not deposed Handman, even though he has known about Handman for at least three years and, most important, did not identify any evidence that Handman would provide on any issue before the court.
Here, the evidence, without question, shows that Scottsdale did not intend to sell, and GHTD did not intend to purchase, UM coverage. The documentary evidence and the deposition testimony of present and former Smith Bros. and GHTD employees admits of no other conclusion. Thus, the two parties to the contract made a mutual mistake and reformation is appropriate. There is no admissible evidence that rebuts the foregoing conclusion.
The plaintiff invokes the doctrine of contra proferentum for the proposition that Scottsdale should bear the risk of its mistake. However, this doctrine applies, not in the instant situation, but in one in which there are ambiguities that cannot be resolved by examining the parties' intentions. In such a situation, ambiguities are resolved against an insurer. Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 788-89, 900 A.2d 18 (2006). Here, there is no suggestion that the terms of the policy are ambiguous, nor is it impossible to ascertain the intent of the parties to the contract. It is beyond dispute that neither party to the contract intended that the policy include UM coverage.
In addition, or alternatively, reformation is appropriate because Scottsdale mistakenly failed to exclude UM coverage from the policy and Smith Bros., the agent for GHTD, engaged in inequitable conduct. Smith Bros.' employee Samantha Thompson testified that she does not recall, one way or the other, if she noticed that the policy failed to exclude UM coverage. However, she testified further that, even if she did notice it, she would not have brought the omission to anyone's attention since it was an error that would have benefitted her client but which would not have increased its premium. She testified that she was trained to review policies in such a manner. Regardless of whether Thompson was testifying to an industry standard, and one would hope that such a practice does not conform to an industry standard, the latter approach (obtaining a benefit without paying for it) is, in this context, inequitable. Thus, reformation is warranted under the second approach identified in Lopinto.
Finally, the evidence also warrants a finding that the failure to exclude UM coverage was an error. The plaintiff does not dispute this conclusion. Therefore, the policy can, and should, be reformed to correct a scrivener's error.
The plaintiff opposes reformation based on his special defenses of laches and unclean hands. To prove laches, the plaintiff must establish two elements: "First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party]." (Internal quotation marks omitted.) Traggis v. Shawmut Bank of Connecticut, N.A., 72 Conn.App. 251, 262, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002).
Judge Roche made reference to the plaintiff's claim that laches bars reformation. The plaintiff claims, first, that Scottsdale delayed seeking reformation for almost five years. The plaintiff contends that Scottsdale should have sought reformation in 2007, not March of 2010. The plaintiff argues that Scottsdale has not provided an excuse for its delay, noting that Scottsdale must have known of its error at least since October 4, 2005, the day it amended the policy. The plaintiff also argues that he was prejudiced in that he had to attend depositions and court appearances, as well as argue motions, that would have been avoidable if Scottsdale had sought reformation "in a timely manner." In the latter sense, the plaintiff collapses the two requirements into one; he argues that delay equals prejudice. Finally, the plaintiff makes the alternative claim that insurance companies must bear the risk of their mistakes.
Therefore, under his theory, if it is found that any delay was excusable, then one might conclude that the claim of prejudice must disappear.
It is at this point that the court must determine whether it is appropriate to follow Judge Roche's opinion regarding the plaintiff's special defenses or whether the law of the case doctrine permits a different result. Judge Roche referred to the foregoing claims by the plaintiff and concluded that the plaintiff "raised a genuine issue of material fact as to whether the doctrine of laches applies to bar the defendant [Scottsdale] from succeeding on its reformation claims."
Since Judge Roche's opinion was issued, GHTD has joined the case and does not oppose the claim for reformation. Scottsdale, in the submissions associated with the instant motion, as well as during oral argument, explained why it sought reformation when it did. Scottsdale was not required, as the plaintiff suggests, to seek reformation as of October 4, 2005. At that time, Scottsdale was seeking to amend the policy by endorsement to correct a mistake. At that point, the plaintiff had not brought suit against Scottsdale. The amendment alone, Scottsdale concluded, was sufficient to correct the error. It is beyond peradventure that reformation was in no way necessary as of October 4, 2005.
When the plaintiff brought his action in 2007, his claim against Scottsdale sounded in breach of contract. Within one month of that claim being filed, Scottsdale pointed out to the plaintiff that it had amended its policy, by endorsement, to exclude UM coverage. Thus, Scottsdale was arguing that the amendment served as a complete bar to the plaintiff's claim. That theory, if successful, would have obviated the need for reformation. Therefore, there is no basis for faulting Scottsdale for not seeking reformation in 2007. It was only after the plaintiff filed his third amended complaint in July 2009 that he focused on the amendment to the policy as a basis for his cause of action. It was only then that Scottsdale faced a need to seek reformation, which it did in March 2010.
The plaintiff's claims of inexcusable delay founder on their misapprehension of when reformation was necessary. Based upon the claims and theories raised against it, Scottsdale had no need to seek reformation prior to July 2009. The nine months that passed between the filing of the plaintiff's third amended complaint and Scottsdale's claim for reformation cannot be characterized as "inexcusable delay." Scottsdale has thoroughly explained the logic behind the manner in which it proceeded and the plaintiff has not shown that Scottsdale engaged in any "inexcusable delay."
Finally, the plaintiff has failed to show any meaningful prejudice. Scottsdale argues that, even if the plaintiff wished to establish his claim of breach of contract, as originally articulated in his initial complaint of 2007, it would have been necessary for the plaintiff to have pursued the same discovery with regard to the same Smith Bros., GHTD and Scottsdale employees that he pursued in an effort to prevent reformation. Not only is Scottsdale's argument on this point compelling, but the plaintiff has offered no meaningful rebuttal to Scottsdale's argument. Indeed, the record reflects that all meaningful deposition testimony relative to the reformation issues was the work of Scottsdale and not the plaintiff. It was Scottsdale that took the depositions of Kimberly Dunham of GHTD and Jamie Pylkowski of Smith Bros., even though the plaintiff indicated in 2008 that he would take the initiative with regard to those depositions. The burden of proof lies with the plaintiff to establish inexcusable delay and prejudice. The court is forced to conclude that he failed to meet that burden.
The record reflects, further, that it was Scottsdale that took the deposition of Smith Bros.' former employee, Samantha Thompson.
The parties have paid scant attention to the plaintiff's special defense of "unclean hands," but the court notes that the plaintiff has completely failed to offer evidence of behavior by Scottsdale that constitutes wilful misconduct, a showing that must be made if the plaintiff is to prevail with regard to his special defense. Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005). The plaintiff learned in October 2005, that the policy had been amended by endorsement, but failed to take the depositions that, as early as the fall of 2005, would have revealed the circumstances surrounding the endorsement. Although the plaintiff is critical of Scottsdale's discovery performance, the plaintiff wholly disregards his own lack of diligence with regard to exploring the nature of the endorsement.
V CONCLUSION
The court finds that, even when viewing the evidence in a light most favorable to the plaintiff, there are no genuine issues of material fact that preclude the entry of summary judgment. The court concludes that Scottsdale is entitled to judgment as a matter of law. The motion for summary judgment in favor of Scottsdale is granted.
So ordered.