Opinion
No. CV07 4008234-S
December 8, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #117
At issue is the plaintiff's motion for summary judgment #117. For the foregoing reasons, the plaintiff's motion is denied.
I BACKGROUND
By complaint dated July 24, 2007, the plaintiff, Merrimack Mutual Fire Insurance Company (Merrimack), brought suit against the defendants, Maureen Selby and Evgenia DiMatteo, seeking a declaratory judgment pursuant to Practice Book § 17-54, "decreeing the rights and obligations of the parties . . . including a declaration that Merrimack Mutual has no obligation to defend and indemnify Maureen Selby for claims arising from the Complaint filed by Evgenia DiMatteo . . ."
The defendant Selby, formerly and/or also known as Maureen Avery, Maureen Ahern and/or Maureen Ahearn, has not entered an appearance in this matter.
In its complaint, Merrimack alleges the following relevant facts. "Maureen Avery was the named insured of homeowner's policy HP 216-00-95 issued by Merrimack Mutual for the period of September 20, 2004 to September 20, 2005 . . . In August 2006, Evgenia DiMatteo filed a one-count Complaint against Maureen Selby . . . [involving] an alleged slip and fall on a stairway by Evgenia DiMatteo on August 14, 2005 at the home of Maureen Selby, at 52 Woodland Road, Madison, Connecticut, resulting in injuries to Evgenia DiMatteo. Evgenia DiMatteo alleges that she was walking on a stairway located within 52 Woodland Road . . . when the carpet on the stairs moved, causing her to slip and fall down. Evgenia DiMatteo alleges negligence and carelessness against Maureen Selby in the condition and maintenance of the stairwell. The Merrimack Mutual policy provides the following conditions of coverage: "Give written notice to us or our agent as soon as is practical," providing certain basic information. The policy also requires the insured to "[p]romptly forward to us every notice, demand, summons or other process relating to the accident or `occurrence.'" Merrimack Mutual was not notified of the alleged occurrence on August 15, 2005 until February 2007, which delay constitutes failure by Maureen Selby to comply with the policy "Duties After Loss."
Merrimack further alleges that "[a]s a result of Maureen Selby's failure, Merrimack Mutual has been materially prejudiced in that it had no opportunity to make a timely and adequate investigation of all the circumstances. As a further result of Maureen Selby's failure, a Motion for Default for Failure to Appear was filed and granted by the Court on October 6, 2006, which entry prejudices and/or prejudiced the ability to file responsive pleadings and defend the case. Accordingly, Merrimack Mutual has no obligation to defend or indemnify Maureen Selby for the claims alleged in the plaintiff's Complaint."
On December 6, 2007, DiMatteo filed her "answer and revised special defenses." DiMatteo's first special states that the "plaintiff's claims for declaratory judgment are barred by the Doctrine of Estoppel . . ." DiMatteo's second special defense states that the "plaintiff's claims for declaratory judgment are barred by the Doctrine of Unclean Hands . . ." DiMatteo's third and final special defense states that the "plaintiff's claims for declaratory judgment are barred by the Doctrine of Waiver . . ."
On August 10, 2009, Merrimack filed a motion for summary judgment and a memorandum in support thereof. DiMatteo filed an objection to Merrimack's motion on August 31, 2009. Merrimack filed a reply to DiMatteo's objection on October 6, 2009. The matter was heard at short calendar on October 19, 2009.
II DISCUSSION
"The court may address the merits of a declaratory judgment action upon a motion for summary judgment." Sentry Claims Service v. Botwick, Superior Court, judicial district of New Haven, Docket No. CV03 0477960 (June 8, 2004, Skolnick, J.) [ 37 Conn. L. Rptr. 251]. 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, entitle him to 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only 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 verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
Merrimack now moves "for the entry of summary judgment on its declaratory judgment action, on the grounds that there is no genuine issue of material fact that the plaintiff does not have a duty to provide insurance coverage to Maureen Selby in the underlying civil action." In its motion for summary judgment, Merrimack expands on the relevant facts, arguing that Selby did not notify it of DiMatteo's fall after Selby became aware of it. "Merrimack's first notice of the claim [was] approximately eighteen months after the incident allegedly occurred . . . When Merrimack was first notified of the incident in question, the house in which the alleged fall had occurred had been sold to a third party, and Merrimack had no ability to investigate the circumstances surrounding the incident." Merrimack states that currently the listing agent for the subject home has an impaired "ability to recall details regarding the stairway" due to a head injury. Further, Merrimack believes the subject home to have been sold and undergone significant renovations, including the removal of the staircase.
Merrimack argues in its motion that because of Selby's delayed notice of claim, it has been "unable to obtain any information regarding the incident, the alleged defect, or other possible contributing causes of the alleged injury," which materially prejudices it in its defense of DiMatteo's action. Merrimack further argues that "Selby's failure to forward notice of the claim to Merrimack until after she had been defaulted in the underlying action deprived Merrimack of the ability to fully defend this action" because it "was inhibited in its ability to file responsive pleadings on behalf of Ms. Selby and properly defend the underlying action." (Emphasis in original.) Thus, Merrimack argues it has no duty to defend or indemnify Selby because of the prejudice it has suffered in the defense of the underlying action, and as such it is "entitled to summary judgment as a matter of law in this coverage action."
In support of its motion, Merrimack submits: Exhibit A, certified excerpts of the deposition of Maureen Ahern; Exhibit B, notarized affidavit of Merrimack claims examiner Mark O'Malley; Exhibit C, notarized affidavit of independent insurance adjuster Anthony Squeglia; Exhibit D, notarized deposition excerpts of Patricia Godiksen; Exhibit E, a letter from Merrimack to Maureen Avery regarding denial of coverage; Exhibit F, Merrimack Mutual Insurance Company homeowner's insurance policy for policy number HP 216-00-95; Exhibit G, unauthenticated deposition transcript excerpts of Catharina Lynch; Exhibit H, a copy of a Superior Court case.
Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." The Appellate Court has held that § 17-45 "contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). Moreover, "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, supra, 89 Conn.App. 679. Uncertified documents may be "admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists . . ." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
In the present case, the insurance policy documentation, related correspondence and deposition transcript excerpts of Catharina Lynch, submitted by Merrimack (Exhibits E, F, G), are without certification or authentication, and, as such, are hearsay and lack "the necessary indicia of reliability required for a summary judgment determination." Torrenti v. Kancir, Superior Court, judicial district of New Haven, Docket No. CV 07 5012366 (December 19, 2007, Holden, J.). DiMatteo, however, has not objected to any evidence presented; thus, "any objection is deemed waived and all documents are admissible" within the court's discretion. Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. 03 0476708 (June 25, 2008, Cosgrove, J.).
In her objection to Merrimack's motion, DiMatteo proffers two arguments that a genuine issue of material fact exists sufficient to deny summary judgment here. "First, the homeowner, Maureen Selby, provided notice to Merrimack as soon as was practicable, given the circumstances. Second, even if notice was late, Merrimack was not materially prejudiced by it." Specifically, DiMatteo argues that "Selby did not know about a potential claim in August 2005. Although Selby knew that someone had fallen at her home in August 2005, she had no knowledge that anyone was injured . . . Selby learned of DiMatteo's claim when she found out about the lawsuit, which was after she sold the premises in December 2005 . . . DiMatteo's Complaint was filed with the court on or about September 5, 2006. Even if Merrimack had received notice shortly thereafter, it would not have been able to investigate the stairs because the premises had already been sold in December 2005." (Emphasis in original.) DiMatteo adds that Selby moved multiple times after the incident and was not residing at the subject property when she learned of her involvement in the underlying lawsuit. DiMatteo further argues that even if notice to Merrimack was late, it was not materially prejudiced, because Merrimack need not investigate the property in consideration of what Selby has admitted under oath: "1) Selby did not repair the handrail when she knew that it had fallen off of the wall; 2) Selby did not erect barriers or warning signs even though there was no handrail; and 3) Selby did not prevent individuals from using the stairs."
In support of her objection, DiMatteo submits: Exhibit A; the summons and complaint in the underlying action of DiMatteo v. Selby; Exhibit B, certified excerpts of the deposition of Maureen Ahern; Exhibit C, judicial branch case printout for DiMatteo v. Selby; Exhibit D, an order of the court in DiMatteo v. Selby; Exhibit E, Merrimack Mutual Insurance Company homeowner's insurance policy for policy number HP 216-00-95; Exhibit F, certified transcript of deposition of Catharina Lynch.
Similar to Merrimack's submitted evidence, several of DiMatteo's exhibits, including the insurance policy documentation (Exhibit E), are without certification or authentication, and, as such, are hearsay and lack "the necessary indicia of reliability required for a summary judgment determination." Torrenti v. Kancir, supra, Superior Court, Docket No. CV 07 5012366. Merrimack, however, has not objected to any evidence presented; thus, "any objection is deemed waived and all documents are admissible" within the court's discretion. Hall v. Gallo, supra, Superior Court, Docket No. 03 0476708.
In its reply to DiMatteo's objection, Merrimack argues that DiMatteo does not have standing to challenge the motion for summary judgment because DiMatteo is not the named insured or a third-party beneficiary. Merrimack further argues that "DiMatteo's self-serving allegations have no factual basis or support" where the evidence shows that Selby failed to provide notice of the incident "for at least five months after being served." Merrimack otherwise generally argues that it was deprived of the ability to investigate the conditions surrounding the incident at that time, which now hampers its ability to defend the claim.
Selby's homeowner's policy with Merrimack, policy number HP 216-00-95, issued for the period of September 20, 2004 to September 20, 2005, provides for the following conditions of coverage: "Section II — Conditions. 3. Duties After Loss. In case of an accident or `occurrence,' the `insured' will perform the following duties that apply. You will help us by seeing that these duties are performed: a. Give written notice to us or our agent as soon as is practical, which sets forth: (1) The identity of the policy and `insured'; (2) Reasonably available information on the time, place and circumstances of the accident or `occurrence'; and (3) Names and addresses of any claimants and witnesses; b. Promptly forward to us every notice, demand, summons or other process relating to the accident or `occurrence'; . . ." (Merrimack's Ex. F, page 16; DiMatteo's Ex. E, page 16.)
"When determining the duty of an insurance company to defend an insured, [t]he court takes the facts as alleged in the underlying complaint and measures them against the language of the policy. If there is no coverage, it is proper to grant summary judgment." (Internal quotation marks omitted.) Sentry Claims Service v. Botwick, supra, Superior Court, Docket No. CV 03 0477960. "[A]bsent a showing of material prejudice, an insured's failure to give timely notice does not discharge the insurer's continuing duty to provide insurance coverage . . . [W]e are persuaded that the existence or nonexistence of prejudice from delayed notice should be determined on a factual basis, the burden of establishing lack of prejudice . . . borne by the insured." Aetna Casualty Surety Co. v. Murphy, 206 Conn. 409, 418-19, 538 A.2d 219 (1988); Taricani v. Nationwide Mut. Ins. Co., 77 Conn.App. 139, 140, 822 A.2d 341 (2003).
Aetna Casualty Surety Co. v. Murphy is the controlling authority on the issue of late notice. In Aetna Casualty Surety Co., the Supreme Court examined the trial court's decision to grant summary judgment in a case where an insured delayed two years in giving notice of an insurable claim to the insurer. Aetna Casualty Surety Co. v. Murphy, supra, 206 Conn. 411. The insurer argued that such a delay, in light of insurance policy provisions requiring notice be given as soon as practicable, was unduly prejudicial. Id. The Supreme Court noted that "[i]n numerous cases, this court has held that, especially in the absence of conduct that is wilful, a contract party may, despite his own departure from the specifications of his contract, enforce the obligations of the other party with whom he has dealt in good faith . . . This case law demonstrates that, in appropriate circumstances, a contracting party, despite his own default, may be entitled to relief from the rigorous enforcement of contract provisions that would otherwise amount to a forfeiture." (Citations omitted; internal quotation marks omitted.) Id., 413-14.
"In the setting of this case, three considerations are central. First, the contractual provisions presently at issue are contained in an insurance policy that is a contract of adhesion, the parties to this form contract having no occasion to bargain about the consequences of delayed notice. Second, enforcement of these notice provisions will operate as a forfeiture because the insured will lose his insurance coverage without regard to his dutiful payment of insurance premiums. Third, the insurer's legitimate purpose of guaranteeing itself a fair opportunity to investigate accidents and claims can be protected without the forfeiture that results from presuming, irrebuttably, that late notice invariably prejudices the insurer." (Internal quotation marks omitted.) Id., 415-16.
"The operative effect of non-compliance with the notice provisions is a forfeiture of the interests of the insured that is, in all likelihood, disproportionate . . . In determining whether an insured is entitled to relief from such a disproportionate forfeiture, loss of coverage must be weighed against an insurer's legitimate interest in protection from stale claims . . . If this legitimate purpose can be protected by something short of automatic enforcement of the notice provisions, then their strict enforcement is unwarranted." (Citations omitted; internal quotation marks omitted.) Id., 417.
"In our judgment, a proper balance between the interests of the insurer and the insured requires a factual inquiry into whether, in the circumstances of a particular case, an insurer has been prejudiced by its insured's delay in giving notice of an event triggering insurance coverage. If it can be showed that the insurer suffered no material prejudice from the delay, the nonoccurrence of the condition of timely notice may be excused because it is not, in Restatement terms, a material part of the agreed exchange . ." (Emphasis added; internal quotation marks omitted.) Id., 417-18.
"In light of existing related precedents in this jurisdiction, although we are persuaded that the existence or nonexistence of prejudice from delayed notice should be determined on a factual basis, the burden of establishing lack of prejudice from delayed notice must be borne by the insured . . . The determination of what is fair, as a factual matter, must however depend upon a proper showing by the complainant who seeks this extraordinary relief." (Citation omitted; internal quotation marks omitted.) Id., 419-20. The Aetna court ultimately upheld the trial court's grant of summary judgment "because [the insured's] affidavit opposing summary judgment contained no factual basis for a claim that [the insured] had not been materially prejudiced by [the insured's] delay." Id., 420-21.
As an initial matter, Merrimack's argument, initially made in its reply brief, that DiMatteo does not have standing to challenge Merrimack's motion for summary judgment because she is not a named insured on the policy or a third-party beneficiary, fails. Merrimack states that "[a]lthough the issue has not been decided by the Appellate Courts of the State of Connecticut, the Appellate Court has indicated in dicta that the plaintiff in an underlying case may not have standing to challenge an insurance company's decision with respect to defense and indemnity. See Hamilton v. United Services Automobile Assn., 115 Conn.App. 774, 777 n. 5 (2009) . . ." The dicta cited by Merrimack is distinguishable from the situation at hand, where the party seeking a declaratory judgment in Hamilton was the plaintiff in both the underlying matter and the case on appeal where she sought a judicial declaration that the defendant had a duty to defend, as opposed to the present matter, where DiMatteo is a named defendant in Merrimack's action seeking a declaratory judgment that it does not have a duty to defend Selby in the underlying action.
"The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter . . . A court has no jurisdiction over persons who have not been made parties to the action before it." Rocque v. DeMilo Co., 85 Conn.App. 512, 524, 857 A.2d 976 (2004). "[I]t is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim." (Internal quotation marks omitted.) Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 476, 863 A.2d 645 (2005). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest . . . in the subject matter of the controversy." (Internal quotation marks omitted.) Chila v. Stuart, 81 Conn.App. 458, 464, 840 A.2d 1176, cert. denied, 268 Conn. 917, 847 A.2d 311 (2004); Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). Here, the named defendant DiMatteo has a real interest in the cause of action brought by Merrimack and the subject matter of the controversy in the present matter, as it will affect her ability to recover in her underlying suit against Selby. As such, Merrimack's standing argument fails, and DiMatteo's arguments in objection to Merrimack's motion for summary judgment are properly before this court.
In the present case, a genuine issue of material fact exists as to whether or not Merrimack was materially prejudiced by Selby's delayed notice of the "accident or occurrence." DiMatteo has submitted deposition testimony of Maureen Ahern, the homeowners insurance policy at issue and deposition testimony of Catharina Lynch (DiMatteo's Exhibits C, E, F), to carry her burden and demonstrate the nonexistence of prejudice from the delayed notice, while Merrimack has submitted deposition testimony of Maureen Ahern, Mark O'Malley, Anthony Squeglia, the homeowners insurance policy at issue and deposition testimony of Catharina Lynch (Merrimack's Exhibits A, B, C, F, G), to demonstrate the existence of prejudice.
DiMatteo points to the excerpts of the deposition transcript of Selby (DiMatteo's Exhibit B, pages 17-18), in which Selby states that she was not present when DiMatteo allegedly fell on her property, but that the realtor, Godiksen, told her by phone within a few days that DiMatteo fell on her property during a house showing, but not that an injury occurred. When asked if Godiksen told Selby that DiMatteo was injured, Selby replied: "I asked if she [DiMatteo] was okay. She [Godiksen] said, `I think so.'" (DiMatteo's Exhibit B, page 18.) Contrary to Merrimack's arguments, this evidence is sufficient to create a genuine issue of material fact as to whether Selby gave Merrimack notice of a claim inducing occurrence as soon as was practicable.
Merrimack submits evidence that can be described as circumstantial to show that Selby must have known that DiMatteo was injured when she fell, in contravention of Selby's statements that immediately after the incident she only knew someone fell, not that an injury occurred. This evidence includes the deposition testimony of Catharina Lynch, the broker who showed the house at the time of the incident, which states that DiMatteo left the property in an ambulance and left her car at the property, with the inference being that "somebody likely would have told the homeowner about the car being left there." (Merrimack's Exhibit B, pages 19-20.) This evidence does not provide sufficient proof for the granting of a motion for summary judgment, where Lynch's response is only "I would think so." Id. Rather, this evidence demonstrates a triable issue of fact.
Merrimack's choice of language in its argument on this issue further demonstrates the issue of fact, where it states that "it is likely" that Selby was informed of the injury but that it "cannot be confirmed."
Similarly, even if Merrimack is correct in its argument that Selby must have known of DiMatteo's injury once she received notice of the underlying lawsuit in September of 2006, there is an issue of fact as to whether or not there is prejudice to Merrimack at that point, attributable to Selby, because the premises had been sold in December of 2005, and the stairs were subsequently removed by the purchasers. (Merrimack's Exhibit B, pages 22-23, 31.) When questioned when she first knew there was a lawsuit involved in the fall, however, Selby was unaware. (Merrimack's Exhibit B, page 30.)
Further, although Merrimack argues that it is prejudiced in that it has no way of knowing what the stairs were like other than by DiMatteo's own testimony, the broker involved in the 2005 sale of the subject premises testified in her deposition that "[i]t was a very narrow sort of stairway. It was easy to hold onto the walls as you were going down. Just didn't present a concern . . . [The carpeting on the stairs] seemed fine . . . I think I looked at it after she fell, just wondering what she caught on. But I didn't — there was nothing that stuck out in my head . . ." (DiMatteo's Exhibit F, pages 13-14.) This testimony specifically addresses several of Merrimack's concerns regarding the condition and size of the stairway.
Unlike Aetna Casualty Surety Co., supra, 206 Conn. 420-21, where the Supreme Court upheld the granting of summary judgment "because [the insured's] affidavit opposing summary judgment contained no factual basis for a claim that [the insured] had not been materially prejudiced by [the insured's] delay," here DiMatteo has submitted sufficient evidence by way of the deposition testimony of Maureen Ahern, the homeowners insurance policy at issue and deposition testimony of Catharina Lynch (DiMatteo's Exhibits C, E, F), to create a genuine issue of material fact as to whether or not Merrimack has been materially prejudiced by any delay by Selby in giving notice pursuant to section two, paragraph three of Selby's homeowner's policy.
Accordingly, DiMatteo's evidence and Merrimack's evidence are contradictory in nature as to the issue of prejudice to the insurer caused by the insured's delay of notice, creating a question of fact on that issue for the trier.
Finally, although Merrimack argues that it is prejudiced by Selby's failure to notify it of the loss until after a default for failure to appear was entered against Selby in the underlying action, that default was lifted once Selby's appearance was filed, and the case was restored to the pleading stage. (DiMatteo's Exhibit D.) As such, Merrimack has not sufficiently demonstrated any prejudice or inability to file responsive pleadings in that matter that would affect the declaratory judgment action in the case at bar.
III CONCLUSION
For the above stated reasons, Merrimack's motion for summary judgment is denied.