Opinion
No. HHD-CV-10-6014440 S
November 9, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#118)
This is a declaratory judgment action in which the plaintiff, MetLife Auto Home, alleges the following facts. MetLife issued a homeowner's policy to the defendant, Kevin Dowd, for the policy period from October 5, 2007 to October 5, 2008. By a complaint dated June 15, 2010, Dowd was sued by Stephen Carini regarding an incident that occurred on June 28, 2008 when Dowd allegedly wrongfully assaulted Carini. MetLife was not notified of the incident until after the lawsuit was brought by Carini against Dowd. MetLife claims that its homeowner's policy does not provide coverage for this claim because Dowd did not comply with the notice requirements of the policy, in that he did not notify MetLife "promptly," as required by the policy, of the 2008 incident which gave rise to the lawsuit.
MetLife has moved for summary judgment claiming that the undisputed facts establish that it was not given notice of the claim until two years after the episode giving rise to the claim and therefore it is entitled to judgment as a matter of law. In support of the motion, MetLife submits the affidavit of one of its supervisors in which she indicates that the first time notification was received by MetLife regarding the events between Dowd and Carini was by letter dated June 30, 2010, from Dowd's attorney, notifying MetLife of the Carini lawsuit. Dowd claims that MetLife is not entitled to summary judgment because there is an issue of fact as to whether MetLife was prejudiced by the delay in notification. In opposition to the motion for summary judgment, Dowd submits his own affidavit in which he states that the Groton Police Department conducted an investigation into the events of June 28, 2008 and that they took sworn written statements from all the witnesses to the event. Dowd also states that to his knowledge all parties to the event and the investigation are still alive.
"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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. 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 . . . The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing 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 . . . Once the moving party has met its burden [of production] . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists . . . The presence . . . of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Internal quotation marks and citation omitted.) The Episcopal Church v. Gauss, 302 Conn. 408, 421-22 (2011).
Both parties agree that the controlling law regarding the effect of late notice of a claim on an insurer's obligations under a policy is set forth in Aetna Casualty Surety Company v. Murphy, 206 Conn. 409 (1988). There the Court held that: "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 shown 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.' Literal enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages." (Citation omitted.) Id., 417-18. The Court also held that: "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 must be borne by the insured. It is the insured who is seeking to be excused from the consequences of a contract provision with which he has concededly failed to comply." Id., 419-20.
In Murphy the Supreme Court upheld the trial court's granting of summary judgment because the defendant's affidavit opposing summary judgment contained no factual basis to support the position that the insurer had not been materially prejudiced by the insured's delay of over two years in notifying his insurer of the claim. Id., 420-21.
Here Dowd's affidavit in opposition to the motion for summary judgment states that the Groton Police Department conducted an investigation into the events of June 28, 2008, very shortly after the events, and that they took sworn written statements from all the witnesses to the event. Dowd also states that to his knowledge all parties to the event and the investigation are still alive.
MetLife claims that Dowd's affidavit is insufficient to sustain his burden of proving lack of prejudice to MetLife as a result of the delay in notification. MetLife claims that the affidavit says nothing about the lack of prejudice suffered by the plaintiff and that it is entitled to conduct its own investigation at a time when events are still fresh in the minds of all witnesses and participants.
MetLife misconstrues Dowd's burden in opposing summary judgment. Dowd only needs to show, to the court's satisfaction, that an issue of fact exists, he need not establish that fact to prevail in opposing summary judgment. "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." (Internal quotation marks and citation omitted.) Farrell v. Twenty-First Century Insurance Company, 301 Conn. 657, 661-62 (2011). Dowd has provided an evidentiary basis on which the court can conclude that an issue of fact exists as to whether MetLife was prejudiced by his delay in reporting the events of June 28, 2008 to his insurer. As the Court in Murphy held, the issue of prejudice must be resolved on a factual basis. Dowd's affidavit provides an evidentiary basis upon which the court can conclude that genuine issues of fact exist on which a determination of prejudice must be made. The existence of an investigation, done in a timely manner, by the police, raises an issue as to whether MetLife was prejudiced by its inability to itself conduct a timely investigation.
Therefore the motion for summary judgment is denied.