Opinion
No. 340692
April 23, 2003
MEMORANDUM OF DECISION
The principal issue raised by the motion before the court is whether, pursuant to General Statutes (Rev. 1995) § 38a-343 (a), a notice of cancellation of insurance sent by certified mail, must actually be received by the insured to be effective. Based on General Statutes § 38a-344, this court holds that it does not.
This is an action seeking damages for personal injuries sustained by the plaintiffs Edward Schneider and Lorrie Schneider in a motor vehicle accident on January 24, 1996, which was allegedly caused by the negligence of the defendant Andrew Brown in the operation of a motor vehicle owned by the defendant Gerald Brown. Earlier in these proceedings, the court granted the defendants' motion to cite in and assert a third-party complaint against CNA Insurance Company (CNA). The defendants' third-party complaint alleges that at the time of the accident, the defendants were insured by a policy of insurance issued by CNA, that they provided CNA with timely notice of the accident involving the plaintiffs and demanded that CNA provide them with a defense and indemnification. The defendants allege that CNA breached its contract with them by refusing their demand for a defense and indemnification. CNA answered the third-party complaint, denying that it had breached its insurance contract with the defendants.
Hereafter, Gerald Brown is referred to as the defendant.
On June 23, 1997, the plaintiffs commenced an action against the Hartford Insurance Company of the Midwest (Hartford) seeking uninsured motorist benefits for injuries arising out of the January 24, 1996 accident with the defendants' vehicle. Edward Schneider et al. v. Hartford Insurance Company of the Midwest, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0344450. On May 15, 2001, the court rendered judgment in that action for the plaintiffs and against Hartford in the amount of $50,000, in accordance with a stipulation between the plaintiffs and Hartford.
On May 17, 2001, Hartford moved for permission to join as a third-party plaintiff in this action for the purposes of asserting a complaint against CNA. On October 30, 2001, the court granted Hartford's motion. In its complaint against CNA, Hartford alleges that CNA was required to pay the plaintiff's uninsured motorists benefits because it wrongfully denied coverage to the defendants under a policy of insurance that was in full force and effect at the time of the accident.
Hartford now moves for summary judgment on its complaint against CNA. Hartford claims that it is entitled to judgment "because there exists no genuine issue of material fact that CNA failed to comply with the notice provisions of General Statutes § 38a-343 (a) in canceling Gerald Brown's insurance policy." In connection with its motion, Hartford has filed the affidavit of the defendant Gerald Brown. In his affidavit, the defendant avers that he maintained insurance through CNA on the vehicle that was involved in the accident with the plaintiffs, and that he provided CNA with timely notice of the accident and made a demand that CNA defend and indemnify him. When CNA declined, his insurance representative, Litchfield Insurance Group, notified him that it had failed to receive the insurance premium that was due in November 1995. A representative from Litchfield Insurance Group also informed the defendant that CNA had sent him a notice by registered mail that the policy was being canceled for nonpayment of premium. The defendant states, however, that he never received such a notice of cancellation and "at no time did the mailman assigned to my residence either leave notice in my mailbox of the certified letter or come to my door to deliver this document." (Affidavit of Gerald Brown.)
In response, CNA has filed the affidavit of the letter carrier employed by the U.S. Postal Service whose postal route in January 1996 included the defendant's home. The letter carrier states in his affidavit that on January 9, 1996, he attempted to deliver a certified letter, #P 169 184 465, from CNA but was unable to do so because of snow accumulation on the walkway from the street to the entrance of the house and that he left a notice in the mailbox stating that the certified letter could be picked up at the main post office in town. (Affidavit of Vincent Mancini.) Attached to that affidavit is a copy of the CNA envelope which the letter carrier attempted to deliver, and which contains notations that delivery was twice attempted, that the walk was not clean and that a dog was loose. The certified letter was never picked up.
The defendant confirms this notation in his affidavit, stating that he recalls a significant snowstorm in his town in January 1996 and that at that time, he owned a fifteen year old dog.
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." (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). "[Summary judgment] is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "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).
Hartford argues that pursuant to General Statutes § 38a-343 (a), CNA was required to give the defendant actual notice of its cancellation of the policy since cancellation was based on nonpayment of an insurance premium. CNA counters that it complied with the statute by sending notice by certified mail and that actual notice was not required. Resolution of this issue requires an interpretation of our statutes governing cancellation of an automobile insurance policy for nonpayment of premium.
In State v. Courchesne, 262 Conn. 537, 562, 816 A.2d 562 (2003), our Supreme Court abandoned the "plain meaning rule" of statutory interpretation and adopted the " Bender formulation." The Bender formulation provides that statutory interpretation must consist of a "reasoned search for the intention of the legislature," even if the text of the statute appears plain and unambiguous. Id. In other words, the court will always engages in "a reasoned search for `the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.'" Id., 562-63. Courchesne did not, however, deviate from the well established principles of statutory construction that "[a] court interpreting a statute must consider all relevant sources of meaning of the language at issue — namely, the words of the statute, its legislative history and the circumstances surrounding its enactment, the legislative policy it was designed to implement, and its relationship to existing legislation and to common-law principles governing the same general subject matter." Id.
"General Statutes §§ 38a-341 through 38a-344 govern the procedures for the cancellation of an automobile insurance policy by an insurer." Majernicek v. Hartford Casualty Ins. Co., 240 Conn. 86, 92, 688 A.2d 1330 (1997). The first and most important factor used to interpret these statutes, and the starting point of any statutory analysis, is the words of the statutes themselves. Rivera v. Double A Transportation, Inc., 248 Conn. 21, 25, 727 A.2d 204 (1999). In January 1996, when CNA claims to have given the defendant notice of cancellation of the insurance policy, General Statutes § 38a-343 (a) provided: "No notice of cancellation of policy to which Section 38a-342 applies may be effective unless sent, by registered or certified mail or by mail evidenced by a certificate of mailing, or delivered by the insurer to the named insured at least forty-five days before the effective date of cancellation, provided where cancellation is for nonpayment of premium at least ten days' notice of cancellation accompanied by the reason therefor shall be given. No notice of cancellation of a policy which has been in effect for less than sixty days may be effective unless mailed or delivered by the insurer at least forty-five days before the effective date of cancellation, provided that at least ten days' notice shall be given where cancellation is for nonpayment of premium or material misrepresentation. The notice of cancellation shall state or be accompanied by a statement specifying the reason for such cancellation. "
"[T]he language of the statute is the most important factor to be considered, for three very fundamental reasons. First, the language of the statute is what the legislature enacted and the governor signed. It is, therefore, the law. Second, the process of interpretation is, in essence, the search for the meaning of that language as applied to the facts of the case, including the question. of whether it does apply to those facts. Third, all language has limits, in the sense that we are not free to attribute to legislative language a meaning that it simply will not bear in the usage of the English language." (Emphasis in original.) State v. Couzchesne, supra, 262 Conn. 563-64.
In 1998 and 2002 General Statutes § 38a-343 was amended. There is no claim that those amendments apply to this case.
No issue has been raised over the timeliness or the contents of the notice, only its mode. With respect to the mode by which notice is given, the rule is that "[s]trict compliance by an insurer with the statutory mandates and policy provisions as to notice is essential to effect a cancellation through such notice." Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 412, 472 A.2d 356 (1984).
Hartford focuses on the statutory language that provides that where a policy is cancelled for nonpayment of premium, notice must be "given." "Given" is the past participle of the verb to give, and it is also a verb. The dictionary contains well over a dozen definitions of the word "give," including proffer, deliver, provide and to cause to have or receive. Merriam Webster's Collegiate Dictionary (10th Ed., 1996).
In Rapid Motor Lines v. Cox, 134 Conn. 235, 237, 256 A.2d 519 (1947), the plaintiff brought an action under General Statutes (Rev. 1930) § 1481, now General Statutes § 13a-144, the state highway defect statute. A statutory condition precedent to bringing such an action was that notice of the injury and other particulars "shall have been given within sixty days thereafter to the highway commissioner." The issue in Cox was whether a notice mailed within the sixty-day period, but not received by the commissioner until after sixty days, satisfied the requirement of the statute. The court held that it did not.
The court in Cox stated: "One meaning of the verb `give' is `to make over or bestow.' Another is `to deliver or transfer; to . . . hand over.' The idea of delivery is predominant in other meanings of the word. Webster's New International Dictionary (2d Ed.). It is obvious from the context of the statute that `give' was not used in the former sense. To accord it the latter meaning is the reasonable and natural interpretation, in view of the purpose of the provision, which, it must be held, is to fix a definite limit upon the time within which notice shall be received by the highway commissioner. Any other construction would give rise to needless and undesirable uncertainty." Rapid Motor Lines, Inc. v. Cox, supra, 134 Conn. 237-38.
As Hartford observes, the statute here employs the word "sent" in connection with the general means of cancellation in one part of the statute, and "given" with respect to cancellation for nonpayment of premium later in the statute. "Sent" is the past tense of "send," which in this context means "to cause to go to dispatch by means of communication . . ." Merriam Webster's Collegiate dictionary (10th Ed., 1996). To "send" does not generally connote receipt. In re Ionosphere Clubs, Inc., 111 B.R. 436, 442-43 (S.D.N.Y. 1990) (notice was "sent" when posted with the U.S. Post Office); Sovereign Camp of Woodmen of the World v. Grandon, 64 Neb. 39, 89 N.W. 448, 449-50 (1902). Thus, Hartford observes, "[t]he use of different terms within the same sentence of a statute plainly implies that differing meanings were intended." Hinchliffe v. American Motors Corporation, 184 Conn. 607, 613, 440 A.2d 810 (1981).
Hartford's argument is supported by Hernandez v. Hartford Accident Indemnity Co., Superior Court, judicial district of New Haven, Docket No. CV 88277868 (February 27, 1990) ( 1 Conn.L.Rptr. 317, 319), in which Judge Hodgson analyzed General Statutes § 38-175h, the predecessor to § 38a-343 and noted that "the shift in wording of the statute to `given' in the clause relating to notice of cancellation for nonpayment of premiums must be afforded some meaning." The court concluded that the legislature's decision to use the word "given" signifies "an intention that a cancellation notice for nonpayment of premium must actually be received by the insured before the policy is canceled." Id.
Invocation of this rule of interpretation, however, does not measurably advance the analysis here. General Statutes § 38a-343 provides that to be effective a notice of cancellation must generally be sent by specially evidenced mail " or delivered by the insurer to the named insured at least 45 days before cancellation," but provides that notice of at least ten days "shall be given" if cancellation is for nonpayment of premium. "The word `deliver' includes a handing over for the purpose of taking even though both acts do not occur simultaneously . . ." (Citation omitted.) Tucker v. Connecticut Ins. Placement Facility, 192 Conn. 653, 660, 473 A.2d 1210 (1984). Depositing a letter with the post office in the specified manner can constitute delivery when the applicable statute authorizes mail delivery. Id. Here, the statute provides for either sending or delivering notice "to the named insured," and specifies that notice must be "given" when cancellation is for nonpayment of premium. Had the legislature intended to require actual notice to the named insured where cancellation was for nonpayment of premium it could have again used the word "deliver" rather than the far more equivocal word "given."
Moreover, a statute is to be construed as a whole in an effort to reconcile all of its parts. Vibert v. Board of Education, 260 Conn. 167, 171, 793 A.2d 1076 (2002). A reasonable construction of the statute is not that the phrase "shall be given" connotes a different mode of notice but, rather, refers back to the methods of giving notice previously stated in the statute. Cf. Stenson v. Northland Insurance Co., 42 Conn. App. 177, 181, 678 A.2d 1000 (1996) ("Cancellation of a policy during the policy period due to nonpayment of the premium requires specific notice sent by registered or certified mail or by mail evidenced by a certificate of mailing at least ten days before the effective date of cancellation"). On balance, this court finds the text of the statute inconclusive in determining whether actual notice is required.
Legislative history is another significant component of statutory construction. Courchesne, supra, 262 Conn. 561; Burke v. Fleet National Bank, 252 Conn. 1, 16, 742 A.2d 293 (1999). That history reflects that a principal purpose behind the legislature's enactment of what is now § 38a-343 was to standardize the procedure by which insurers canceled automobile insurance. See 13 H.R.Proc., Pt. 10, 1969 Sess., p. 4436 (remarks of Representative Vicino, floor sponsor) ("this will set a uniformity to the way companies may cancel automobile insurance. This measure gives the public positive assurance that all insurance companies will comply with reasonable standards for cancellation. For the most part this merely puts into statute which many of you companies are now doing voluntarily"). Also, as the Supreme Court has observed, "in enacting § 38a-343 (a), the legislature appears to have intended to eliminate the potentially harsh consequences to an insured of driving without knowing that his or her policy was inoperative. See 13 H.R.Proc., Pt. 10, 1969 Sess., p. 4437, remarks of Representative Gerald Stevens (`[i]f . . . someone has his insurance policy canceled and is driving under the mistaken impression that he has insurance and subsequently is involved in an accident, the consequences can be rather severe'); see also Johnston v. American Employers Ins. Co., 25 Conn. App. 95, 97-98, 592 A.2d 975 (1991) (`purpose of General Statutes § 38a-343 . . . is to assure that before an automobile insurance policy is canceled the insured has a clear and unambiguous notice of the cancellation'). Thus, the requirement that an insurer provide an insured with notice of its decision to cancel an automobile insurance policy was a legislative effort that focused on affording an insured an adequate opportunity to procure other insurance." Majernicek v. Hartford Casualty Ins. Co., supra, 240 Conn. 93.
The original bill giving rise to what is now General Statutes § 38a-343 "provided where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given." Public Act No. 809 § 3. Thus, the word "given" appeared in the original legislation and in the same context. The legislative history, however, fails to reflect that the legislature ascribed a meaning to "given" distinct from mailing.
The legislative history, however, does reflect that the bill was amended on the floor of the House of Representatives to provide for mailing of a notice of cancellation by certified mail, return receipt requested, instead of ordinary mail. That provision is now General Statutes § 38a-344. The proponent of the amendment, Representative Gerald Stevens stated: "It is our feeling that such an important step as cancellation of an insurance policy or intention not to renew should require more than simple proof of mailing which can be a stamped receipt from the post office. By requiring a return receipt there is proof not only of mailing but of receipt, and if you remember the proof of mailing required is that the person have knowledge that his insurance is being canceled. If there is no provision for return receipt and someone has his insurance policy canceled and is driving under the mistaken impression that he has insurance and subsequently is involved in an accident, the consequences can be rather severe. I think this simple amendment will provide more adequate protection for the policyholder and I urge its adoption." 13 H.R.Proc., Pt. 10, 1969 Sess., p. 4437. Concededly, these remarks may be read to support Hartford's claim that actual notice to the insured is required in order to effectuate notice of cancellation.
In interpreting § 38a-343, however, this court is duty-bound to examine the statute's relationship to other existing legislation. State v. Courchesne, supra, 262 Conn. 561. Here, General Statutes § 38a-344 proves dispositive of the issue before the court. General Statutes § 38a-344 provides: "Proof of mailing by certified mail, return receipt requested, notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice."
"It is settled that statutes must be construed consistently with other relevant statutes because the legislature is presumed to have created a coherent body of law. In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992). In construing a statute, the court may look to other statutes relating to the same subject matter for guidance. Vecca v. State, 29 Conn. App. 559, 564, 616 A.2d 823 (1992)." Petco Insulation Co. v. Crystal, 231 Conn. 315, 323-24, 649 A.2d 790 (1994). "A statute `relates to' the same subject matter of another statute where they have a connection with or reference to the same subject matter . . . The subject matter of a statute is the matter with which it deals; Martineau v. Crabbe, 46 Utah 327, 150 P. 301, 304 (1915); broadly construed. Crews v. Cook, 220 Ga. 479, 139 S.E.2d 490, 492 (1964)." In re Terrence S., Superior Court, Child Protection Session at Middletown (April 11, 2002) ( 32 Conn.L.Rptr. 52, 54).
General Statutes § 38a-343 and General Statutes § 38a-344 are in the same chapter of the general statutes, chapter 700; both statutes are the progeny of the same statutory ancestor, 1969 Public Act No. 809, "An Act Concerning The Regulation of Automobile Insurance Policy Cancellation; " and both statutes relate to the notice of cancellation of insurance. Manifestly, both statutes relate to the same subject matter.
"A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one section to be construed . . ." (Citations omitted; internal quotation marks omitted.) In re Bruce R., 234 Conn. 194, 207-08, 662 A.2d 107 (1995).
General Statutes § 38a-344 provides that proof of mailing a notice of cancellation by certified mail return receipt requested "shall be sufficient proof of notice." Although the phrase "shall be sufficient proof" has not previously been subject to interpretation within the context of § 38a-344 or any other General Statute, it has been interpreted in the context of an insurance policy provision pertaining to the cancellation of insurance. In Westmoreland v. General Accident F. L. Assurance Corporation, 144 Conn. 265, 270, 129 A.2d 623 (1957), the policy provided: "This policy may be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice . . ." Construing this provision, the court held that "[i]t is always competent for parties to contract as to how notice shall be given, unless their contract is in conflict with law or public policy. When they do so contract, the giving of a notice by the method contracted for is sufficient whether it results in actual notice or not." (Emphasis added.) Id., 270. This court can divine no reason why the command of § 38a-344 should be given less effect than a similar provision in an insurance policy which, after all, if ambiguous must be construed against the insurer. Hansen v. Ohio Casualty Insurance Co., 239 Conn. 537, 548, 687 A.2d 1262 (1996). Notably, Westmoreland was decided in 1957 and, thus, was the law when the predecessor to § 38a-344 was enacted in 1969.
Despite the ambiguity in the language of General Statutes § 38a-343, Section 38a-344 is clear and unambiguous, and there is no relevant extratextual evidence that would suggest to read the statute other than as its plain language indicates. State v. Courchesne, supra, 262 Conn. 574.
The Hartford admits in its brief that "CNA sent notification of cancellation, dated December 26, 1995 to Gerald Brown [the insured] via certified mail." This is all that the law required in order to accomplish the cancellation. Pursuant to General Statutes § 38a-344, proof of mailing a certified letter is sufficient proof of notice. Actual notice to the named insured is not required. "It is proof of mailing, not proof of receipt by the insured, that is sufficient. Nowhere does the statute require an insurer to produce a signed return receipt to establish sufficient proof of notice, nor have the plaintiffs cited case law which supports this proposition." Iuteri v. Allstate Insurance Co., Superior Court, judicial district of New Haven, Docket No. CV 94 0357659 (July 8, 1999, Downey, J.) ( 25 Conn.L.Rptr. 67, 69). CNA had no duty to make further efforts to serve notice of cancellation beyond those expressed in the statute. Cf. Stratton v. Abington Mutual Fire Ins. Co., 9 Conn. App. 557, 562, 520 A.2d 617, cert. denied, 203 Conn. 807, 525 A.2d 522 (1987).
The remarks of Representative Stevens quoted supra do not militate a different result. Even if those remarks may be construed as stating that the requirement of certified mail, return receipt requested contemplated actual receipt by the insured, General Statutes § 38a-344 is absolutely clear that it is proof of mailing by certified mail, return receipt requested, not actual receipt, that is sufficient proof of notice. There is no other plausible reading of § 38a-344. Although our Supreme Court recently held that statutory analysis does not stop with the plain meaning of a statute, it noted that in most cases, the plain meaning will "prove to be the legislatively intended meaning of the language." State v. Courchesne, supra, 262 Conn. 574.
Certain earlier trial court cases are either distinguishable or not persuasive. In Clary v. Empire Mutual Ins. Co., 30 Conn. Sup. 113, 303 A.2d 26 (1972), the defendant insurer refused to defend the plaintiff and denied her coverage on the ground that it canceled her policy prior to the date of the accident. The court held that the plaintiff's evidence of mailing notice of cancellation was not sufficient under the terms of the plaintiff's policy as it was conflicting, uncertain and of questionable credibility. Moreover, the plaintiff's own agent did not notify her that her policy had been canceled because he did not know himself. Clary is not instructive here because its facts are distinguishable, and it did not involve or discuss § 38a-343 or § 38a-344.
The court's holding in DiProspero v. Nationwide Mutual Fire Ins. Co., 30 Conn. Sup. 291, 311 A.2d 561 (1973), that "giving" notice without stipulating the form or way in which notice must be given means that the insured must have actual receipt, is also distinguishable. Although DiProspero interprets the word "giving," it does so in the context of the standard form fire insurance policy, a statute to which § 38a-344 clearly does not apply.
Finally, Hartford cites to Hernandez et al v. Hartford Accident Indemnity Co. et al., supra, Superior Court, judicial district of New Haven, Docket No. CV 88 277868, 1 Conn.L.Rptr. 317, 319 (holding that notice of cancellation pursuant to § 38a-343 must be actually received), and Atwood v. Progressive Insurance Co., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 95 0051089 (September 3, 1997, Corradino, J.) ( 20 Conn.L.Rptr. 473) (reasoning that notice of cancellation pursuant to § 38a-343 requires that notice be received by the insured). While these Superior Court cases do hold that notice of cancellation under § 38a-343 must actually be received by the insured, neither case discusses § 38a-344, which this court finds dispositive.
Additionally, as to whether the letter carrier left a notice of certified mail in the insured's mailbox, the letter carrier states by affidavit that he left a notice in the defendant's mailbox that a certified letter could be picked up at the post office, and that the letter was never claimed. The defendant denies that the letter carrier ever left such notice.
Certainly "[o]ne cannot refuse the acceptance of notice and then claim that it was not given to him." Stratton v. Abington Mutual Fire Ins. Co., supra, 9 Conn. App. 563. Moreover, "[f]ull and adequate means of knowledge ordinarily are, in law, equivalent to knowledge." Attardo v. Ambriscoe, 147 Conn. 708, 711, 166 A.2d 458 (1960).
Questions of credibility as to each party's allegations raise an issue of fact which this court cannot resolve on a motion for summary judgment. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 107, 639 A.2d 507 (1994). In light of this court's holding that actual notice to the defendant was not required, however, the court does not deem these outstanding question of fact to be material.
Pursuant to General Statutes § 38a-343 notice of cancellation of an automobile insurance policy may be made by certified mail, return receipt requested; actual notice to the named insured is not necessary. Pursuant to § 38a-344 proof of such mailing is sufficient proof of notice. Here, the letter carrier's affidavit and the copy of the envelope evidencing the letter carrier's two attempts to make delivery of the letter are proof of such mailing and, hence, proof of notice to the named insured. Hartford's motion for summary judgment is denied.
Subsequent to oral argument on Hartford's motion, the court received a letter from counsel to the defendants Gerald Brown and Andrew Brown advising the court that earlier in these proceedings both CNA and the Browns had respectively moved for summary judgment and that both motions had been denied by the court (Brennan, J.). Judge Brennan is presently disabled. Hartford's counsel posited that the denial of those motions is the law of the case in this matter. Clearly, the denial of the Browns' motion, which sought summary judgment against CNA, can hardly be deemed law of the case against CNA. For this reason, the court will address the doctrine only with respect to the denial of CNA's motion for summary judgment.
Preliminarily, however, the court notes that the Supreme Court has repeatedly expressed its "disapproval of submission by parties of informal letter requests . . ." Gauvin v. New Haven, 187 Conn. 180, 186 n. 2, 445 A.2d 1 (1982).
The law of the case was extensively discussed by the Supreme Court in Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). "The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge . . . Judge shopping is not to be encouraged and a decent respect for the views of his brethren on the bench is commendable in a judge. Nevertheless, if the case comes before him regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment . . . The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle." (Citations omitted; emphasis added; internal quotation marks omitted.) Breen v. Phelps, supra, 186 Conn. 99-100.
The doctrine of the case is not applicable here for several reasons. First, since Judge Brennan simply denied the motion to strike the complaint "without giving his reasons, it is not possible to divine the basis of his ruling. See Gould v. MB Motorsport, Superior Court, judicial district of Waterbury, Docket No. 112515 (November 30, 1994, Sylvester, J.); Birdsall v. Insulation Material Products, Superior Court, judicial district of New Haven, Docket No. 324316 (May 4, 1992, Hodgson, J.) ( 6 Conn.L.Rptr. 388)." Galligan v. Edward D. Jones Co., Superior Court, judicial district of New Haven, Docket No. 389623 (November 13, 2000, Levin, J.). That is, this court is unable to determine from Judge Brennan's denial of CNA's motion what "law" is the law of the case. Second, assuming, as the Brown's counsel states in his letter, that the basis of Judge Brennan's ruling was that there were genuine issues of material fact extant, such a basis would certainly not control the disposition of Hartford's motion. Otherwise stated, that there existed genuine issues of material fact that precluded the granting of summary judgment in favor of CNA does require this court, on Hartford's motion, to grant summary judgment against CNA. Third, on summary judgment, a court is required to view the evidence in the light most favorable to the nonmoving party. Pelletier v. Sordoni/Skanska Construction Co., 262 Conn. 372, 376, 815 A.2d 82 (2003). Thus, on CNA's motion for summary judgment, Judge Brennan presumably viewed the evidence in the light most favorable to the Browns. On Hartford's motion for summary judgment against CNA, however, this court is required to view the evidence in the light most favorable to CNA. "If the standards are different, then the law of the case does not apply." Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 735, 805 A.2d 7 (2002); see Firgeleski v. Hubbell, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 035287 (December 19, 2001, Sevens, J.); Galligan v. Edward D. Jones Co., supra, Superior Court, Docket No. 389623. Fourth, it is particularly appropriate for a Judge of the Superior Court trial judge to reconsider a motion for summary judgment that has been denied where new evidence has been presented which was not before the court at the time of the original motion. Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 260-61, 532 A.2d 1302 (1987). Here, CNA has submitted the affidavit of the letter carrier who sought to deliver the certified notice of cancellation to Gerald Brown. This affidavit was not before Judge Brennan. Moreover, in its earlier motion for summary judgment, CNA failed to cite General Statutes § 38a-344, which this court has found dispositive of Hartford's motion. Finally, our courts have flatly held that "[a] judge is not bound to follow the earlier decisions of another judge in the same proceedings." Young v. Marx, 24 Conn. App. 81, 83, 585 A.2d 1253, 2003 (1991); see also McCutcheon Burr, Inc. v. Berman, 218 Conn. 512, 526, 590 A.2d 438 (1991); Mac's Car City, Inc. v. American National Bank, supra, 205 Conn. 262; Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984); Fiaschetti v. Nash Engineering Co., 47 Conn. App. 443, 445-46, 706 A.2d 476 (1998).
BY THE COURT
Bruce L. Levin Judge of the Superior Court