Opinion
AANCV156019614S
07-07-2016
Savyon Shaw et al. v. Geico General Insurance Co
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION TO DISMISS
Barry K. Stevens, J.
STATEMENT OF THE CASE
The plaintiffs in this action are Savyon Shaw and Fiona Harris. Savyon is an unemancipated minor. Fiona Harris is Savyon's mother and appears on his behalf. The defendant is GEICO General Insurance Company (GEICO).
The complaint alleges that on September 19, 2014, Harris was operating a motor vehicle on Main Street, Bridgeport, Connecticut. Savyon was an occupant of this automobile. While Harris was slowing her motor vehicle to turn into a driveway located at 3170 Main Street, the right, rear of her vehicle was violently struck by another motor vehicle. " As a result of being struck from behind, the plaintiff's vehicle was propelled across the left lane by the impact, striking a tree in a nearby parking lot, where it came to rest." Compl., ¶ 6. The collision was caused by the negligence of the operator of the other vehicle. The other driver left the scene and this person's identity is unknown. The collision caused Savyon to suffer serious personal injuries requiring extensive medical treatment. Some of his injuries are permanent in nature.
When the accident occurred, the plaintiffs were insured by an automobile insurance policy issued by GEICO. The complaint alleges that GEICO is obligated under the uninsured motorist coverage of this policy to compensate the plaintiffs for the damages they have incurred as a result of this automobile accident, and despite demand, GEICO has refused to honor its contractual obligations. Specifically, the complaint alleges, " [a]s a condition of said policy, the defendant . . . agreed to pay compensatory damages which an 'insured' is legally entitled to recover from the owner or operator of an 'uninsured' or 'underinsured' motor vehicle because of 'bodily injury' sustained by an 'insured' and caused by an accident." Compl., ¶ 15. Count one of the complaint seeks the recovery of economic and non-economic damages suffered by Savyon. Count two seeks the recovery of economic damages incurred by Harris for the medical care and treatment of Savyon.
Pending before the court is GEICO's motion to dismiss the complaint on the ground that the court lacks subject matter jurisdiction. The defendant argues that the plaintiffs lack standing to maintain this action because the conditions of the policy that must be satisfied before the institution of suit have not been met by the plaintiffs. The defendant's motion to dismiss was filed on February 25, 2016. In support of the motion, the defendant filed a memorandum of law, the affidavit of Matthew Szymanski, a claims examiner, and a copy of the insurance policy. The plaintiffs filed an objection to the motion on March 9, 2016. The defendant filed a reply memorandum on April 5, 2016. On April 11, 2016, the court heard oral argument on the motion and the objection. For the following reasons, the motion is denied and the objection is sustained.
DISCUSSION
I
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " The grounds which may be asserted in [a motion to dismiss include] lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). It is well established that " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 626.
The principles of subject matter jurisdiction are well established. " Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 763, 741 A.2d 956 (1999).
" It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. 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.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). " [W]hen standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [that may be remedied]." (Internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 219, 764 A.2d 739 (2001).
II
A
As explained further below, the defendant contends that the parties' insurance contract requires the plaintiffs to satisfy certain provisions of the policy before instituting suit. According to the defendant, the plaintiffs' failure to comply with these contractual conditions deprives them of standing to maintain this action, and in turn, deprives the court of subject matter jurisdiction over the complaint. As a preliminary matter, the court disagrees with the defendant's view that the issues raised by the motion to dismiss implicate the court's subject matter jurisdiction.
As previously stated, the question of standing concerns whether a plaintiff is a proper party to seek adjudication of the controversy. The answer to this question substantially turns on whether the plaintiff has a legally sufficient interest in the subject matter of the cause of action. See Ganim v. Smith & Wesson Corp., supra, 258 Conn. 347 (" 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 . . .").
There can be no bona fide dispute that the plaintiffs, as the insureds, have a legally sufficient interest for them to have standing to claim that GEICO, as the insurer, has failed to comply with its obligations under the policy. Similarly, there can be no bona fide dispute that the plaintiffs are the proper parties to seek redress for this non-compliance. Indeed, the established rule is that only a party or a beneficiary to a contract has standing to assert claims for its breach. " It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract . . . Under this general proposition, if the plaintiff is neither a 'party' to, nor a contemplated beneficiary of [the agreement], she lacks standing to bring her claim for breach of the agreement." (Citation omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993). Thus, the contractual prerequisites to instituting suit as argued by the defendant do not undermine the plaintiffs' standing. These prerequisites may condition or circumscribe the manner in which the plaintiffs' interest may be asserted, but they do not remove or extinguish the plaintiffs' legal interest either in the insurance policy itself or in their right to seek relief for its breach. The defendant's arguments to the contrary are rejected.
To support its argument that the plaintiffs' standing is implicated by its motion to dismiss, the defendant relies solely on the trial court decision, Carrington Asset Co., LLC v. American Home of Mortgage Servicing, Inc., Superior Court, judicial district of Stamford, Complex Litigation Docket, Docket No. X08 CV 095010295 S (Feb. 23, 2010, Jennings, J.T.R.) [49 Conn.L.Rptr. 483, ]. In the Carrington case, the court stated its jurisdiction was implicated by a motion to dismiss alleging that the plaintiffs instituted suit before pursuing contractually required arbitration. The court described this jurisdictional deficiency as involving the plaintiff's standing. This court respectfully declines to follow the Carrington decision. Although this decision refers to standing, the opinion does not provide an analysis or an adequate explanation about why standing is implicated. Moreover, the Carrington decision relies on two cases to support its holding: Multi Service Contractors, Inc. v. Town of Vernon, 181 Conn. 445, 447, 435 A.2d 983 (1980), and Homonnay v. Nusbaum, Superior Court, judicial district of Fairfield, Docket No. CV-05-4011886-S, (May 3, 2006, Arnold, J.) Both these cases hold that the courts' jurisdiction was implicated by the plaintiffs' failure to pursue contractually required arbitration before filing suit. Neither of these cases make any reference to the plaintiffs' standing.
Although not controlling to the disposition of the defendant's motion, the court also questions whether the defendant's motion to dismiss truly implicates the court's subject matter jurisdiction as compared to the court's authority to entertain the requested relief. These concepts are often obscured or used interchangeably, but they are nevertheless distinguishable. See generally, Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989) (" [J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court" [internal quotation marks omitted]). Strictly defined, subject matter jurisdiction concerns whether the court has jurisdiction over the general class of actions to which a particular case belongs. See Federal Deposit Ins. Corp. v. Crystal, supra, 251 Conn. 763. " A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); accord, Demar v. Open Space and Conservation Commission, 211 Conn. 416, 424-25, 559 A.2d 1103 (1989). Consequently, while the parties to cases often focus on whether the trial court has subject matter jurisdiction, very often " this matter is not truly jurisdictional in nature, but involves the trial court's authority to act." Fusco v. Fusco, 266 Conn. 649, 652, 835 A.2d 6 (2003); see, e.g., Public Service Co. of Indiana, Inc. v. Decatur County Rural Electric Membership Corp., 173 Ind.App. 198, 202, 363 N.E.2d 995 (1977) (the defendant " has confused the concepts of subject matter jurisdiction and jurisdiction over a particular case . . . The former concerns whether a court has jurisdiction over a particular class of actions while the latter concerns whether a court has jurisdiction over a particular case. Obviously, a court can have jurisdiction over an entire class of actions, but not have jurisdiction over a particular action within that class due to the facts of that particular case" [citation omitted]).
In this particular case, the Superior Court, as a court of general jurisdiction, quite clearly has the power or competence to entertain actions involving insurance contracts, but the court's authority to grant the plaintiffs' requested relief in this specific case may be deprived by their failure to satisfy the contractual prerequisites to suit.
Moreover, subject matter jurisdiction " cannot be waived or conferred by consent . . ." Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). Because, as a general rule, the court's subject matter jurisdiction cannot be defined or conferred by private agreements, the court questions whether GEICO can deprive the court of " subject matter" jurisdiction by merely adding a provision in its insurance contract that it can only be sued when certain conditions are met.
Similarly, the court rejects the defendant's argument that this case is not " ripe" for adjudication because the plaintiffs have not satisfied the prerequisites for suit. " [T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . ." (Internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004). The defendant is correct that ripeness implicates the court's subject matter jurisdiction. In the particular factual context of this case, however, the plaintiffs' failure to satisfy the contractual prerequisites of suit as articulated by the defendant implicates the plaintiffs' ability to prove their case, rather than a deficiency in the court's subject matter jurisdiction, particularly when the contractual non-compliance may be found excused or waived.
B
1
As previously stated, the defendant contends that the plaintiffs are precluded from maintaining this action because they have not complied with the conditions of the insurance policy necessary for them to institute suit. The defendant relies on the following provisions of the insurance policy to support its argument. The defendant first relies on the provision that states: " We [GEICO] cannot be sued unless the insured or his legal representative has fully complied with all of the policy terms." Def.'s Ex. A, p. 15. The defendant emphasizes that Connecticut Insurance Regulations provide that automobile insurance policies may contain such a provision. Conn. Reg. § 38a-334-8(b)(1)(E).
Connecticut Insurance Regulations § 381-334-8(b)(1)(E) states the following: " (b) Conditions. (1) A policy may contain in substance the following conditions: . . . (E) a provision that no action shall lie against the insurer until all the terms of the policy have been complied with or, under the liability coverages, until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the insurer, and a further provision that the insurer shall not be joined or impleaded in any action against the insured brought to determine his liability."
The defendant next explains that the plaintiffs cannot maintain this action because they have not satisfied three provisions of the policy. The first one provides that within thirty days of the accident, the insureds are required to file with GEICO " a statement setting forth the facts of the accident and claiming that [they have a] cause of action for damages against an unidentified person." Def.'s Ex. A, p. 12. The second provision requires the insured to cooperate or assist in taking legal action against the negligent driver as GEICO may require. The third provision requires the insured to submit to an examination under oath when requested by GEICO.
More fully, the relevant part of this provision defines a " hit-and-run auto" as follows: " (a) causing bodily injury to an insured through physical contact with him or with an auto he is occupying at the time of the accident . . . and (b) whose operator or owner cannot be identified, provided the insured or someone on [his] behalf: (1) reports the accident within 24 hours to a police, peace or judicial officer or to the commissioner of motor vehicles; (2) files with us within 30 days a statement setting forth the facts of the accident and claiming that [she] has cause of action for damages against an unidentified person; and (3) makes available for inspection, at our request, the auto occupied by the insured at the time of the accident." Def.'s Ex. A, p. 17.
This " examination under oath" provisions states the following: " The insured or any other person seeking coverage under this policy must submit to examination under oath by any person named by us when and as often as we [GEICO] may require." Def.'s Mem. of Law in Supp. Of Mot. to Dismiss, Ex. A, p. 17.
The court will first address the last two provisions presented by the defendant. In support of its argument regarding these provisions, the defendant has filed the affidavit of Szymanski. In this affidavit, Szymanski states that he called the plaintiffs' counsel to acquire information about the accident and did not reach anyone. He left a message for his call to be returned and he did not receive a return call. Because Szymanski did not receive a call back, the defendant contends that the plaintiffs failed to comply with these provisions of the policy. The court disagrees.
Neither of these provisions precludes recovery under the policy merely because GEICO called the plaintiffs' attorney and the call was not returned. The first provision is entitled " assistance and cooperation" and states that GEICO " may require the insured to take action necessary to preserve [the insured's] recovery rights" against the person " who may be legally responsible." There is no evidence that GEICO requested the plaintiffs to take any action against the tortfeasor and the defendant does not claim that it made any such request. Obviously, such a request would appear futile and ludicrous since the tortfeasor was an unknown hit-and-run driver.
The next provision requires the insured to submit to an examination under oath when GEICO " may require." Again, there is no evidence that GEICO told the plaintiffs that an examination under oath was required; the defendant does allege otherwise. In short, the defendant made no oral or written requests for the plaintiffs to do anything, except to return Szymanski's call. Indeed, when Szymanski called, he did not even make any of the requests at issue in the message he left.
2
The notice requirement of the insurance policy's " hit-and-run" provision presents different difficulties. The insurance policy defines a " hit-and-run auto" as a motor vehicle causing harm to an insured provided that the insured or someone on his behalf " files with us within 30 days a statement setting forth the facts of the accident and claiming that he has [a] cause of action for damages against an unidentified person." See n. 4. A requirement for the insured to submit a statement within thirty days of the accident is not a new or novel aspect of such " hit-and-run" automobile insurance provisions. Such requirements have been addressed and recognized by the courts. See, e.g., Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 289 A.2d 896 (1971).
The plaintiffs failed to provide this statement within thirty days of the accident. Because of this failure, and because the policy also provides that GEICO cannot be sued unless the insured has " fully complied with all of the policy terms, " the defendant insists that the plaintiffs cannot maintain this action.
The plaintiffs object to the defendant's motion to dismiss insisting that the Supreme Court's decision in Aetna Casualty Ins. Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988), overruled in part, Arrowood Indemnity Co. v. King, 304 Conn. 179, 39 A.3d 712, (2012), is more recent precedent that controls and undermines the defendant's argument. The court in Murphy held that an insured's failure to comply with the notice requirement of an insurance policy does not deprive the insured of the benefits of the policy when the insurer suffers no prejudice from the delay. Accord, Taricani v. Nationwide Mutual Ins. Co., 77 Conn.App. 139, 822 A.2d 341 (2003) (insured's failure to comply with policy's cooperation clause excused when insurer suffers no prejudice.) Moreover, the burden of proving the existence of prejudice is placed on the insurer. Arrowood Indemnity Co. v. King, supra, 304 Conn. 179. Thus, the plaintiffs argue that the motion to dismiss must be denied and the defendant should be required to file a special defense. According to the plaintiffs, through a special defense, the defendant would have the opportunity to plead and prove that it was materially prejudiced by the plaintiffs' failure to comply with the notice provision. In response, the defendant contends that Murphy is distinguishable because the insurance policy in the present case, as compared to the one in that case, involves a " hit-and-run" provision which precludes the plaintiffs from suing GELCO unless this notification requirement is met. The court agrees with the plaintiffs.
In Aetna Casualty Ins. Co. v. Murphy, supra, 206 Conn. 409, the Supreme Court held that the insured bore the burden of proving that his failure to comply with the policy's notice requirement did not prejudice the insurer. In Arrowood Indemnity Co. v. King, supra, 304 Conn. 179, the court overruled Murphy 's holding regarding this burden of proof. King recognized the difficulty presented by placing the burden on the insured to show that his noncompliance did not cause prejudice and held that this burden should be placed on the insurer:
The facts of Murphy, are as follows. The defendant in the case was sued for causing damage to leased premises when he moved from the property. He filed a third-party complaint against his insurance carrier claiming that he was insured for the alleged property damage. The defendant's insurance policy contained two notice provisions. One provided that he was required to send the insurer written notification of an incident covered by the policy " as soon as practicable." The second notice provision required the insured to forward the documents of any claim or lawsuit to the insurer " immediately" after he received them. The insured did not comply with either of these notice requirements. Based on this non-compliance, the insurer moved for summary judgment on the third-party complaint. This motion was granted. The trial court concluded that the delay in providing the requisite notice was inexcusable and unreasonable, and that it operated to void the insurer's duties under the contract of insurance. The Supreme Court reversed.
In Murphy, the Supreme Court decided that a balance needed to be reached between the principle that a contract should be enforced as written and the principle that compliance with a contract condition should " in appropriate circumstances, be excused in order to avoid a disproportionate forfeiture." (Internal quotation marks omitted.) Aetna Casualty Ins. Co. v. Murphy, supra, 206 Conn. 413. " 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 . . . a material part of the agreed exchange." (Internal quotation marks omitted.) Id., 417-18.
The court explained its reasoning by emphasizing the following: 1) insurance policies are contracts of adhesion and their terms are not typically determined through a bargaining process between the parties; 2) literal enforcement of a notice provision will often cause a forfeiture disproportionate to the magnitude of the insured's breach; and 3) " 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." Id., 415-16.
The reasoning of Murphy is entirely applicable to the present case. The parties' dispute concerns the terms of an insurance policy which is undisputedly a contract of adhesion; literal enforcement of the notice provision will cause a complete forfeiture of the plaintiffs' benefits under the policy; and the defendant seeks to impose this forfeiture without considering whether it has suffered any actual prejudice by the non-compliance. The defendant's arguments that Murphy is not controlling are rejected.
The defendant first argues that Murphy is distinguishable because that case did not involve a hit-and-run notice provision. The defendant reasons that prompt notice to the insurer is so much more important in hit-and-run cases than in other insurance cases that literal enforcement of the notice requirement in hit-and-run cases is paramount and should be required. To support this argument, the defendant cites numerous cases where the courts have upheld strict compliance with the notice requirement of hit-and-run provisions by emphasizing the insurer's need to promptly investigate an accident involving an unidentified or " phantom" vehicle. The defendant also argues that Murphy did not address an insurance policy that contained a provision, such as the one in this case, precluding the insured from maintaining an action against GEICO unless all provisions of the policy, including the hit-and-run notice provision, are met. The court is unpersuaded.
For example, as part of its argument that the notice provision here should be strictly applied, the defendant relies on out-of-state cases to support the contention that " notice in the context of hit-and-run automobile claims is more important than in the normal motor vehicle situation." Def.'s Mem. of Law, p. 10. One of the cases heavily relied on by the defendant is Friend v. State Farm Mutual Auto Ins. Co., 746 S.W.2d 420 (Mo.App. 1988), which discusses Missouri law: " Strong public policy interests are protected through the use of notice provisions. For, the insured public will incur additional and unnecessary costs if insurers are forced to pay stale claims, as to which the insurer has not been accorded the opportunity to conduct an investigation while the facts are still fresh. This consideration is particularly acute in a situation such as the present case, where an unidentified, 'hit and run' or 'phantom' vehicle is involved." (Citation omitted.) Id., 423. The court notes, however, that the reasoning of the Missouri appellate court in Friend was subsequently criticized and narrowed in Tresner v. State Farm Ins. Co., 913 S.W.2d 7 (1995), where the Supreme Court of Missouri held that even in hit-and-run cases, a court must consider the facts to determine whether the insurer has suffered prejudice, rather than viewing the existence of prejudice as an irrebuttable presumption. After carefully reviewing cases such as Friend, the Tresner court explained that these cases " constitute a departure from the more general trend of Missouri cases which . . . hold that no presumption of prejudice exists and that the issue of prejudice is a question of fact to be determined by the trier of fact." Tresner v. State Farm Ins. Co., supra, 913 S.W.2d 15.
The defendant is correct that Murphy did not involve a notice requirement that is used to define a hit-and-run automobile. This factual distinction, however, is without legal significance because the reasoning of Murphy is still fully applicable here. Certainly, the insurer's interest in prompt investigation of a hit-and-run case is important, but Murphy requires that this interest be balanced against the insured's interest in avoiding a complete forfeiture of her insurance benefits through a strict application of a notice requirement. The balance struck by the Supreme Court in Murphy recognizes the insurer's interests, but does so by precluding an irrebuttable presumption that the insurer has suffered actual harm by the non-compliance. If the defendant is correct that the notice requirement has greater importance in a hit-and-run case, then the insurer may have an easier task proving that it suffered material prejudice by the non-compliance. Nevertheless, even if the notice requirement has more importance in this particular context, that does not mean that an insured should suffer a complete forfeiture of her insurance benefits when the insurer cannot meet this burden of proving that the noncompliance actually caused prejudice.
The court also appreciates the defendant's argument that by requiring GEICO to prove actual prejudice, the court is imposing a requirement not expressed in the policy itself. The defendant correctly states the general principles that an insurance policy is to be interpreted by the same rules that govern the construction of any written contract and that the clear and unambiguous terms of an insurance contract should be interpreted to give the language operative effect. The existence and importance of these rules of construction, however, were squarely addressed and balanced by the Supreme Court in Murphy . As the court explained, " [w]e are confronted, in this case, by a conflict between two competing principles in the law of contracts. On the one hand, the law of contracts supports the principle that contracts should be enforced as written, and that contracting parties are bound by the contractual provisions to which they have given assent . . . On the other hand, the rigor of this traditional principle of strict compliance has increasingly been tempered by the recognition that the occurrence of a condition may, in appropriate circumstances, be excused in order to avoid a 'disproportionate forfeiture.'" (Citations omitted.) Aetna Casualty Ins. Co. v. Murphy, supra, 206 Conn. 412-13. In weighing these competing principles of contract law, the court struck a balance by requiring the insurer to show that it suffered " material prejudice" by the non-compliance. Id., 417-18. This reasoning of the Supreme Court is fully applicable here.
For these same reasons, the defendant gains no advantage by the fact that its policy contains a " condition of suit" provision providing that GEICO cannot be sued unless the notice requirement is first satisfied. The defendant is essentially arguing that by adding a " condition of suit" provision in its automobile insurance policy, GEICO can not only define the court's jurisdiction, but it can also redefine controlling Connecticut law on the construction of such contracts. Indeed, this " condition of suit" provision presents a more extreme use of a notice requirement in an adhesion contract of insurance than the notice provision presented in Murphy . The defendant must concede that in other insurance cases not involving hit-and-run notice provisions, the insureds have the opportunity to respond to non-compliance claims by asserting contract defenses, such as impossibility or substantial compliance, and also by adjudicating whether the insurance company suffered actual prejudice. Cf. Tresner v. State Farm Ins. Co., 913 S.W.2d 7 (1995) (discussing contractual defenses to insurers' noncompliance claims.) Based on the defendant's argument, its insurance policy is so stringent that even the opportunity to adjudicate these issues is precluded. If the Supreme Court found it prudent to reject literal and strict compliance with the insurance policy in Murphy, it most definitely would apply its reasoning to reject such compliance in the present case involving a policy with even more strident provisions.
Lastly, the defendant places emphasis on Connecticut Regulation, § 38a-334-8(b)(1)(E). See n.3. As previously explained, this regulation authorizes insurers to include a " condition of suit" provision in automobile insurance policies. The defendant contends that this regulation either supports or requires dismissal of this action. This argument is misplaced because it misconstrues the scope of this regulation. Contrary to the defendant's apparent construction, this regulation does not state that insurance companies cannot be sued unless all provisions of an automobile insurance policy are met. This regulation merely states that such a provision may be added to automobile insurance policies. By placing the " condition of suit" provision in its policy, GEICO has done what the regulation has authorized. That provision may now be interpreted and applied under the contract law of this state. That law is controlled by the Supreme Court's decision in Murphy, and not by this regulation. Stated differently, this regulation says nothing about how a " condition of suit" provision should be interpreted or applied, and this court's construction of such a provision in a manner consistent with Murphy neither contravenes, nor violates the terms of this regulation.
The trial court's decision in Jarrett v. Government Employees Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV-13-6036638-S (June 4, 2014, Sommer, J.) [58 Conn.L.Rptr. 342, ], is a case on point rejecting the exact arguments presented by this very same defendant. In Jarrett, GEICO also argued that by authorizing an insurer to place a " condition of suit" provision in its automobile insurance policy, § 38a-334-8(b)(1)(E) prevented it from being sued by an insured who had failed to comply with the notice or cooperation provisions of the policy. In rejecting this argument, the court in Jarrett stated the following:
[I]t is undisputed that the plaintiffs were late in filing their claim and that they failed to comply with the relevant cooperation clause. These lapses may well affect the plaintiffs' ability to prevail on the merits of their claim. As evidenced by this state's appellate authority, however, the plaintiffs' failure to give notice and failure to cooperate do not deprive the court of jurisdiction. In fact, Supreme and Appellate Court precedent requires the court to make a factual determination on prejudice before it can decide whether the plaintiffs' failures are a valid enough reason to deny coverage . . . On top of that, the burden is on the defendant insurer to show that it suffered material prejudice as a result of a delay in notice or lack of cooperation . . . These determinations are not appropriately made at the motion to dismiss stage, as they will require a factual inquiry. This court confirms that it has subject matter jurisdiction to hear the case.(Citations omitted.) Id.
CONCLUSION
Therefore, for these reasons, the defendant's motion to dismiss is denied and the plaintiffs' objection to the motion is sustained. The defendant shall plead further to the complaint within thirty days. Practice Book § 10-8.
As we recognized in Murphy, the task of proving a negative is an inherently difficult one, and it may be further complicated by the opposing party's interest in concealment . . . Imposing this difficult task on the insured-the party least well equipped to know, let alone demonstrate, the effect of delayed disclosure on the investigatory and legal defense capabilities of the insurer-reduces the likelihood that the fact finder will possess sufficient information to determine whether prejudice has resulted from delayed disclosure. This uncertainty, which may prevent the court from meaningfully weighing the parties' real interests, compromises the principled balance that this court intended to strike in Murphy . To better achieve that balance, we now join the overwhelming majority of our sister states in adopting a rule that facilitates informed determinations of prejudice by incentivizing insurers to bring evidence of prejudice, should it exist, to the court's attention.(Citation omitted.) Arrowood Indemnity Co. v. King, supra, 304 Conn. 203.