May 14, 2010
MEMORANDUM OF DECISION
The issue raised by the motion for summary judgment in this uninsured motorist action is whether the defendant insurer, Allstate Property Casualty Insurance Company, waived or is equitably estopped to assert the contractual time limitation within which the plaintiff was required to bring suit.
Allstate Property Casualty Insurance Company will be known as "Allstate" and "the defendant" throughout this memorandum of decision.
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Rodriguez v. Testa, 296 Conn. 1, 6 (2010). Viewed in this light, the facts are as follows. On March 13, 2008, the plaintiff, Vincent Tufaro, by his then-attorney, Ellen L.F. Strauss, brought this action alleging that on September 3, 2004, the plaintiff, while seated in his motor vehicle and stopped for a red light, was rear-ended by a vehicle operated by Kelly N. Pradia-Manning. As a result of the collision, the plaintiff alleges that he sustained serious personal injuries. He further alleges that Pradia-Manning was uninsured at the time of the collision. The plaintiff sues the defendant seeking uninsured motorist benefits pursuant to an automobile insurance policy in effect at the time of the collision.
Other counsel subsequently appeared for the plaintiff in lieu of Attorney Strauss.
The defendant filed an answer and special defenses. The defendant's third special defense alleges that the plaintiff's action is barred by the three-year limitation of action set forth in the insurance policy. In November 2008, the plaintiff amended his complaint to allege that he requested that the defendant submit to binding arbitration on April 18, 2007, and that the plaintiff and the defendant had engaged in communications to resolve the matter without success.
Also in November 2008, the defendant moved for summary judgment because the plaintiff had brought his action beyond the policy's three-year limitations period for filing suit.
Part V of the insurance policy, providing for uninsured and underinsured motorist coverage, states: "No one may sue under this coverage unless there is full compliance with all policy terms. Any legal action against Allstate must be brought within three years from the date of the accident." As the accident occurred on September 3, 2004 and this action was not brought until March 13, 2008, this case was not commenced within the three-year period prescribed by the policy. The plaintiff responds that he made a request for binding arbitration within the three-year limitation period and that the defendant waived or is equitably estopped from asserting the three-year limitation period.
"The three-year contractual statute of limitations is authorized by General Statutes § 38a-336(g)(1)." Hodge v. Allstate Ins. Co., Superior Court, judicial district of Middlesex, Docket No. CV 03 0103118S (July 28, 2004, Aurigemma, J.)
The plaintiff suggests, without elaboration, that filing a demand for binding arbitration within three years of the accident satisfies the policy's requirement for filing a legal action within three years of the accident. The court disagrees.
"We begin our analysis with the general principles governing the construction of insurance policies. An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy . . . The policy words must be accorded their natural and ordinary meaning . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous.
"[A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous . . . The fact that the parties interpret the terms of a contract differently, however, does not render those terms ambiguous . . . Rather, whether a contract is ambiguous is a question of law for the court . . . Accordingly, we turn first to the language of the policy." (Citations omitted; internal quotation marks omitted.) Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 199-200, 901 A.2d 666 (2006).
The policy states: "Any legal action against Allstate must be brought within three years from the date of the accident." "In a general sense the word `action' means the lawful demand of one's right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides." Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 717, 49 A. 198 (1901), accord, Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 555, 888 A.2d 65 (2006); Metcalfe v. Sandford, 271 Conn. 531, 538, 858 A.2d 757 (2004); Isaac v. Mount Sinai Hospital, 210 Conn. 721, 730, 557 A.2d 116 (1989). "More accurately, it is defined to be a judicial proceeding, which, if conducted to a determination, will result in a judgment or decree." Black's Law Dictionary (8th ed. 2004). "It includes not only the usual civil action instituted by process but also proceedings initiated by petition . . . stipulation . . . or motion." (Internal quotation marks omitted.) Board of Education v. Tavares Pediatric Center, supra, 276 Conn. 555. In this context, the addition of the word "legal" to the term "action" underscores that the proceeding contemplated is one in a court of law.
In Dayco Corp. v. Fred T. Roberts Co., 192 Conn. 497, 472 A.2d 780 (1984), the court stated: "In Skidmore, Owings, Merrill v. Connecticut General Life Ins. Co., 25 Conn.Sup. 76, 197 A.2d 83 (1963), the court discussed whether an arbitration proceeding was an action for the purposes of the Statute of Limitations, General Statutes § 52-584. In a thoughtful and thorough analysis the court opined that arbitration proceedings do not occur in court, indeed that their very purpose is `to avoid the formalities, the delay, the expense and vexation of ordinary litigation.' In re Curtis-Castle Arbitration, 64 Conn. 501, 511, 30 A. 769 (1894). Id., 84. It further noted that these proceedings are not governed by our rules of procedure. Id., 85; In re Curtis-Castle Arbitration, supra. It looked to other jurisdictions which have held that arbitration proceedings were not actions. Temple v. Riverland Co., 228 S.W. 605, (Tex.Civ.App. 1921); Son Shipping Co. v. DeFosse Tanghe, 199 F.2d 687 (2d Cir. 1952). Finally, the court concluded that an arbitration proceeding is not an action within the meaning of that word as used in the Statute of Limitations. Skidmore, Owings, Merrill v. Connecticut General Life Ins. Co., supra, 83." Id., 502-03. In Dayco, the court held that an arbitration proceeding was not an action for the purposes of General Statutes §§ 52-57(d) and 52-112. See also Arute Bros., Inc. v. Dept. of Transportation, 87 Conn.App. 367, 865 A.2d 464, cert. denied, 273 Conn. 918, 871 A.2d 370 (2005) (holding that an arbitration proceeding is not an action to which General Statutes § 52-592, the Connecticut accidental failure of suit statute, applies).
General Statutes § 52-112 provides: "Insertion of Names of Partners in Process in Action by or Against a Partnership . . . (a) In commencing a civil action by or against a partnership, it shall not be necessary to insert the names of the partners in the process, provided the partnership name is stated. The plaintiff shall have the right, within the first three days of the court after the return day, to amend the process without costs by inserting the names of the partners . . . (b) An attachment, in any civil action against a partnership, of the private property of any of its members shall not be valid unless the name of the member is set forth in the process at the time of the "attachment."
At the time of the decision in Dayco Corp., General Statutes (Rev. to 1983) § 52-57(d) provided: "In actions against a partnership, service of process may be made by personally serving any process within the state upon any one of the partners or, if none of the partners are residents of the state, service may be made upon the Secretary of the State; provided, prior to the return date, the officer serving the writ shall mail a copy of the writ and the complaint by registered or certified mail, return receipt requested, to the last-known address of every partner not personally served. A statement of such mailing and receipt therefor shall be included in the officer's return."
Moreover, "[c]ontracts, especially of insurance, which more than most others are regulated by law, must be construed in the light of existing law and the legislative intent and purpose therein expressed." (Internal quotation marks omitted.) Williamson v. Massachusetts Bonding Ins. Co., 142 Conn. 573, 577, 116 A.2d 169 (1955). At the time the policy of insurance was issued, General Statutes § 38a-336(g)(1) provided: "No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident . . ." (Emphasis added.) Although the term "suit" can refer to a non-judicial proceeding, it typically refers to one in a court of law. R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 463-65, 870 A.2d 1048 (2005). Indeed, it has been held that "to `bring an action' . . . is synonymous with `commencing a suit.'" Hall v. Chaltis, 31 A.2d 699, 702 (D.C.Mun.App. 1943). That § 38a-336(g)(1) references a demand for arbitration as distinct from a "suit" reflects the legislative recognition that a demand for arbitration is not an "action" or a "legal action."
Finally, it is significant that the policy of insurance did not provide for the arbitration of uninsured motorist claims. It is elementary that "parties cannot be compelled to arbitrate matters other than those which they have agreed to arbitrate under the provisions . . . of their insurance policy." Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561 (1967). It is hardly likely that the statutory requirement that any legal action against the insurer be filed within three years from the date of the accident could be satisfied by the filing of a claim for arbitration for which the insurance policy did not provide.
The court holds that a claim for arbitration is not a "legal action" within the terms of the insurance policy and, therefore, the plaintiff failed to file a legal action against the defendant within three years of the accident, as required by the insurance policy.
Although the plaintiff failed to file a legal action against the defendant within three years of the accident, as required by the insurance policy, he claims that the defendant waived or is equitably estopped from asserting that policy provision against him.
"[E]stoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Internal quotation marks omitted.) Union Carbide Corp. v. Danbury, 257 Conn. 865, 873, 778 A.2d 204 (2001). "Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge." (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 247, 662 A.2d 1179 (1995).
"Waiver is the intentional relinquishment or abandonment of a known right or privilege . . . As a general rule, both statutory and constitutional rights and privileges may be waived . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so . . ."The conduct of the parties may be used to establish waiver." (Citations omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 57-58, 970 A.2d 656 (2009).
Strauss has filed a lengthy affidavit in opposition to the defendant's motion for summary judgment. While some of the contents of that affidavit do not "set forth such facts as would be admissible in evidence;" Practice Book § 17-46; the affidavit does aver the following admissible facts. On December 29, 2004, Strauss received two voicemails from Yvonne Coyle of Allstate. On December 30, 2004, Strauss spoke to Coyle by telephone. Strauss explained, as she would do repeatedly thereafter, that it was the practice of her office to wait until receiving all medical records, reports and specials before sending them out in one complete package rather than as piecemeal mailings. Allstate would, however, receive medical bills directly from medical providers.
On February 11, 2005, Kim Carpentier of Allstate wrote to Strauss requesting information such as the plaintiff's medical bills, medical reports, medical office notes and films, documentation of lost wages and all information indicating that Prada-Manning did not have insurance to cover the loss. On February 14, 2005, Strauss received another telephone call from Carpentier. Strauss again explained that it was the practice of her office to wait until they had all medical records and reports before sending them in a complete package rather than as piecemeal mailings.
On February 14, 2005, Carpentier wrote to Strauss requesting a date and time to take a recorded statement from the plaintiff. Carpentier also advised Strauss that there was no arbitration provisions in the uninsured portion of the Allstate policy.
On March 22, 2005, Carpentier came to Strauss' office and took a recorded statement from the plaintiff. At the conclusion of the plaintiff's statement, Strauss and Carpentier had a recorded conversation in which Carpentier stated that Allstate was still investigating whether the other vehicle was uninsured, but, that if Allstate determined that it was uninsured, "then the uninsured motorist will probably kick in." She further stated that "at this particular time what we just need to do is we just need to do our background to check, just to make sure."
On May 25, 2005, Carpentier wrote to Strauss stating that she was handling the plaintiff's uninsured motorist claim and to contact her at Strauss' earliest convenience to inform her of his treatment status.
On August 5, 2005, Strauss left a detailed message on Carpentier's voice mail updating her on the status of the plaintiff's treatment.
On January 9, 2006, Strauss received a telephone call and a letter from Linda Pelletier of Allstate saying that she had taken over the handling of the file and to forward all correspondence to her attention. Pelletier also said that in review the accident appeared to be a minor impact accident with $625.78 in damages to the plaintiff's rear bumper and that, therefore, she would expect the extent of duration of treatment to be consistent with the minor nature of the accident. Strauss explained to her that it was the practice of her office to wait until they had all medical records, reports and specials before sending them out in a complete package rather than as piecemeal mailings.
On January 23, 2006, Strauss faxed a letter to Pelletier informing her that the plaintiff had undergone back surgery on January 18, 2006, for injuries sustained in the collision and that the plaintiff would be making a claim under his automobile policy with Allstate. Strauss also stated that she would provide details, medical records and specials.
On June 15, 2006 and on July 19, 2006, Allstate refused to pay any more of the plaintiff's medical bills because it claimed the medical payment coverage had been exhausted.
On February 27, 2007, Strauss spoke with the office of Dr. Robert Dawe of Orthopaedic Specialty Group about scheduling a medical-legal conference following the plaintiff's surgery. Repeatedly, through October 2007, Strauss pressed Dr. Dawe's office for a final medical report and disability rating for the plaintiff.
On April 18, 2007, Strauss made a demand of the defendant for binding arbitration. The demand was made in a five-page letter outlining in detail the plaintiff's medical treatment, his surgery and his prognosis. The defendant never responded to the plaintiff's demand for arbitration.
On June 7, 2007, Strauss received a voice mail from Coyle inquiring into the status of Dr. Dawe's final medical report and disability rating. On June 8, 2007, Strauss left a detailed voicemail for Coyle regarding her progress in obtaining a final medical report and disability rating from Dr. Dawe.
On July 19, 2007, Strauss received a telephone call from Coyle in which they discussed the plaintiff's case and Strauss' attempts to get the final medical report and disability rating from Dr. Dawe so that Coyle would be able to evaluate the plaintiff's file. Because of that conversation, Strauss considered that Allstate was continuing to negotiate in good faith both on the claim in general as well as on behalf of her demand for arbitration. Strauss explained to Coyle that she was actively attempting to get Dr. Dawe's final report and disability rating, which Coyle said she needed to evaluate the plaintiff's claim.
On August 29, 2007, Strauss received a telephone call from Coyle regarding Strauss' efforts to obtain a final medical report and disability rating from Dr. Dawe. Because of that call, five days before the deadline for filing suit, Strauss considered that Allstate was continuing to negotiate in good faith. She believed that Allstate was attempting to resolve the claim without litigation.
On October 8, 2007, Strauss received a telephone call from Coyle concerning Strauss' progress in obtaining Dr. Dawe's final medical report and disability rating. Coyle explained that she was the processor and that the file would be evaluated by Susan Patenaude, an Allstate adjuster.
On October 9, 2007 Coyle sent Strauss a letter asking her to contact Coyle. On November 6, 2007, Strauss sent Allstate the remaining medical records including Dr. Dawe's final medical report in which he ascribed a 25 percent disability rating to the plaintiff.
On November 28, 2007, Strauss called Allstate to check on the status of the plaintiff's claim. On December 31, 2007, Strauss again called Allstate to inquire into the status of the plaintiff's claim. Strauss spoke with Coyle who transferred her call to Patenaude who told her that the plaintiff's file had been misplaced but that she would contact her when the file was located and evaluated.
Two months later, on February 26, 2008 at 10:28 a.m., Patenaude left a voicemail for Strauss stating that Allstate would no longer negotiate the claim because Strauss had not filed suit within the statute of limitations.
Carpentier has submitted an affidavit in support of the defendant's motion in which she states:
6. At no time did I make any settlement offers to plaintiff's counsel, Ellen Strauss, nor did I indicate to her that any such offer would be forthcoming.
7. At no time during any of my communications with Attorney Strauss did I indicate that Allstate was accepting her client's claim nor did I indicate to her or give her any reason to believe that Allstate was waiving any of its rights with regard to plaintiff's claims.
8. At no time during any of our communications was there any discussion regarding any limitations of actions contained within the Tufaro policy.
9. I did not make any representations to . . . Strauss . . . that Allstate would not enforce the rights or limitations contained within the policy, including the mandatory three year limitation period.
10. On or about March 22, 2005, I took the recorded statement of plaintiff . . . At no time during the statement or at any other time did I make a settlement offer to plaintiff or plaintiff's counsel or indicate that one would be forthcoming nor did I indicate that Allstate would be waiving any of its rights under the policy of insurance.
11. On February 14, 2005, I sent a letter to plaintiff's attorney . . . which clearly indicated that there was no arbitration provision in the uninsured motorist portion of her client's policy.
Coyle has also submitted an affidavit stating:
6. At no time did I make any settlement offers to plaintiff's counsel . . . nor did I indicate to her that any such offer would be forthcoming.
7. At no time during any of my communications with Attorney Strauss did I indicate that Allstate was accepting her client's claim nor did I indicate to her or give her any reason to believe that Allstate was waiving any of its rights . . .
8. At no time during any of our communications was there any discussion regarding any limitations of actions contained within the Turfaro policy.
9. I did not make any representations to the plaintiff's attorney . . . that Allstate would not enforce the rights or limitations contained within the policy, including the mandatory three year limitation period.
The plaintiff's claims of waiver and estoppel are informed by two appellate cases, Boyce v. Allstate Ins. Co., 236 Conn. 375, 673 A.2d 77 (1996), and Roy v. Metropolitan Property Casualty Ins. Co., 98 Conn.App. 528, 909 A.2d 980 (2006). In Boyce, the plaintiff sustained fire damage to a three-family house that he owned on May 11, 1987. The following day, a representative of the defendant insurer conducted a brief investigation and gave the plaintiff a check for $10,000 as part payment for the fire damage. Soon thereafter, the defendant stopped payment on the check upon learning that the plaintiff was suspected of causing the fire.
On May 15, 1987, the plaintiff signed a nonwaiver agreement that provided that the defendant's investigation into the cause of the fire did not operate as a waiver of the defendant's rights under the policy or as a waiver of any of the terms and conditions of the policy. On June 16, 1987, the plaintiff filed a proof of loss with the defendant, claiming extensive damages and requesting payment.
Subsequently, the plaintiff was arrested for arson. He pleaded nolo contendere and was found guilty of arson in June 1989. While the arson charge was pending, the defendant requested that the plaintiff submit to an examination under oath. The letter request stated that "[t]he noticing of your examination under oath in no way shall be construed to be a waiver by [the defendant] of its rights or defenses under the policy of insurance referred to above." The plaintiff did not appear for the scheduled examination. In January 1988, the defendant's counsel wrote to plaintiff's counsel asking when the plaintiff would be available for an examination under oath. The plaintiff provided dates in September and October 1989. Id., 378-80.
On November 16, 1989, the defendant notified the plaintiff that it was denying his claims. On January 25, 1990, over two and a half years after the fire the plaintiff brought an action on the policy. The defendant pleaded the statutorily mandated one-year limitation provision in the policy as a defense. "In response, the plaintiff asserted that the defendant should be estopped from raising the defense of the time limit on suit in the policy because, on the basis of the defendant's conduct, the plaintiff had reasonably believed that the defendant had waived its right to rely on that provision." Id., 380-81. The jury agreed, finding for the plaintiff, and the defendant appealed.
At the time, General Statutes (Rev, to 1995) § 38a-307 provided: "The standard form of fire insurance policy of the state of Connecticut . . . shall be as follows . . . `Waiver provisions. No permission affecting this insurance shall exist, or waiver of any provision be valid, unless granted herein or expressed in writing added hereto. No provision, stipulation or forfeiture shall be held to be waived by any requirement or proceeding on the part of this Company relating to appraisal or to any examination provided for herein . . .'
`Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months after inception of the loss.'"
The homeowner's insurance policy in Boyce v. Allstate Ins. Co., 236 Conn. 375, 673 A.2d 77 (1996), contained these provisions. Id., 377 n. 4.
On appeal, the defendant claimed that because the plaintiff did not commence suit within one year of the date of loss and because the defendant had not expressly waived that time limitation as required by the policy; see note 4, supra;, the defendant was entitled to judgment.
The court first held that despite the absence of an express waiver of the one-year limitation, the plaintiff could nonetheless pursue the action under the theory of equitable estoppel. In so holding, the court stated: "It would be unjust to foreclose an insured's ability to assert an estoppel theory because the insured has not obtained a written waiver when other actions of the insurance carrier lead the insured reasonably to believe that the statutory limitation on suit provision or any other provision of an insurance policy will not be enforced. See, e.g., Meadows v. Employers' Fire Ins. Co., 171 W. Va. 337, 341, 298 S.E.2d 874 (1982) (recognizing one year statutory suit limitation provision contained in fire insurance policy will be extended if insurance company by negotiations or other actions induces insured to delay filing suit)." Id., 384.
However, the court held that there was insufficient evidence to establish equitable estoppel. The court specifically held that there was no evidence of misleading conduct by the defendant. The court noted that the plaintiff had signed a nonwaiver agreement making him aware that the defendant intended to hold him to the terms of the policy during the investigation. In addition, the stop payment order on the check issued to the plaintiff should have put him on notice that the defendant seriously questioned coverage. Moreover, the defendant's letter, requesting that the plaintiff submit to an examination under oath, contained non-waiver language and reiterated the defendant's intention to enforce the terms of the policy.
The court dismissed the plaintiff's argument that the absence of nonwaiver language in the defendant's letter to him inquiring when he would give a statement under oath gave rise to an estoppel, stating "silence will not operate as [an] estoppel absent a duty to speak." (Internal quotation marks omitted.) Id., 387. "[U]nder the circumstances, due diligence at least required that the plaintiff make an inquiry of the defendant before assuming that the defendant did not intend to enforce the terms of its policy." Id., 387.
In Roy v. Metropolitan Property Casualty Ins. Co., supra, 98 Conn.App. 528, the plaintiff sustained a loss and damage to personal and real property located at her residence as a result of an explosion on December 15, 2001. The plaintiff had a homeowner's insurance policy with the defendant. The plaintiff made a claim against her homeowner's insurance policy with the defendant for payment of the loss and damages. By way of correspondence dated March 12, 2002, the defendant notified the plaintiff that the policy did not cover her personal property claim because the damages had not occurred as a result of a named peril listed in her policy. However, the defendant also issued a check for the "undisputed damages to the dwelling that resulted from the loss." (Internal quotation marks omitted.) Id., 530.
On July 19, 2004, the plaintiff commenced an action against the defendant for the unpaid portion of the loss. The defendant filed a motion for summary judgment on the basis that the plaintiff's claims were barred by the one-year limitation period in the insurance policy. The trial court granted the motion and the plaintiff appealed. On appeal, the plaintiff claimed that the defendant had waived the one-year limitation provision. "In support of this argument, the plaintiff relie[d] on her affidavit that she had filed with the court in opposition to the defendant's motion for summary judgment, in which she stated that her claim had not been paid in full and that she had not been notified within the one year period following the loss that the defendant was not going to cover her claim. Because the March 12, 2002 letter referred to `undisputed' claims, the plaintiff asserted that she assumed that the defendant was still investigating the disputed or remaining claims. The plaintiff further indicated in her affidavit that on September 14, 2004, she received a letter from the defendant indicating that it was still investigating her claim and that she was not notified until October 2004, that the defendant would not be honoring her claim. The plaintiff claim[ed] that because the defendant did not notify her that it was rejecting her claim within the one year period following her loss, it waived its right to enforce that contractual provision." Id., 531-32.
Although the Appellate Court held that the September 14, 2004 letter could not be relied on to excuse the plaintiff's failure to bring a timely lawsuit because the plaintiff received it after the time to file such a suit had elapsed, the court held that the communication "illuminate[d]" the March 12, 2002 correspondence from the defendant regarding the reference to "undisputed" claims. According to the court: "The September 14, 2004 correspondence . . . supports the plaintiff's belief that the defendant did not reject her claim within the year following the loss and that the defendant had, therefore, waived its right to enforce the one year limitation provision in the policy." (Emphasis added.) Id., 533. For this reason, the court concluded that there is a genuine issue of material fact as to whether the defendant waived its right to enforce the one-year provision in the plaintiff's homeowner's policy.
This court views the evidence through the prism of the summary judgment standard. "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 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 omitted.) Liberty Mut. Ins. v. Lone Star Industries, Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009).
Roy v. Metropolitan Property Casualty Ins. Co., supra, 98 Conn.App. 528, holds that where there is evidence that an insurer is still investigating a claim and evidence that the insurer did not reject the claim within the time limit for filing suit, a genuine issue of material fact exists as to whether the insurer waived its right to enforce the time limit. If this seems to be a thin reed on which to rest a claim of waiver, it finds support in an authoritative treatise. "It is clear that in order to enforce a suit limitation provision, an insurer must deny the claim with sufficient time for the insured to file suit within the period, but that if the acts or conduct of the insurer which led the insured to believe that the loss would be paid cease, and the claim is denied, while the insured still has a reasonable time within which to bring suit, there is no waiver of the limitation provision." 17 L. Russ T. Segalla, Couch on Insurance (3d Ed. 2005) § 238.67, p. 238-93.
The defendant's repeated inquiries, up to five days before the time for the plaintiff to file suit, into whether the plaintiff had completed treating, and whether Strauss had obtained a final report and disability rating from Dr. Dawe are evidence that the defendant was still investigating the claim. Moreover, since the defendant did not deny the claim before the expiration of the contractual time limit, there is a genuine issue of material fact as to whether the defendant waived the time limit under Roy v. Metropolitan Property Casualty Ins. Co., supra, 98 Conn.App. 528. It is, therefore, unnecessary for the court to determine whether the defendant is also equitably estopped to assert that time limit.
The defendant's motion for summary judgment is denied.