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Mistrial dismissed | Zalma on insurance



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Michelle J. Pollard, appealed the summary judgment granted by the trial court in favor of the defendant, Geico General Insurance Company, on the plaintiff’s complaint seeking to recover underinsured motorist benefits. On appeal, the plaintiff argued that the trial court erred in holding that the accidental omission statute, General Statutes § 52-592(a), did not apply to revive her otherwise time-barred cause of action.

IN Michelle J. Pollard v. Geico General Insurance Company, no. AC 44560, Court of Appeals of Connecticut (Sept. 6, 2022), the defendant argued that judgment was properly entered and asserted, because an alternative plea alleged that the plaintiff’s cause of action was barred because she failed under the terms of the parties’ insurance. to start the trial in time or to invoke the insurance’s fee provision.

FACTS

Plaintiff alleged that on or about September 17, 2012, she was rear-ended by a vehicle driven by Norma Rivera while driving her car in a drive-thru lane at a fast food restaurant in Hartford and as a result suffered injuries and incurred healthcare costs. She alleged that Rivera’s insurer paid her the full liability limit under Rivera’s auto insurance so that coverage under Rivera’s policy was exhausted on or about June 9, 2016. She further alleged that she had not been adequately compensated by Rivera’s insurance and that, pursuant to insurance between her and the defendant, the defendant was required to provide her with underinsured motorist benefits but Geico refused.

In April 2019, the plaintiff sued Geico over the inadvertent lawsuit. The defendant filed a motion to strike counts two, three and four of the complaint, which the court granted on February 13, 2020, leaving only count one, where the plaintiff alleged that the defendant breached the agreement between the parties by failing to provide her with underinsured motorist benefits in in connection with the collision in September 2012 at the fast food restaurant.

Geico moved for summary judgment, arguing that there was no genuine issue of material fact and that:

  1. Plaintiff could not bring the present action for underinsured motorist benefits due to the inadvertent failure of the due process statute because the failure to appear in the 2016 action was for disciplinary reasons and was not a matter of form and
  2. the plaintiff failed to file an action within three years from the date of the accident and failed to invoke the premium provision of the insurance contract by giving the defendant proper written notice of a claim for underinsured motorist benefits and therefore this action is barred.

the court, Cobb, J., granted the defendant’s motion for summary judgment on the first count after finding that there were no genuine issues of fact and that the inadvertent tort statute did not apply as a matter of law.

ANALYSIS

According to Connecticut General Statutes § 38a-336(g)(1), “[n]o insurance company carrying on business in this state may limit the time within which an action may be brought against it … the . . . provisions for underinsured motorists in an automobile liability policy for a period of less than three years from the date of the accident, provided that, in the case of an underinsured motorist claim, the insured may toll any applicable statute of limitations (A) by notifying such insurer before the expiration of the applicable statute of limitations, in writing, of any claim the insured may have for underinsured motorist benefits and (B) by commencing an action or requiring arbitration under the terms of the policy not later than 180 days from the date of exhaustion of the limits of liability under any bodily injury liability for automobiles or automobile insurance applicable at the time of the accident through settlements or final judgments following any appeals.”

It was undisputed that the plaintiff sued for underinsured motorist benefits outside the three-year statute of limitations.

There was no genuine issue of material fact that plaintiff failed to give defendant written notice of her intent to pursue an underinsured motorist claim as required by subsection (a) of the premium provision of the policy. The October 1, 2012 letter, sent from John A. Sodipo of Jacobs & Sodipo, LLC, to the defendant, which the plaintiff claimed allowed her lawsuit to move forward, but the letter contained no reference to a potential claim for underinsured motorist benefits.

The trial court determined that the notice was insufficient to satisfy the requirements of the policy, and that the notice requirement of the policy made specific reference to a potential claim for underinsured motorist benefits. This language clearly and unequivocally requires the insured to inform its insurer not only that it is making a claim, but rather that it is making a claim for underinsured motorist benefits. The insurance company must be notified in writing that there is a possibility that a claim will be made for underinsured motorist coverage.

In the instant case, the court concluded that there are no genuine issues of material fact regarding the plaintiff’s failure to comply with part (a) of the policy’s premium provision. The October 1, 2012 letter only stated a potential claim, generally, and did not specifically state that the plaintiff may have a claim for underinsured motorist benefits.

Geico met its burden for summary judgment with respect to both the three-year statute of limitations, which was undisputedly not met, and the statute’s tolling provision, the tolling provision in the policy requires. both that the plaintiff (1) notifies the defendant in writing within three years of the date of the accident that she may be entitled to underinsured motorist benefits and (2) initiate an action within 180 days of the date of consumption.

As both requirements of the toll provision must be met, failure to meet either requirement renders the toll provision inapplicable.

Accordingly, Geico, showing that the October 1, 2012 letter did not meet the requirements of a written notice of a claim for underinsured motorist benefits under subsection (a) of the policy’s fee provision, was entitled to summary judgment. .

The granting of the motion for summary judgment on the ground that there were no genuine facts that the plaintiff failed to file an action within three years and failed to pay this statute of limitations under the policy was obvious and necessary.

There is no excuse to sit on your rights for underinsured motorist coverage for more than six years. Simply put, an insured loses the right to the benefits of a policy by sitting on those rights after the private limitation provision in the policy and by not following the law that allows you to pay the statute of limitations.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims attorney and more than 54 years in the insurance industry. He is available at and zalma@zalma.com.

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