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Bell v. Safeco Insurance Co. of Illinois

Superior Court of Connecticut, Judicial District of Hartford, Hartford

October 7, 2014

Emily Bell
v.
Safeco Insurance Company of Illinois

MEMORANDUM OF DECISION

Sheila A. Huddleston, Judge.

In this action for underinsured motorist benefits, the defendant insurer asserted as a special defense the claim that the plaintiff failed to commence this action within the applicable policy's time limits. The plaintiff responded in her reply that the defendant had waived or was estopped from relying on the policy's time limitations because two adjusters from the company had told the plaintiff's counsel that the limitation period for bringing suit was one year after the exhaustion of the tortfeasor's policy limits. The parties appeared on June 18 and 19, 2014, for a bifurcated court trial solely on the issue of the special defense. For the reasons stated below, the court concludes that the defendant did not waive and is not estopped from asserting the policy's limitation period. The parties agreed that the court should also decide an issue regarding an alleged ambiguity in the policy that was raised but not decided in the context of an earlier summary judgment motion. The court concludes that the policy is not ambiguous, and accordingly, judgment is rendered for the defendant.

I

Factual and Procedural History

On January 3, 2008, the plaintiff, Emily Bell, was a passenger in her mother's car when the car was struck from behind by Lori Ann Nadeau. When the accident occurred, Nadeau's vehicle was insured with the Safety Insurance Company with policy limits of $100, 000 per individual. The plaintiff, a college student, was insured under her parents' automobile insurance policy, which provided, among other coverages, $25, 000 for " PIP" or personal injury protection benefits, and $500, 000 in uninsured/underinsured motorist coverage. Her parents' policy was issued by the defendant, Safeco Insurance Company of Illinois (Safeco). On January 14, 2008, the plaintiff's mother contacted Safeco to determine which insurer should cover the plaintiff's medical bills. Safeco opened a claim file for the case, and a Safeco adjuster advised the plaintiff's mother that her policy provided $25, 000 in coverage for medical expenses. Safeco began to pay the plaintiff's medical expenses and monitored the case to determine whether it had exposure to liability under the underinsured motorist provisions of the policy.

In 2009, the plaintiff retained the law firm of Hersh & Crockett to represent her, and a suit was commenced against the tortfeasor only. Attorney Dennis Hersh of Hersh & Crockett sent a letter to Safeco in December 2009, advising it of a potential claim under the underinsured motorist provision of the policy and requesting a copy of the policy. There is no record that a copy of the policy was ever sent to him.

In late February 2011, the plaintiff agreed to settle her claim against the tortfeasor for the tortfeasor's policy limits of $100, 000, and payment of the claim was received around March 15, 2011. On March 4, 2011, Attorney Hersh spoke with Safeco adjuster Aaron Pickel by telephone and made a demand of $400, 000 in underinsured motorist benefits. (Ex. G, entry dated 03-04-201110:32.) On the same day, Pickel sent a letter to Hersh & Crockett, acknowledging the plaintiff's demand and requesting her medical records. (Ex. C.) Pickel's letter said nothing about the policy's time limits. At the time, the plaintiff was still being treated for her injuries and there was a question as to whether surgery would be required.

There were intermittent communications between Safeco and the plaintiff's attorneys between March 2011, and July 2011, primarily consisting of Safeco's requests for medical records and the responses to those requests. In May 2011, responsibility for the claims file was transferred from Aaron Pickel to a senior claims adjuster, Robert Wood, because of the level of the potential exposure on the claim. Wood sent a letter to Hersh & Crockett on May 27, 2011, advising that he was now the adjuster for the claim and seeking additional medical information. He also stated that he believed the maximum benefits available under the underinsured motorist provision was $375, 000 because the $25, 000 in medical benefits would be deducted. (Ex. H.) He sent another letter to Hersh & Crockett on June 28, 2011, following up on his request for additional information. (Ex. I.) On July 13, 2011 he had a telephone conversation with someone at Hersh & Crockett regarding the status of the plaintiff's treatment and was told that the plaintiff would not have surgery. (Ex. G, entry dated 07-13-2011 7:49.) His notes indicate he spoke with a paralegal; at trial, Attorney Cynthia Crockett of Hersh & Crockett testified that she had spoken to Wood in July.

On November 4, 2011, Attorney Crockett attempted to contact Wood and found that his phone number was out of service. She was advised that a new adjuster was on the file. She wrote a memo to the plaintiff's file (Ex. A) asserting that she had left several messages for Wood over the past months and had been led to believe that they were going to resolve the matter before the limitations period ran. This memo does not specifically mention any representations by Wood about the length of the limitations period. (Ex. A.) On January 6, 2012, a new adjuster on the file, Richard Colaluca, advised Attorney Crockett that Safeco had determined that the limitations period had run without suit being filed. On the same day, Attorney Crockett wrote another memo to the plaintiff's file, asserting that she had spoken with " the adjuster" on the day the third-party case settled. She wrote that she had asked the adjuster how he wanted to handle the matter, by arbitration or suit, and was told that they had a year under the policy and would settle it before one year. (Ex. B.)

In January 2012, the plaintiff, through her attorneys at Hersh & Crockett, commenced this action. The first count of the plaintiff's amended complaint alleges that she is entitled to recover underinsured motorist benefits that Safeco has not paid. The second count alleges that Safeco violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a by committing unfair insurance settlement claims practices in violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815. Safeco asserted several special defenses, the first of which was that the plaintiff failed to commence this action within the time limits stated in the policy.

Safeco moved for summary judgment on this special defense. In opposition, the plaintiff asserted a claim of waiver or estoppel and further argued that the policy language was ambiguous and could not be enforced against her. Safeco argued, in reply, that the plaintiff had not pleaded waiver or estoppel in response to the special defense. Safeco also moved to disqualify the plaintiff's attorneys, arguing that they would be necessary witnesses at a trial on the issue of estoppel. Before that motion was adjudicated, the plaintiff's current attorney filed an appearance in place of Hersh & Crockett.

The court (Wiese, J.) denied the motion for summary judgment on the ground that there were genuine issues of material fact in dispute with respect to the claim of waiver or estoppel. The court did not address the alleged ambiguity of the contract. The plaintiff subsequently moved to amend her reply to Safeco's first special defense to assert a claim of waiver or estoppel. Safeco initially objected to the late amendment but subsequently withdrew its objection to late assertion of the estoppel claim. It did not withdraw its objection to the claim of waiver, contending that no evidence of waiver had been introduced.

The case was bifurcated at the plaintiff's request and the issue of estoppel and waiver was tried to the court on June 18 and 19, 2014. The parties subsequently agreed that the issues submitted for the court's decision were the factual findings and legal conclusions regarding waiver and estoppel, and if no waiver or estoppel was found, whether the policy's limitation provision barred the action. The parties agreed that, with respect to the alleged ambiguity of the policy's ...


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