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Carson v. Allianz Life Insurance Company of North America

Court of Appeals of Connecticut

August 21, 2018

ELIZABETH CARSON, TRUSTEE
v.
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA

          Argued March 15, 2018

         Procedural History

         Action to recover damages for, inter alia, conversion, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Peck, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          Michael J. Habib, for the appellant (plaintiff).

          Michael A. Valerio, with whom, on the brief, were Jonathan C. Sterling and John W. Herrington, for the appellee (defendant).

          DiPentima, C. J., and Elgo and Beach, Js.

          OPINION

          ELGO, J.

         The plaintiff, Elizabeth Carson, Trustee, [1]appeals from the summary judgment rendered by the trial court in favor of the defendant, Allianz Life Insurance Company of North America. On appeal, the plaintiff claims that the trial court improperly concluded that there was no genuine issue of material fact as to whether her action was barred by the applicable statute of limitations. Specifically, the plaintiff argues that fraudulent concealment on the part of the defendant's agent, David Faubert, and the continuing course of conduct doctrine tolled the applicable statute of limitations. We affirm the judgment of the trial court.

         The following facts and procedural history, as set forth by the trial court in its memorandum of decision, are relevant to the plaintiff's claims on appeal. ‘‘In the original lawsuit, commenced on March 25, 2008, [the plaintiff] sued the [defendant] and David Faubert, [claiming] damages based on allegations of conversion, fraud, violation of the Connecticut Unfair Trade Practices Act (CUTPA), and negligence.[2] On March 21, 2011, that action, Carson v. Allianz Life Ins. Co. of North America, CV-08-5018876-S, was dismissed by the court, Graham, J., in accordance with Practice Book § 14-3 for failure to prosecute with reasonable diligence. On August 2, 2011, the [trial court] sustained the defendant's objection to the plaintiff's motion to open the judgment of dismissal. On March 21, 2012, the plaintiff served [the defendant] [in] the present [action] utilizing [General Statutes] § 52-592, the accidental failure of suit statute.[3] The allegations of the [present] action are the same as the initial action except for the exclusion of David Faubert as a defendant.'' (Footnotes added.)

         The defendant filed a motion for summary judgment on December 18, 2014, claiming that the plaintiff's previously dismissed action could not be revived by § 52-592, because the dismissal did not fall within the remedial scope of the statute and the plaintiff's claims in the original action were time barred. In asserting that the plaintiff's action was time barred, the defendant argued that (1) any wrongful conduct of fraudulent concealment by Faubert may not be imputed to the defendant to toll the statute of limitations, (2) even if there is a basis for imputing Faubert's conduct to the defendant, the wrongful conduct concluded on March 22, 2005, and (3) the provisions of § 52-592, which limit actions to those commenced within the time limited by law, do not encompass equitable tolling. In her opposition, the plaintiff refuted these claims and argued that the applicable limitations period should be tolled until the time that she discovered Faubert's misconduct. The plaintiff cited to the ‘‘Agent Agreement'' between the defendant and Faubert, submitted by the defendant, as evidence of a ‘‘special relationship'' between the plaintiff and Faubert.[4] The plaintiff also argued that Faubert was an agent of the defendant, rendering the defendant vicariously liable for his misconduct.[5]

         On September 17, 2015, in its memorandum of decision, the court granted the defendant's motion for summary judgment and concluded that the plaintiff's original action was time barred, and therefore could not be revived by § 52-592.[6] As to whether the statute of limitations was tolled based on the theory of fraudulent concealment, the court stated, ‘‘[a]ssuming arguendo that [Faubert] fraudulently concealed the facts necessary to establish the plaintiff's cause of action delaying the complaint, and this wrongful conduct was imputed to the defendant, any fraudulent concealment by [Faubert] ended on March 22, 2005, when he confessed his actions to law enforcement.''

         As to the continuing course of conduct doctrine, the court stated, ‘‘[e]ven assuming for the purpose of this motion for summary judgment that [Faubert] did have a fiduciary relationship with the plaintiff in a professional capacity, that relationship ended no later than March 22, 2005. [Faubert] ceased acting in any professional capacity for, or with any fiduciary relationship toward, the plaintiff as of March 22, 2005, when he confessed his wrongful conduct against the plaintiff to law enforcement and was arrested. The plaintiff has not provided evidence to create a genuine issue of material fact in relation to any wrongful acts or omissions of the defendant or [Faubert] after March 22, 2005, and thus, the statute of limitations began to run as of that date.'' Accordingly, the court rendered summary judgment in favor of the defendant, and this appeal followed.

         As a preliminary matter, we set forth our standard of review. ‘‘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 . . . entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . .

         ‘‘[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary.'' (Internal quotation marks omitted.) Flannery v.Singer Asset Finance Co., LLC, 128 Conn.App. 507, 512, 17 A.3d 509 (2011), aff'd, 312 Conn. 286, 94 A.3d 553 (2014). ‘‘[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period. . . . When the plaintiff asserts that the limitations period has been ...


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