October 16, 2018
to recover damages for the alleged negligence of the
defendant, and for other relief, brought to the United States
District Court for the District of Connecticut, and tried to
the jury before Shea, J.; verdict and judgment for the
plaintiff; thereafter, the court granted the defendant's
motion for judgment as a matter of law and rendered an
amended judgment thereon, from which the plaintiff appealed
to the United States Court of Appeals for the Second Circuit,
Leval, Raggi and Lohier, Js., which certified to this court a
question of law regarding whether the evidence was sufficient
to support the jury's finding that a continuing course of
conduct tolled the statute of limitations.
Massaron, pro hac vice, with whom was Christopher L. Jefford,
for the appellant (plaintiff).
Richard A. Simpson, pro hac vice, with whom, was Christopher
P. Kriesen, for the appellee (defendant).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
case, which comesto us on certification from the United
States Court of Appeals for the Second Circuit; see General
Statutes § 51-199b (d); requires us to consider the
applicability of our continuing course of conduct tolling
doctrine to a relationship between an insurance company and
its independent claims adjuster in the period after an
insured's claim has been fully paid. The plaintiff
insurer, Essex Insurance Company, brought a negligence action
against the defendant claims adjuster, William Kramer &
Associates, LLC, in the United States District Court for the
District of Connecticut, alleging that the defendant had
breached its duty to advise the plaintiff of a mortgage on
the insured property before the plaintiff issued the final
claim payment check to the insured for hurricane related
damage, thereby causing the plaintiff to incur liability to
the mortgagee. The plaintiff contended that the limitation
period for commencing an action was tolled until the
defendant discovered and produced a document in one of its
files that reflected the mortgagee's interest during the
course of litigation between the mortgagee and the plaintiff.
The District Court set aside the jury's verdict in favor
of the plaintiff on the ground that there was insufficient
evidence to support the jury's finding that a continuing
course of conduct tolled the otherwise untimely filed action.
See Essex Ins. Co. v. William Kramer & Associates,
LLC, United States District Court, Docket No.
3:13-cv-1537 (MPS) (D. Conn. June 8, 2016). The Second
Circuit concluded that Connecticut law regarding the contours
of this tolling doctrine is unclear and sought our advice as
to whether the evidence is legally sufficient to support the
jury's finding. See Evanston Ins. Co. v. William
Kramer & Associates, LLC, 890 F.3d 40
(2018). We conclude that the evidence is not
legally sufficient to toll the statute of limitations on this
District Court's decision set forth the following facts
that the jury reasonably could have found, which, for
context, we supplement with uncontested facts reflected in
the record certified to this court. In 2005, a hurricane
damaged properties in Florida, including four commercial
properties owned by IDM Management, Inc. The property
directly relevant to the present action is an apartment
complex, The Villas at Lauderhill, LLC, known as the
‘‘Villas.'' IDM had several layers of
insurance to protect itself against such a loss for its
properties: an initial layer of coverage from Aspen Specialty
Insurance Company; an excess layer from the plaintiff; and an
additional excess layer from a third insurer. The plaintiff
received notice from IDM that the loss might reach the
plaintiff's layer of coverage.
Aspen hired the defendant to adjust the loss to the IDM
properties for its initial layer of coverage, the plaintiff
agreed to hire the defendant as its independent adjuster for
the IDM properties. It is customary industry practice for
excess layer insurers to engage the same independent adjuster
as the initial layer insurer to allow all insurers to share
the information and work product generated in the original
plaintiff hired the defendant to perform a ‘‘
‘full adjustment' '' on the properties.
Although the parties did not execute a written contract, it
was understood that a full adjustment included inspecting the
property, estimating the value of the loss, working with IDM
to agree to an amount of loss, reviewing all coverage aspects
of the plaintiff's policy, identifying any potential
coverage issues, and reporting all elements associated with
the investigation and the claim measuring process.
Significantly, for purposes of the present case, it also
included identifying any mortgages on the insured property.
The need to identify such mortgages stemmed from the fact
that the mortgagee could have an interest in the insurance
the defendant's employees were involved with the
adjustment of IDM's claims: Dennis D. Martin, the
defendant's general executive adjuster who had solicited
the plaintiff's business, and Robert Oberpriller, the
defendant's general adjuster. Oberpriller did the work in
the field, traveling between his home in Minnesota and the
damaged properties in Florida. Because those properties were
approximately 250 miles from the defendant's closest
Florida offices, Palm Harbor and Tampa, and Oberpriller did
not work out of those offices, he kept a
‘‘working file'' with him.
April, 2006, IDM's retail broker sent a letter to the
defendant's Palm Harbor office addressed to Oberpriller,
requesting reissuance of a check from Aspen for one of
IDM's properties because the banks listed as payees were
incorrect. The letter provided the names of the correct
payees and noted, ‘‘I have also enclosed a copy
of the mortgagees showing Wachovia Securities for Park
Apartments for your files.''
enclosed document, captioned ‘‘schedule of
mortgagees, '' did not list mortgagees for just Park
Apartments, but for all four IDM properties. Intervest
National Bank was listed last as mortgagee for the Villas.
The letter from IDM's retail broker and its accompanying
schedule of mortgagees were placed in a file in either the
Palm Harbor or Tampa office (Aspen file).
though the defendant had the mortgagee schedule in its Aspen
file and was obligated to share information obtained while
working for Aspen, Oberpriller and Martin sent periodic
status reports to the plaintiff indicating that there were
mortgages on the other three IDM properties but that there
was no mortgage on the Villas. Just before the plaintiff issued
its final claim payment check to IDM, the plaintiff's
executive claims examiner contacted Oberpriller and Martin
specifically to inquire whether there was a mortgage on the
Villas. They replied that they had not received a response
from the policyholder in their most recent inquiry, but there
was ‘‘no indication'' that there was a
mortgage on the Villas. Because the plaintiff's executive
claims examiner was not licensed in Florida as an insurance
adjuster, he could not contact IDM directly on this matter.
As a result, when the plaintiff issued the final claim
payment check to IDM on March 19, 2007, exhausting IDM's
policy limit, it did not list Intervest as a payee or inform
Intervest that it was going to make its final claim payment.
defendant closed its file on the Villas claim on May 8, 2007.
At some point around that date, Oberpriller delivered his
working file on the IDM properties, consisting of two boxes
of documents, to the defendant's Palm Harbor office.
the plaintiff issued the final claim check, there were three
instances of contact between the defendant and the plaintiff
relating to the Villas. First, in August or September, 2007,
Martin contacted the plaintiff to inform it that the
insurance company holding the final excess layer of coverage
on the Villas had inquired as to whom the plaintiff had
issued its payment checks. In response, the plaintiff's
executive claims examiner contacted that insurer.
in 2009, after Intervest, the mortgagee on the Villas,
brought an action against third parties concerning their
failure to protect its mortgage interest (Intervest action),
Martin informed the plaintiff that Intervest had served the
defendant with a subpoena, demanding production of the
defendant's files relating to the Villas. Martin did so
because he believed that the defendant had an obligation to
inform the plaintiff if an issue came up that could affect
the plaintiff. The plaintiff offered to assist with the
defendant's production responsibility and had its
attorney who had assisted in the loss adjustment process open
her files to do so. The plaintiff also offered to cover the
defendant's expenses related to the Intervest action.
response to the 2009 subpoena, the defendant produced the two
boxes of documents that Oberpriller had returned to the
office after he completed the adjustment. It did not produce
the Aspen file containing the mortgagee schedule at that
December, 2010, Intervest filed an amended complaint in the
Intervest action, adding the plaintiff as a defendant; civil
process was served on the plaintiff in January, 2011. The
amended complaint alleged, among other things, that the
plaintiff knew that Intervest was a mortgagee on the Villas
and should have paid insurance proceeds to Intervest.
third contact between the parties occurred in 2012, when
Martin informed the plaintiff that he was being deposed in
the Intervest action. Thereafter, while Martin was preparing
for his deposition, his secretary came upon the Aspen file
when the offices were searched again, ‘‘just to
be diligent.'' Martin, in turn, disclosed to the
plaintiff the existence of the mortgagee schedule in that
file. The plaintiff's attorney prepared Martin for, and
attended, the deposition. Martin produced the schedule to
Intervest at his deposition. Thereafter, the defendant billed
the plaintiff for the time that Martin spent at his
deposition because, according to Martin, the defendant still
considered the plaintiff its ‘‘client''
and continued to have an ‘‘ongoing
relationship'' with the plaintiff.
basis of the discovery of the mortgage schedule in the Aspen
file and the concern that the defendant's knowledge of
this information could be imputed to it, the plaintiff
reevaluated its litigation strategy. Ultimately, the
plaintiff settled Intervest's claims against it for $1
million. By that time, the plaintiff had incurred
approximately $250, 000 in legal fees, between its own costs
and those incurred aiding the defendant.
record reveals the following additional procedural history.
On October 21, 2013, the plaintiff instituted the present
negligence action against the defendant. The defendant
contended that the action was time barred because it had been
filed beyond the applicable three year limitation
period; see General Statutes § 52-577; as
measured from the date the plaintiff issued the final check
to IDM in March, 2007. The case was submitted to the jury
with special instructions on that issue and on the continuing
course of conduct tolling doctrine invoked by the plaintiff
in response. The jury returned a verdict in favor of the
plaintiff, awarding damages for the settlement and legal fees
incurred. In its interrogatories, the jury found that the
action had been filed more than three years after the act(s)
on which it was based, but that the defendant had
‘‘engaged in a continuing course of conduct such
that [the defendant's] duty to [the plaintiff] continued
in a manner that tolled the statute of limitations for enough
time that [the plaintiff's] claim is not time barred . .
defendant renewed a prior motion for judgment as a matter of
law, previously reserved by the court, arguing that no
reasonable jury could find that the continuing course of
conduct doctrine applied under the facts of the case. The
District Court agreed, set aside the jury's verdict, and
rendered judgment for the defendant.
plaintiff appealed to the Second Circuit. That court agreed
with an observation made by the District Court that
Connecticut law did not provide clear guidance in this
context, but it questioned the District Court's
application of the case law to the facts. With the
parties' agreement, the Second Circuit sought our
guidance by way of certification on the following question:
‘‘Is the trial evidence legally sufficient to
support the jury's finding that the statute of
limitations was tolled at least through October 21, 2010,
[three years before the action was commenced and thus]
rendering the [plaintiff's] claim timely?''
Evanston Ins. Co. v. William Kramer & Associates,
LLC, supra, 890 F.3d 51. We agree with the District
Court's determination that the evidence was not legally
52-577 provides: ‘‘No action founded upon a tort
shall be brought but within three years from the date of
the act or omission complained of.''
(Emphasis added.) This court has explained that
‘‘the history of that legislative choice of
language precludes any construction thereof delaying the
start of the limitation period until the cause of action has
accrued or the injury has occurred. . . . The date of the act
or omission complained of is the date when the . . . conduct
of the defendant occurs . . . .'' (Citation omitted;
internal quotation marks omitted.) Certain Underwriters
at Lloyd's, London v. Cooperman, 289 Conn. 383, 408,
957 A.2d 836 (2008); see alsoRosato v.Mascardo, 82 Conn.App. 396, 407, 844 A.2d 893 (2004)
(characterizing § 52-577 as statute of repose). As such,
‘‘an action commenced more than three years from
the date of the negligent act or omission complained of is
[time] barred . . . regardless of whether the ...