Superior Court of Connecticut,
Judicial District of New Haven.
Dominic SIMEONE et al.
v.
MIDDLESEX MUTUAL ASSURANCE CO.
No. NNHCV116018985S.
April 24, 2012.
ROBERT E. YOUNG, J.
Background
The defendant issued to the plaintiffs a “personal yacht policy,” [“subject policy”], effective June 15, 2009, insuring a 2003 Maxum 2900 SE watercraft. On October 4, 2009, the watercraft sank in Long Island Sound. Subsequently, the defendant denied the plaintiffs’ claim for loss under the policy. On March 16, 2011, the plaintiffs commenced this action, alleging that the “Defendant failed to indemnify the Plaintiffs for their loss” and seeking damages. The complaint was served on the defendant on that date and returned to court on March 23, 2011. The defendant has moved for summary judgment, asserting that the plaintiffs’ action is barred because they failed to commence the action within one year in accordance with the terms of the policy.
The policy provides, in pertinent part, “No legal action may be brought against us unless there has been full compliance with all the terms of the policy. The action must be started within one year after the accident causing the loss …”
The plaintiffs have filed an objection to the motion for summary judgment, claiming that the policy is a “fire insurance policy” for which the minimum time limitation to commence an action is eighteen months, pursuant to General Statutes § 38a–307. The plaintiffs also assert that there is a conformity clause in the policy which requires the policy to conform to this eighteen-month period. Additionally, the plaintiffs claim that, although at the inception of the policy, the time limitation was twelve months, upon passage of Public Act 09–164, S.1, which extended the fire insurance policy minimum limitation to eighteen months, the policy automatically conformed to this larger time period.
General Statutes § 38–307 mandates certain language for fire insurance policies, including the following: “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 eighteen months next after inception of the loss.”
The parties were heard by the court on April 9, 2012.
LEGAL STANDARD
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.” Practice Book § 17–49. In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party. Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998). “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the 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 … A material fact … [is] a fact that will make a difference in the result of the case …” (Internal quotation marks omitted.) Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2d 777 (2006).
“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.” Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). “[A] summary disposition … should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” (Internal quotation marks omitted.) Id., at 752. “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” Id.
“A genuine issue has been variously described as a triable, substantial or real issue of fact … and has been defined as one which can be maintained by substantial evidence.” (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). “[T]he ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Id., at 378–79. “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.” (Internal quotation marks omitted.) Id.
ANALYSIS
The threshold issue before the court is to determine whether there is a genuine issue of material fact as to the applicable statutory minimum time limit. The defendant asserts that the subject policy is a marine policy, which has a one-year limitation to commence an action, in accordance with General Statutes § 38a–290 . The plaintiffs assert that the subject policy is a fire insurance policy, governed by General Statutes § 38a–307.
General Statutes § 38a–290 states,
No insurance company doing business in this state shall limit the time within which any suit shall be brought against it or any claim shall be submitted to arbitration on (1) a fidelity or surety bond to a period less than three years from the time when the loss insured against occurs; (2) a construction performance bond to a period less than three years from the date on which the principal last performed work under the contract; (3) a construction payment bond to a period less than three years from the date on which the claimant last performed work or supplied material for which the claim is made; and (4) all other policies to a period less than one year from the time when the loss insured against occurs. This section shall not apply to suits and arbitration claims under the uninsured or underinsured motorist provisions of a motor vehicle insurance policy.
It is clear in reviewing the language of the subject policy that it has little resemblance to the standard form of fire insurance policy, the mandatory language of which is set forth in General Statutes § 38a–307. “The Connecticut legislature has enacted a standard form of fire insurance, with which all fire insurance policies issued in this state must conform. See General Statutes § 38a–308.” Wasko v. Manella, 269 Conn. 527, 535, 849 A.2d 777 (2004). General Statutes § 38a–307 requires that an insurance contract include specific standard language and provisions.
General Statutes § 38a–308(a) states, in relevant part, “No policy or contract of fire insurance shall be made, issued or delivered by an insurer or any agent or representative thereof, on any property in this state, unless it conforms as to all provisions, stipulations, agreements and conditions with the form of policy set forth in section 38a–307.”
Although the plaintiffs would have the “suit” language of the standard form, with its broader eighteen-month limitation, apply to the subject policy, the other provisions of the standard form are not to be found in the subject personal yacht policy. Neither has the plaintiff provided any evidence that the subject policy is a nonconforming fire insurance policy pursuant to § 38a–308(b).
General Statues § 38a–308(b) states, “Any policy or contract which includes, either on an unspecified basis as to coverage or for an indivisible premium, coverage against the peril of fire and substantial coverage against other perils need not comply with the provisions of subsection (a) hereof, provided (1) such policy or contract shall afford coverage, with respect to the peril of fire, not less than the substantial equivalent of the coverage afforded by said standard fire insurance policy, (2) the provisions in relation to mortgagee interests and obligations in said standard fire insurance policy shall be incorporated therein without change, (3) such policy or contract is complete as to all of its terms without reference to any other document and (4) the commissioner is satisfied that such policy or contract complies with the provisions hereof.”
Rather than a fire insurance policy, the subject policy comports with descriptions of marine insurance policies. Though neither Connecticut statutes nor case law definitively describe what constitutes marine insurance, federal case law provides persuasive guidance on the issue. In Acadia Ins. Co. v. McNeil, 116 F .3d 599, 601–02 (1st Cir.1997), the court defined marine insurance as “insurance with a subject matter specifically related to hazards encountered in maritime transportation, including the risks of river and inland navigation … Specifically, ocean marine insurance is insurance associated primarily with risks related to vessels or the maritime industry, and it extends to exposures in inland waterways … Inland marine insurance, by contrast, covers risks inherent in land transportation.” (Citations omitted.) When considering whether a yacht policy was liability insurance or ocean marine insurance, the court noted that “ocean marine insurance classically comprises both property and liability coverages”; id., at 602; thus, where the insurance policy provides coverage for property, liability, longshore and harbor workers’ compensation as well as medical payments and uninsured boaters, “[i]t is … readily evident that the protection afforded by the yacht policy is tied closely to the pleasure boat and matters arising out of its ownership, operation, and maintenance in specified waters. On that basis, the yacht policy constitutes an ocean marine policy within the federal court’s admiralty jurisdiction.” Id. Moreover, [a]lthough the policy includes a liability component, the losses covered are limited to maritime liabilities.” (Emphasis in original.) Id., at 603.
Several Connecticut cases reference marine insurance policies without defining them. See Smith v. Automobile Ins. Co., 108 Conn. 349, 143 A. 165 (1928); Rocco v. Continental Ins. Co., complex litigation docket at Stamford, Docket No. X05 CV 99 0171669 (May 13, 2003, Rogers, J.); Daley Moving & Storage, Inc. v. Northbrook Property & Casualty Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 98 0077321 (November 9, 1998, Pickett, J.T.R.).
A number of General Statutes provisions define various types of marine insurance, but, unlike the provisions for fire insurance, do not specifically describe the terms of such policies. General Statutes § 38a–664 provides in relevant part: “The provisions of sections 38a–663 to 38a–681, inclusive, shall apply to all insurance on risks or on operations in this state, except: … (4) insurance of vessels or craft, their cargoes, marine builders’ risks, marine protection and indemnity, or other risks commonly insured under marine, as distinguished from inland marine, insurance policies. Inland marine insurance shall be deemed to include insurance defined on or after July 1, 1969, by statute, or by interpretation thereof, or if not so defined or interpreted, by ruling of the Insurance Commissioner or as established by general custom of the business, as inland marine insurance …” The Connecticut Insurance Department, in its glossary of terms on its website, defines inland marine insurance as a “form of insurance designed to cover articles in transit as well as bridges, tunnels and other means of transportation and communication. Besides goods in transit (generally excepting ocean cargo), it includes numerous Floater Policies, such as those covering personal effects, personal property, jewelry, furs, fine arts, and other items.” General Statutes § 12–201(15) defines ocean marine insurance as “all insurance written within this state upon hulls, freights or disbursements, or upon goods, wares, merchandise and all other personal property and interests therein, in course of exportation from or importation into any country or transportation coastwise, including transportation by land or water from point of origin to final destination, in respect to any and all risks or perils of navigation, transit or transportation, and while being prepared for and awaiting shipment, and during any delays, storage, transshipment or reshipment incident thereto, including war risks and marine builder’s risks.”
Whether an insurance policy is a marine insurance policy has also been defined by the type of risk. “[A]n insurance policy’s predominant purpose, as measured by the dimensions of the contingency insured against and the risk assumed, determines the nature of the insurance.” Id. In Jeffcott v. Aetna Ins. Co., supra, 129 F.2d 584, the court considered the issue of whether the requirement that a yacht be laid up and out of commission for a period of time during the year destroyed the marine nature of the insurance policy. The court held that in marine insurance, “[t]he insurer assumes the risks of the perils of the seas to the vessel insured.” Id.
In the present case, the subject policy provides coverage for a watercraft within certain navigation limits and as a condition of a lay-up period. It provides coverage for property, liability, longshoremen’s and harbor workers’ compensation, medical payments and uninsured watercrafts. Moreover, the subject policy agrees to “cover the insured watercraft and tender while they are afloat, on shore, or being transported on a land conveyance.”
The evidence provided by the defendant demonstrates that the subject policy is a marine insurance policy, not a fire insurance policy. The plaintiffs have provided no evidence to rebut such a conclusion. As the subject policy is not a fire insurance policy, it is governed by the one-year time limitations of General Statutes § 38a–290 and the limitations of the policy itself.
A provision in an insurance policy requiring suit to be brought within one year of the loss is a valid contractual obligation, and the rights of the parties under the contract must be governed by the rules of law applicable to contracts. Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1977). The action was not commenced within that one-year time limitation and, therefore, the action is time-barred. There is no genuine issue of material fact. The defendant is entitled to summary judgment.
Since the court has found that the applicable time limitation is set forth in General Statutes § 38a–290, it does not consider the plaintiff’s claim that the change in time limitation in § 38a–307 by Public Act 09–164 caused conformity in the existing policy to the new and more expansive time limitation upon the act’s effective date.
ORDER
The defendant’s motion for summary judgment (105.00) is granted. The plaintiff’s objection to the motion (109.00) is overruled.
