PINE v. SANABRIA, No. CV-02-0468422 S (Oct. 3, 2005)

HOWARD F. ZOARSKI, JUDGE TRIAL REFEREE.

The defendant SafeCo Insurance Company filed a motion for summary judgment which claimed the plaintiff failed to toll the three-year statute of limitations, and failed to comply with the provisions of § 38a-336(g) of the Connecticut General Statutes and the policy of insurance.

This action arises out of an accident on September 10, 2000 when the defendant Sanabria caused his vehicle to collide with the vehicle of the plaintiff. On June 17, 2003 the plaintiff signed a release of his claim against the defendant Sanabria. A check in the amount of $25,000.00 and dated November 18, 2003 was sent to counsel for the plaintiff.

On February 3, 2004 plaintiff commenced suit against SafeCo Insurance Company seeking to recover underinsured benefits under the policy of the plaintiff.

Both § 38a-336(g) of the Connecticut General Statutes and the provisions of the insurance policy require the insured to make a claim for underinsured coverage within three years of the accident date. The insured may toll the limitation period by (1) notifying the insurer in writing prior to the expiration of the period of insured's claim for underinsured motorist benefits or (2) by commencing suit within 180 days after the date of exhaustion of insurance coverage of the tortfeasor.

The plaintiff has argued SafeCo Insurance Company had actual oral notice within the limitation period which expired September 10, 2003, and that therefore was sufficient to toll the limitation period under § CT Page 13379 38a-336(g)(1).

On September 9, 2005 the motion for summary judgment was granted. The court relied on the recent decision of Dorchinsky v. Windsor Insurance Co., 90 Conn.App. 557, 877 A.2d 821 (2005). That decision stated that written notice must be given to the insured within the three-year period of any claim which the insured may have for underinsured benefits. The plaintiff had failed to give such written notice prior to September 10, 2003. This decision also found there would be no waiver or estoppel by the insurer unless there was an intentional relinquishment or abandonment of its right to defend as established by the statute or policy provisions.

On the motion for summary judgment this court found no written notice was given by the plaintiff within the three-year limitation period. Furthermore, no suit was commenced within 180 days of the settlement of the tortfeasor's claims. Nor was there any waiver by the insurer as a result of actual oral notice.

For the foregoing reasons the motion of the plaintiff to reargue the decision of the motion for summary judgment is denied.

Howard Zoarski

Judge Trial Referee CT Page 13380