Bocchino v. Nationwide Mutual Fire Insurance

716 A.2d 883, 246 Conn. 378, 1998 Conn. LEXIS 315

• Court: Supreme Court of Connecticut
• Decided: August 18, 1998
• Docket: SC 15660
• Status: Published

Opinions

Opinion

BORDEN, J.

In this action to recover proceeds pursuant to a homeowner’s insurance policy, the plaintiff appeals¹ from the judgment of the trial court in favor of the defendant. The trial court determined that the action had not been brought within one year of the date of the loss, as required by the policy, and that the accidental failure of suit statute, General Statutes § 52-592,² did not operate to save the plaintiffs action. The plaintiff claims that the trial court improperly concluded that § 52-592 (a) did not save the action. We affirm the judgment of the trial court.

The facts and procedural history are undisputed. The plaintiff, Joseph Bocchino, Jr., owned a dwelling and detached garage in Bridgeport. Through a homeowner’s insurance policy purchased from the defendant, Nationwide Mutual Fire Insurance Company, the plaintiff insured the property against fire and various other types of loss. One of the provisions of the insurance policy provided that “[n]o action can be brought unless . . . the action is started within one year after the date of loss or damage.” This provision of the policy is mandated by General Statutes §§ 38a-308 (a) and 38a-307.³

On November 16, 1991, the garage was damaged by fire, and the defendant paid the plaintiff for personal property loss but denied his proof of loss for the structure on the ground that it was “used in part or in whole for commercial business purposes” and, therefore, was not covered by the insurance policy. On November 6, 1992, within one year of the date of the loss, the plaintiff brought an action against the defendant for proceeds allegedly owed him pursuant to the policy. On June 24, 1994, however, that action was dismissed pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3,⁴ for failure to prosecute with due diligence. On March 30, 1995, within one year of the date of the prior dismissal but beyond one year from the date of the fire loss, the plaintiff brought this action, the substantive claims of which are, for all material purposes, identical to those contained in the plaintiffs first complaint. The plaintiff alleged that the action was timely by virtue of the provisions of § 52-592 (a).

The case was tried to an attorney trial referee, who found the facts and recommended judgment for the plaintiff. The plaintiff moved the trial court for judgment in accordance with the report, and the defendant filed certain exceptions and objections to the referee’s report. The trial court found dispositive the defendant’s claims that the plaintiffs action was barred by the one year limitation period under the defendant’s insurance policy and that, under controlling case law, the provisions of § 52-592 (a) do not operate to save the plaintiffs action. Accordingly, the trial court rendered judgment for the defendant. This appeal followed.

The plaintiff claims that the trial court improperly concluded that § 52-592 (a) did not save this action, because, the plaintiff maintains, the defendant’s insurance policy provision requiring that an action be brought within one year of the date of the loss was mandated by the standard fire insurance policy form delineated in §§ 38a-308 (a) and 38a-307, and was, therefore, a “time limited by law” within the meaning of the savings provision of § 52-592 (a). Recognizing that prevailing case law has interpreted § 52-592 (a) as not applying to such provisions, however, the plaintiff urges us to overrule that case law. We decline to do so.

This case is controlled by our prior decisions in Chichester v. New Hampshire Fire Ins. Co., 74 Conn. , 51 A. 545 (1902), and Vincent v. Mutual Reserve Fund Life Assn., 74 Conn. 684, 51 A. 1066 (1902). In short, Chichester and Vincent held that the accidental failure of suit statute applies only to actions barred by an otherwise applicable statute of limitations, and not to an applicable contractual limitation period, irrespective of whether that period was required by a statutory form for an insurance policy. Chichester v. New Hampshire Fire Ins. Co., supra, 513-14; Vincent v. Mutual Reserve Fund Life Assn., 688. Moreover, Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979), reaffirmed that holding, and, on several occasions since that decision, this court and the Appellate Court have further reaffirmed the limited application of the statute. See, e.g., Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990); Skibeck v. Avon, 24 Conn. App. 239, 243, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991); Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987).

In Chichester, the plaintiff previously had brought an action on a fire insurance policy within the one year provision of the policy, but that action was nonsuited after the plaintiff had introduced all of his evidence, and his appeal was dismissed. Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. 511. The plaintiff immediately — well within the one year provision of what is now § 52-592 (a) — commenced another action, and was met wdth the defense of the one year provision of the policy. Id. The plaintiff replied by relying on the accidental failure of suit statute. Id., 511-12. The trial court sustained the defendant’s demurrer to the plaintiffs reply, thus, in effect, validating the defense of the one year policy provision and rejecting the reliance on the accidental failure of suit statute. Id., 512.

This court affirmed the judgment of the trial court, holding that “[t]he provision in the policy sued upon requiring an action to be brought ‘within twelve months next after the fire’ does not operate as a statute of limitations; it is a part of the contract; the rights of the parties flow from the contract, and must be governed by the rules of law applicable to contracts. Such a provision in a contract of insurance is valid and binding upon the parties.” (Emphasis added.) Id., 512-13.

This court then specifically addressed, and specifically rejected, the claimed applicability of the accidental failure of suit statute, and the argument that it applied because the fire insurance policy, which contained the one year suit provision, was a standard policy mandated by our then insurance statutes. “The plaintiffs claim that [the accidental failure of suit statute] authorizes the bringing of this suit within one year after his nonsuit in the former action, is without foundation. That [statute] is an amendment to the statute of limitations and does not affect this contract.” (Emphasis added.) Id., 514. “The plaintiff also insists that Chap. 226 of the Public Acts of 1893, establishing a standard policy of insurance, in some way changes the agreement of the parties to such a policy into a statute of limitations. The Act clearly has no effect upon the contracts made in accordance with the form therein provided.” (Emphasis added.) Id. Subsequently, this court followed the rule of Chichester in Vincent v. Mutual Reserve Fund Life Assn., supra, 74 Conn. 686 (allegations that prior dismissed action on life insurance policy had been brought within one year policy provision “are immaterial”).

Our decisions in Chichester and Vincent cannot plausibly be read any way other than as holding that § 52-592 (a) does not apply to save a second action on an insurance policy brought beyond the applicable contractual limitation period but within one year of a timely, but unsuccessful, prior action on the same loss. Moreover, the decision in Chichester unequivocally concludes that the fact that the policy’s limitation period was mandated by a statutory standard fire insurance form is irrelevant. These precedents dictate the conclusion that the accidental failure of suit statute simply does not apply to the plaintiffs action in the present case. That statute applies to actions that would be time barred by an otherwise applicable statute of limitations, not to actions that are time barred by a contractual policy provision, irrespective of the fact that the policy provision was required by a statutory policy form.⁵

Furthermore, this reading of Chichester was reaffirmed in 1979 when this court decided Monteiro v. American Home Assurance Co., supra, 177 Conn. 281. Although the accidental failure of suit statute was not involved in that case, this court cited Chichester for the following propositions: (1) “Since a provision in a fire insurance policy requiring suit to be brought within one year of the loss is a valid contractual obligation, a failure to comply therewith is a defense to an action on the policy unless the provision has been waived or unless there is a valid excuse for nonperformance; and such a condition requiring suit to be brought within one year does not operate as a statute of limitations”) (emphasis added) id., 283; and (2) “This condition is a part of the contract so that it controls the rights of the parties under the contract and, hence, such rights must be governed by the rules of law applicable to contracts. ” Id. This court then went on to reject the plaintiffs claim, under contract law, that he was excused from compliance with the one year suit provision by his attorney’s disability. Id., 285-87.

Indeed, since Monteiro, both this court and the Appellate Court have reaffirmed our understanding that § 52-592 (a) operates to save actions that would be barred by otherwise applicable statutes of limitations. In Pintavalle v. Valkanos, supra, 216 Conn. 417, this court approved the interpretation of § 52-592 (a) by the Appellate Court in Marangio v. Shop Rite Supermarkets, Inc., supra, 11 Conn. App. 159-60, and we stated that “[although § 52-592 is a remedial statute and must be construed liberally ... it should not be construed so liberally as to render statutes of limitation virtually meaningless.” (Citations omitted; emphasis added.) See Skibeck v. Avon, supra, 24 Conn. App. 243 (same); see also Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 160, 464 A.2d 18 (1983) (“[T]he legislature has specifically delineated a number of instances where the statute of limitations will be tolled. See General Statutes §§ 52-592 through 52-595.” [Emphasis added.]).

Thus, our law has been clear since 1902, when we twice held that the accidental failure of suit statute applies to cases barred by a statute of limitations and does not apply so as to obviate an insured’s contractual obligation to commence an action within one year of the loss insured against. Furthermore, the limited application of § 52-592 has been reaffirmed by our appellate courts in 1979, 1983, 1987, 1990 and 1991. Pursuant to that body of law, any excuse for failing to bring an action within an insurance policy’s contractual period of limitation must have its source in contract law, not in § 52-592 (a).

Recognizing that Chichester is indistinguishable from the present case, the plaintiff urges us to overrule it. This we decline to do. We generally have adhered to the notion that “[i]n assessing the force of stare decisis ... we should be especially cautious about overturning a case that concerns statutory construction. . . .

“When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided. See, e.g., Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 291, 679 A.2d 925 (1996), and cases cited therein. More often, however, the legislature takes no further action to clarify its intentions. Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of a statute. See, e.g., Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 693, 674 A.2d 1300 (1996); Habetz v. Condon, 224 Conn. 231, 239 n.12, 618 A.2d 501 (1992); Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 817, 595 A.2d 341 (1991); Union Trust Co. v. Heggelund, 219 Conn. 620, 626-27, 594 A.2d 464 (1991); In re Jessica M., 217 Conn. 459, 472, 586 A.2d 597 (1991); State v. Marsala, 216 Conn. 150, 158, 579 A.2d 58 (1990); White v. Burns, 213 Conn. 307, 333-34, 567 A.2d 1195 (1990); Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987); Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987).

“In light of our role as surrogates for the legislature, proper respect for the separation of powers has led us to exercise prudence with respect to the overruling of cases that involve the construction of a statute. Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision. If . . . stare decisis is to continue to serve the cause of stability and certainty in the law — a condition indispensable to any well-ordered system of jurisprudence — a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. [W.] Maltbie, [Connecticut Appellate Procedure (1957) § 226], This is especially true when the precedent involved concerns the inteipretation or construction of a statute. ... A change in the personnel of the court never furnishes reason to reopen a question of statutory interpretation. . . . Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); see Neal v. United States, 516 U.S. 284, 295, 116 S. Ct. 763, 133 L. Ed. 2d 709 (1996); Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S. Ct 2363, 105 L. Ed. 2d 132 (1989); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196, 676 A.2d 831 (1996); General Electric Employees Federal Credit Union v. Zakrzewski, 235 Conn. 741, 744, 670 A.2d 274 (1996); see generally L. Marshall, ‘ “Let Congress Do It”: The Case for an Absolute Rule of Statutory Stare Decisis,’ 88 Mich. L. Rev. 177 (1989) (arguing that separation of powers justifies heightened rule of stare decisis for precedents involving statutory construction).” (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 681-84, 680 A.2d 242 (1996) (Peters, C. J., dissenting).

The present case does not present “the most cogent reasons”; id., 683; to overrule our prior interpretations of the accidental failure of suit statute, nor does “inescapable logic”; id.; require such a result. There is nothing bizarre or irrational about those interpretations. Compare Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 202, 708 A.2d 1371 (1998) (overruling prior interpretation of General Statutes § 37-9 [3] because it created “bizarre conflict” between civil and criminal provisions of usury law). Moreover, there is no showing that those interpretations were of recent origin and had disregarded persuasive legislative history regarding the statute’s purpose. Compare Conway v. Wilton, supra, 238 Conn. 681 (overruling prior interpretation of General Statutes § 52-557Í [3], Recreational Land Use Act, as applied to municipalities). In addition, in the intervening years since Chichester, the legislature has twice amended § 52-592 (a) without addressing our long-standing interpretations of it; see Public Acts 1979, No. 79-267; Public Acts 1982, No. 82-160, § 251; raising the presumption of legislative approval of those interpretations. See, e.g., Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 297-98, 695 A.2d 1051 (1997), and cases cited therein.

The most that can be said for the plaintiffs position, therefore, is that in 1902, when Chichester was decided, this court plausibly could have interpreted the accidental failure of suit statute as saving an action brought beyond the policy’s limitation period when a prior action commenced within that period had been non-suited, and when the provision containing the limitation period was mandated by statute.⁶ That is insufficient justification to sweep away the at least equally plausible interpretation that this court did adopt, twice, in 1902, and has reaffirmed repeatedly since, and which the legislature presumably has approved.

The judgment is affirmed.

In this opinion NORCOTT and KATZ, Js., concurred.

1 The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, and General Statutes § 51-199 (c).

2 General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if 1 he plaintiff is dead and the action by law survives, his executor or administrator, may commence anew action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .”

3 General Statutes § 38a-308 (a) provides in relevant part: “No policy or contract of fire insurance shall be made, issued or delivered by any 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. . . . Such policy shall be clearly designated on the back of the form as ‘The Standard Fire Insurance Policy of the State of Connecticut’ . . . .”

General Statutes § 38a-307, which sets forth the standard policy form, provides in relevant part: “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 commenced within twelve months next after inception of the loss. ...”

4 Practice Book § 251, now Practice Book (1998 Rev.) § 14-3, provides: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.

“If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to See. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”

5 The plaintiff attempts to distinguish Chichester on the grounds that, in contrast to the present case: (1) the first action of the plaintiff in Chichester had been nonsuited after the plaintiff had presented his evidence; and (2) that action had been nonsuited upon the request of the defendant — as opposed to the court’s own motion, pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3, which led to the nonsuiting in the present case. This attempt to distinguish Chichester is unpersuasive, however, because these aspects of the procedural history in the plaintiff’s first action were immaterial to this court’s conclusion that the accidental failure of suit statute was not applicable. On the contrary, the only aspects of the procedural history of the prior case that entered into the court’s analysis were “the fact that [the plaintiff] brought an action upon the policy within twelve months after the fire, [and] that in th[at] action [the plaintiff] was nonsuited for reasons not touching the merits of his cause . . . .” Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. 513. These same procedural characteristics are also the only material aspects of the plaintiff’s first action in the present case and, therefore, Chichester cannot be distinguished from the present case.

6 The plaintiff also cites decisions from the courts of other states that, in applying their states’ accidental failure of suit statutes in analogous situations, have concluded that the statute applies to contractual limitations periods. The plaintiff does not claim, however, that those cases constitute a majority trend. Indeed, we note that one prominent insurance law commentator has stated: “Under certain state statutes, it has been held that where the plaintiff suffers a nonsuit, he may bring a new action within one year of such nonsuit, if the original action was timely. . . . The majority of courts have held that the filing of one suit, which is later dismissed, does not toll the time for action upon an insurance policy, and a later suit, filed after the contractual period has expired has been held too late.” (Emphasis added.) 20A J. Appleman & J. Appleman, Insurance Law and Practice (1980) § 11618, pp. 490-94, citing Vincent v. Mutual Reserve Fund Life Assn., supra, 74 Conn. 686-87, and Chichester v. New Hampshire Fire Ins. Co., supra, 74 Conn. 512-13, as Connecticut authority. Moreover, in our view, how other courts may have interpreted their states’ accidental failure of suit statutes is immaterial. Those interpretations do not, and cannot, affect the meaning of our statute, which we have articulated consistently and repeatedly for ninety-six years.