Zotta v. Burns

511 A.2d 373, 8 Conn. App. 169, 1986 Conn. App. LEXIS 1061
CourtConnecticut Appellate Court
DecidedJuly 15, 1986
Docket3852; 3853
StatusPublished
Cited by62 cases

This text of 511 A.2d 373 (Zotta v. Burns) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zotta v. Burns, 511 A.2d 373, 8 Conn. App. 169, 1986 Conn. App. LEXIS 1061 (Colo. Ct. App. 1986).

Opinion

Borden, J.

The defendant, the commissioner of transportation, appeals from the trial court’s judgments in favor of the plaintiff. In these combined actions, the plaintiff claimed damages for personal injuries and for property damage arising out of a one car accident on a state highway. The principal issue in these appeals is whether the trial court erred by finding as a matter of law that the plaintiff had provided the defendant with sufficient notice to meet the requirements of General Statutes § 13a-144.1 We find error.

Certain facts are not in dispute. On March 23,1982, the plaintiff was injured as a result of a one car accident in which his automobile was also damaged. The accident occurred on Camp Meeting Road in Bolton. One month later, the plaintiff’s attorney2 purported to give the requisite statutory notice of his injuries and losses to the defendant. See footnote 1, supra. This notice, however, described the place of the accident as route 6 in Bolton instead of Camp Meeting Road, and failed to state the time of the accident.

[171]*171After receiving this notice, an employee of the defendant wrote to the plaintiff, on May 6,1982, advising him to submit all further correspondence to the defendant’s insurance company. Within the ninety day notice period required by General Statutes § 13a-144, the plaintiff’s attorney sent the following items to the defendant’s insurance company: the police accident report, an investigator’s diagram of the area, photographs of the accident site, and a cover letter. The police accident report properly described the time and place of the accident. The diagram and photographs, however, incorrectly identified the accident site as route 6. The cover letter made no reference to the time or place of the accident, nor did it state that it was a supplement to or substitute for the original notice of the plaintiff’s claims. The defendant does not dispute that his insurance carrier received these items within the statutory ninety day notice period.

The plaintiff’s personal injury complaint was issued on September 14,1982, and the property damage complaint was issued on June 22, 1983. Both complaints alleged that the accident occurred on route 6 and that statutory notice was provided to the defendant on April 21, 1982. The defendant moved for summary judgment in both actions on the ground that the notice was defective as a matter of law. Attached to these motions was, inter alia, a map and a sworn affidavit of a department of transportation official which indicated that Camp Meeting Road and route 6 are two distinct and separately maintained highways. The plaintiff argued, inter alia, that the items sent to the defendant’s insurer were sufficient as a matter of law to meet the statutory notice requirements and that the defendant should be estopped from challenging the validity of that notice because the defendant’s employee had informed the plaintiff to submit all correspondence to [172]*172the insurance company. The trial court, Hale, J., denied the motions for summary judgment.3

At trial, the plaintiff presented his cases without introducing any evidence regarding the notice given to the defendant. The defendant moved for directed verdicts at the close of the plaintiff’s cases and, later, after all the evidence had been introduced. After the plaintiff rested, the trial court, Allen, J., held a hearing on the notice issue outside of the jury’s presence in order to preserve this issue for purposes of appeal. The plaintiff marked three items as exhibits for identification: the original letter of notice dated April 21, 1982, the defendant’s letter of May 6,1982, to the plaintiff advising him to forward all correspondence to the defendant’s insurer, and the cover letter from the plaintiff to the defendant dated May 24,1982. The trial court held that, as a matter of law, the plaintiff had provided the defendant with sufficient notice to meet the requirements of General Statutes § 13a-144. Consequently, the trial court denied the defendant’s motions for directed verdicts and charged the jury that as a matter of law the plaintiff had provided adequate notice to the defendant. The defendant excepted to the charge to the jury.

The jury returned verdicts for the plaintiff and judgments were rendered accordingly. The trial court denied the defendant’s motions for judgment notwithstanding the verdicts and to set aside the verdicts, and these appeals followed. The defendant first claims that because the evidence of statutory notice was insufficient, the trial court erred by refusing to direct ver[173]*173diets, by failing to render judgments notwithstanding the verdicts, and by denying his motions to set aside the verdicts. The plaintiff concedes that the original notice of April 21, 1982, to the defendant was inadequate but argues that the other items, which were sent to the defendant’s insurer, were sufficient as a matter of law to provide the defendant with notice. In addition, the plaintiff asserts that because the defendant advised the plaintiff to forward all correspondence to the insurer, the defendant should be estopped from challenging the validity of that notice. We disagree.

General Statutes § 13a-144 created a cause of action “wholly unauthorized by the common law.” Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958). “In view of the fact that Section [13a-144] is in derogation of the common law and that during its successive reenactments a saving clause has not been inserted, the statute must be strictly construed.” Wright & Fitzgerald, Conn. Law of Torts (2d Ed.) § 95, p. 224; cf. General Statutes § 13a-149 (notice savings clause in municipal highway liability statute). “The giving of the statutory written notice of injury is a condition precedent to the cause of action, whether the action is against the state or any subdivision thereof.” Wethersfield v. National Fire Ins. Co., supra.

Ordinarily, the question of the adequacy of notice “is one for the jury and not for the court, and the cases make clear that this question must be determined on the basis of the facts of the particular case.” Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947). Before submitting the question to the jury, however, the trial court must first determine whether, as a matter of law, a purported notice “patently meets or fails to meet”; id; the statutory requirements. In the present case, the trial court correctly removed the threshold question of the validity of the statutory notice from the jury. The court erred, however, by determining that the notice [174]*174in question was legally sufficient to meet the requirements of General Statutes § 13a-144.

General Statutes § 13a-144 requires, inter alia, that notice properly describing the place where the alleged injury occurred “[be] given in writing within ninety days thereafter to the commissioner.” As the plaintiff concedes, his first purported notice, which was timely sent to the defendant, failed properly to describe the place where the accident occurred. Similarly, the items subsequently forwarded to the defendant’s insurer failed properly to describe the place where the accident occurred. At best, those items were ambiguous with respect to the description of the accident location.

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Bluebook (online)
511 A.2d 373, 8 Conn. App. 169, 1986 Conn. App. LEXIS 1061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zotta-v-burns-connappct-1986.