Gaddy v. Mount Vernon Fire Ins. Co.

192 Conn.App. 337

217 A.3d 1082

Charles H. GADDY

v.MOUNT VERNON FIRE INSURANCE COMPANY et al.

AC 41130

Appellate Court of Connecticut.

Argued May 28, 2019

Officially released September 3, 2019

Mario Cerame, with whom, on the brief, were Juri E. Taalman, Hartford, Joseph R. Serrantino, Middletown and Timothy Brignole, Hartford, for the appellant (plaintiff).

Beverly Knapp Anderson, for the appellees (defendants).

Bright, Devlin and Eveleigh, Js.

PER CURIAM.

The plaintiff, Charles H. Gaddy, appeals from the summary judgment rendered by the trial court in favor of the defendants, Mount Vernon Fire Insurance Company and United States Liability Insurance Group. On appeal, the plaintiff claims that the court improperly concluded that his claims were barred by the applicable statute of limitations. We disagree.

The claims raised by the plaintiff on appeal essentially are the same claims he raised in the trial court when he opposed the defendants' motion for summary judgment and argued in favor of his own motion for summary judgment. We have examined the record on appeal, including the briefs and arguments of the parties, and we conclude that the judgment of the trial court should be affirmed. The issues raised by the plaintiff were resolved properly in the thoughtful and comprehensive memorandum of decision filed by the trial court, Noble, J . Because Judge Noble's memorandum of decision also fully addresses the arguments raised in the present appeal,¹ we adopt the trial court's well reasoned decision as a statement of the facts and the applicable law on those issues. See Gaddy v. Mount Vernon Fire Ins. Co. , Superior Court, judicial district of Hartford, Docket No. CV-16-6066237-S, ––– A.3d ––––, 2017 WL 11414130 (October 16, 2017) (reprinted at 192 Conn. App., A.3d). It would serve no useful purpose for us to repeat those facts or the discussion here. See, e.g., Tzovolos v. Wiseman , 300 Conn. 247, 253–54, 12 A.3d 563 (2011).

The judgment is affirmed.

APPENDIX

CHARLES H. GADDY v. MOUNT VERNON FIRE INSURANCE COMPANY ET AL.*

Superior Court, Judicial District of Hartford

File No. CV-16-6066237-S

Memorandum filed October 16, 2017

Proceedings

Memorandum of decision on motions for summary judgment. Defendants' motion granted ; plaintiff’s motion denied.

Juri E. Taalman and Joseph R. Serrantino , for the plaintiff.

Beverly Knapp Anderson and Carmine Annunziata , for the defendants.

Opinion

NOBLE, J. Before the court are motions for summary judgment by each party. For the reasons set forth below, the defendants' motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied.

FACTS

On February 19, 2016, the plaintiff, Charles Gaddy, commenced the present action against the defendants, the Mount Vernon Fire Insurance Company (Mount Vernon) and the United States Liability Insurance Group (USLI).¹ In the amended complaint dated March 6, 2017, the plaintiff alleges that his former insurance agent, the Hunt Group, LLC (Hunt Group), was insured by Mount Vernon and USLI. The plaintiff owned property, which was insured under a policy of insurance (policy) for property and casualty loss with the Scottsdale Insurance Company (Scottsdale.) On May 19, 2003, the plaintiff provided the Hunt Group with funds for the renewal of the policy. On or before June 14, 2003, the Hunt Group failed to timely forward the funds to Scottsdale, which caused the policy to lapse. On that date, the plaintiff experienced a fire loss to the property that was to have been insured by Scottsdale.

The plaintiff brought suit in 2006 against the Hunt Group, claiming negligence. See Gaddy v. Hunt Group , LLC, Superior Court, judicial district of Hartford, Docket No. CV-06-05003718-S. The defendants there-after filed a complaint against Hunt Group in the United States District Court for the District of Connecticut (District Court action) seeking a declaratory judgment that it had no duty to indemnify or defend the Hunt Group for its failure to cooperate with the defendants. See Mount Vernon Fire Ins. Co. v. Hunt Group, LLC , United States District Court, Docket No. 3:06 CV-02006 (CFD) (D. Conn. 2006). In the District Court action, service of process was made on "Mr. Michael Hunt, as agent for Hunt Group, Inc.," and not "Hunt Group, LLC."

On March 29, 2007, the District Court entered a default judgment for failure to appear. See Mount Vernon Fire Ins. Co. v. Hunt Group, LLC , supra, United States District Court, Docket No. 3:06 CV-02006 (CFD). On April 4, 2007, the District Court entered an amended default judgment (federal declaratory judgment) for failure to appear, and held that Mount Vernon had no duty to defend or indemnify Hunt Group for the plaintiff's fire loss in the underlying Superior Court action. See id. The defendants successfully moved to withdraw their defense of the Hunt Group in the Superior Court action. See Gaddy v. Hunt Group, LLC , supra, Superior Court, Docket No. CV-06-05003718-S. On January 26, 2009, the plaintiff recovered a judgment against Hunt Group in the amount of $823,919.99 for the plaintiff's fire loss. See id. The plaintiff commenced the current action against the defendants pursuant to General Statutes § 38a-321,² and is, by law, subrogated to the Hunt Group's rights to enforce the policy.

On May 19, 2017, both parties filed motions for summary judgment. The plaintiff's motion asserts that the federal court's declaratory judgment was null and void ab initio because it was obtained by the defendants without proper service on the Hunt Group, and thus, in a manner that amounted to a fraud on the court. The defendants' motion is based on the ground that the plaintiff's claims are time barred under all applicable statutes of limitation and submits the following: (1) the District Court's amended default judgment, dated April 4, 2007; (2) the District Court's default judgment, dated March 29, 2007; (3) the District Court's case docket; (4) the marshal's return of service to "Mr. Michael Hunt of Hunt Group, Inc.," for the District Court action (return of service), dated December 20, 2006; (5) the underlying Superior Court's docket entries; (6) certified Secretary of the State record on Hunt Group; (7) Secretary of the State's Commercial Recording Service (C.O.N.C.O.R.D.) record for Hunt Group; (8) the underlying Superior Court motion to withdraw appearance hearing transcript (Tanzer, J. ); and (9) the signed and sworn affidavit of Beverly Knapp Anderson, the defendants' attorney.

On June 19, 2017, the plaintiff filed an opposition to the defendants' motion for summary judgment. In his opposition, the plaintiff incorporated his motion for summary judgment, dated May 19, 2017, and submits the following: (1) the signed and sworn affidavit of Robert Enos;³ (2) the signed and sworn affidavit of Mary Hemsley;⁴ (3) the underlying Superior Court judgment; (4) the District Court's complaint, dated December 15, 2006; (5) the District Court's appearance of counsel for Mount Vernon; (6) the return of service; (7) C.O.N.-C.O.R.D. business inquiry; (8) the District Court's motion for entry of default, dated January 10, 2007; (9) the District Court's motion for entry of default, dated January 30, 2007; (10) Mount Vernon's memorandum of law regarding service of process in the District Court action, dated March 26, 2007; (11) the District Court action civil docket; (12) the signed and sworn affidavit of Attorney Joseph R. Serrantino;⁵ (13) the District Court default judgment, dated March 29, 2007; (14) the District Court amended default judgment, dated April 4, 2007; (15) the District Court motion to withdraw as counsel; and (16) the plaintiff's amended complaint, dated March 6, 2017. On June 19, 2017, the defendants submitted an objection to the plaintiff's summary judgment motion. On July 5, 2017, the plaintiff submitted a reply to the defendants' objection. The court heard oral argument at short calendar on July 10, 2017.

IDISCUSSION

"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation , 306 Conn. 523, 534, 51 A.3d 367 (2012). "Summary judgment may be granted where the claim is barred by the statute of limitations.... Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute ...." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America , 310 Conn. 304, 313, 77 A.3d 726 (2013).

The defendants argue that their motion for summary judgment should be granted on the grounds that (1) counts one and two of the amended complaint are time barred under the six year statute of limitations in General Statutes § 52-576 (a) ;⁶ and (2) counts three and four are time barred under the three year statute of limitations in General Statutes § 52-577.⁷ In the alternative, the defendants argue that the plaintiff cannot demonstrate that the scrivener's error in the summons or marshal's return of service rendered the federal declaratory judgment void ab initio. In support of their argument, the defendants argue that under the reasoning of Grannis v. Ordean , 234 U.S. 385, 395, 34 S. Ct. 779, 58 L. Ed. 1363 (1914), they are entitled to summary judgment because "if a person is sued by a wrong name, and he fails to appear and plead the misnomer in abatement, the judgment binds him." See also Morrel v. Nationwide Mutual Fire Ins. Co. , 188 F.3d 218, 224 (4th Cir. 1999) (absence of Inc. in corporate name of defendant in affidavit of service did not render default judgment defective where any confusion would have been dispelled by allegations in other documents); Barsten v. Dept. of Interior , 896 F.2d 422, 423 (9th Cir. 1990) (technical misnaming of defendant is insignificant,...