Gaddy v. Mount Vernon Fire Ins. Co. ( 2019 )

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APPENDIX
CHARLES H. GADDY v. MOUNT VERNON FIRE
INSURANCE COMPANY ET AL.*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-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 judg-
ment 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 Ver-
non) 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 Insur-
ance Company (Scottsdale.) On May 19, 2003, the plain-
tiff 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 Ver-
non 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 plain-
tiff’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 Stat-
utes § 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 sum-
mary 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) Secre-
tary of the State’s Commercial Recording Service
(C.O.N.C.O.R.D.) record for Hunt Group; (8) the under-
lying Superior Court motion to withdraw appearance
hearing transcript (Tanzer, J.); and (9) the signed and
sworn affidavit of Beverly Knapp Anderson, the defen-
dants’ 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 judg-
ment 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.
I
DISCUSSION
‘‘Summary judgment is a method of resolving litiga-
tion 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 judg-
ment 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 quota-
tion 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 Gen-
eral 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 alterna-
tive, the defendants argue that the plaintiff cannot dem-
onstrate that the scrivener’s error in the summons or
marshal’s return of service rendered the federal declara-
tory judgment void ab initio. In support of their argu-
ment, 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 abate-
ment, 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); Bar-
sten v. Dept. of Interior, 896 F.2d 422, 423 (9th Cir. 1990)
(technical misnaming of defendant is insignificant, as
accompanying documents made defendant’s identity
clear); United States v. A. H. Fischer Lumber Co., 162
F.2d 872, 873 (4th Cir. 1947) (inclusion of Inc. in corpo-
rate name of defendant and Lumber in other case did
not make complaint defective).
In response, the plaintiff argues that the defendants’
motion for summary judgment should be denied and
his motion granted because (1) the federal declaratory
judgment was null and void ab initio, and was obtained
by the defendants in a manner that amounted to fraud
on the court; (2) the defendants fraudulently and in bad
faith presented the declaratory judgment as the basis
for their request to be withdrawn from the underlying
Superior Court case; and (3) the defendants’ claimed
statute of limitations does not apply because the plain-
tiff’s amended complaint is based upon a judgment that
can be brought within twenty-five years of the date
upon which judgment was entered pursuant to General
Statutes § 52-598.8
A
Service of Process
The only defect in the service of process that the
plaintiff identifies is the naming of ‘‘Hunt Group, Inc.,’’
as the defendant, rather than ‘‘Hunt Group, LLC.’’ How-
ever, ‘‘[a] defendant who is clearly identified by a sum-
mons and complaint and who has been served with
those documents may not avoid the jurisdiction of the
district court merely because he is incorrectly named
in them.’’ Tremps v. Ascot Oils, Inc., 561 F.2d 41, 44
(7th Cir. 1977). Service is proper despite a misnomer
if the complaint is ‘‘not susceptible to any reasonable
doubt or confusion about who it was the plaintiff
intended to sue.’’ (Internal quotation marks omitted.)
Conner-Cooley v. AIG Life Brokeradge, 282 F.R.D. 431,
435 (E.D. Wis. 2012).
In support of their argument, the defendants argue
that the return of service naming ‘‘Hunt Group, Inc.,’’
rather than ‘‘Hunt Group, LLC,’’ was a scrivener’s error
and that there is no evidence that Hunt Group was
misled or confused in any way from the misnomer. The
plaintiff counters that the District Court did not have
personal jurisdiction over the Hunt Group, as it was
never properly served with process.
In the present case, service of process in the District
Court was made upon ‘‘Mr. Michael Hunt as agent for
Hunt Group, Inc., at 71 Barbonsel Road, East Hartford.’’
This error could not have created reasonable doubt or
confusion about the identity of the intended defendant
because there is no ‘‘Hunt Group, Inc.,’’ registered in
Connecticut, the proper authorized agent for service
of process of Hunt Group, ‘‘Mr. Michael Hunt at 71
Barbonsel Road, East Hartford,’’ was served, and Hunt
Group was the named defendant on the complaint and
on both the summons and complaint’s captions. On
December 20, 2006, Mount Vernon’s process server
delivered a copy of the summons and complaint to Hunt,
who was Hunt Group’s authorized agent for service of
process. Accordingly, the District Court had personal
jurisdiction over Hunt Group, as Hunt Group was prop-
erly served with the summons and complaint on Decem-
ber 20, 2006.9
II
STATUTES OF LIMITATIONS
‘‘[I]n the context of a motion for summary judgment
based on a statute of limitations special defense, a
defendant typically meets its initial burden of showing
the absence of a genuine issue of material fact by dem-
onstrating that the action had commenced outside of
the statutory limitation period. . . . When the plaintiff
asserts that the limitations period has been tolled by
an equitable exception to the statute of limitations, the
burden normally shifts to the plaintiff to establish a
disputed issue of material fact in avoidance of the stat-
ute.’’ (Internal quotation marks omitted.) Flannery v.
Singer Asset Finance Co., LLC, 312 Conn. 286, 310, 94
A.3d 553 (2014).
The defendants argue that counts one and two of the
amended complaint are time barred under the six year
statute of limitations in § 52-576 (a), and counts three
and four are time barred under the three year statute
of limitations in § 52-577. The plaintiff counters that the
statutes of limitations were tolled by the continuing
course of conduct doctrine or by the doctrine of equita-
ble estoppel. Specifically, the plaintiff argues that the
defendants acted fraudulently when Mount Vernon
obtained the federal declaratory judgment because
Hunt Group was never served with process, and there-
fore, the District Court did not have personal jurisdic-
tion over Hunt Group. The plaintiff further argues that
the defendants acted fraudulently when they submitted
the original declaratory judgment, instead of the
amended declaratory judgment, to the Superior Court.
At no time has the plaintiff moved to open or vacate
the judgment of the District Court.
A
Section 52-576 (a)
The defendants argue that counts one and two are
time barred under § 52-576 (a) because the plaintiff
became subrogated to the Hunt Group’s rights on Febru-
ary 25, 2009, and therefore, was required to commence
suit within six years of that date. Section 52-576 (a)
provides in relevant part: ‘‘No action for an account,
or on any simple or implied contract, or on any contract
in writing, shall be brought but within six years after
the right of action accrues . . . .’’ ‘‘[Our Appellate
Court] and our Supreme Court have held that, in the
absence of some other controlling statutory or contrac-
tual provision, § 52-576 (a) is the applicable statute of
limitation for bringing claims under insurance policies.’’
Gohel v. Allstate Ins. Co., 61 Conn. App. 806, 821, 768
A.2d 950 (2001).
In the present case, it is undisputed that the Superior
Court in the underlying action entered judgment against
Hunt Group on January 26, 2009. See Gaddy v. Hunt
Group, LLC, supra, Superior Court, Docket No. CV-06-
05003718-S. Pursuant to § 38a-321, the plaintiff became
subrogated to the Hunt Group’s rights thirty days after
the judgment was rendered. The plaintiff could have
brought a subrogation action beginning on February
25, 2009, and therefore, was required to commence suit
within six years from that date. Because the only statute
of limitations applicable to the plaintiff’s claim was that
set forth in § 52-576 (a), namely, six years, and because
the plaintiff brought suit on that claim after six years, on
February 17, 2016, the defendants’ motion for summary
judgment as to counts one and two should be granted
unless the statute of limitations is tolled under one of
the exceptions.
B
Section 52-577
Section 52-577 provides: ‘‘No action founded upon a
tort shall be brought but within three years from the
date of the act or omission complained of.’’ ‘‘[S]ection
52-577 is an occurrence statute, meaning that the time
period within which a plaintiff must commence an
action begins to run at the moment the act or omission
complained of occurs.’’ (Internal quotation marks omit-
ted.) Pagan v. Gonzalez, 113 Conn. App. 135, 139, 965
A.2d 582 (2009). ‘‘When conducting an analysis under
§ 52-577, the only facts material to the trial court’s deci-
sion on a motion for summary judgment are the date
of the wrongful conduct alleged in the complaint and
the date the action was filed.’’ (Internal quotation marks
omitted.) Id.
In the present case, the District Court issued the
amended judgment on April 4, 2007. The plaintiff argues
that the defendants acted fraudulently when they sub-
mitted the motion to withdraw their appearance in the
underlying Superior Court action. The Superior Court
granted the motion to withdraw the appearance on June
6, 2007. See Gaddy v. Hunt Group, LLC, supra, Superior
Court, Docket No. CV-06-05003718-S. Therefore, the
plaintiff was required to commence suit by June 6, 2010,
at the latest. The plaintiff, however, did not commence
suit until February 17, 2016. Therefore, the defendants’
motion for summary judgment as to counts three and
four should be granted unless the statute of limitations
is tolled under one of the exceptions argued by the
plaintiff.
C
Continuing Course of Conduct Doctrine
One of the exceptions to toll the statute of limitations
is the continuing course of conduct doctrine. The defen-
dants argue, inter alia, that the continuing course of
conduct doctrine does not apply because the plaintiff
cannot establish that the defendants committed an ini-
tial wrong against the plaintiff since service of process
on ‘‘Hunt Group, Inc.,’’ instead of ‘‘Hunt Group, LLC,’’
did not make the federal declaratory judgment void ab
initio, and therefore, the defendants did not have a
duty to defend and indemnify Hunt Group. The plaintiff,
however, argues that the federal declaratory judgment
that relieved the defendants from their continuing duty
to defend and indemnify Hunt Group was void ab initio,
and therefore, the defendants had a continuing duty to
defend and indemnify, which the defendants breached.
‘‘[W]hen the wrong sued upon consists of a continuing
course of conduct, the statute does not begin to run
until that course of conduct is completed.’’ (Internal
quotation marks omitted.) Flannery v. Singer Asset
Finance Co., LLC, supra, 312 Conn. 311. ‘‘[I]n deciding
. . . the defendant’s motion for summary judgment,
[the court] must determine if there is a genuine issue
of material fact with respect to whether the defendant:
(1) committed an initial wrong upon the plaintiff; (2)
owed a continuing duty to the plaintiff that was related
to the alleged original wrong; and (3) continually
breached that duty.’’ (Internal quotation marks omit-
ted.) Id., 313.
In the present case, the plaintiff has failed to produce
evidence that the defendants have committed an initial
wrong upon the plaintiff. ‘‘[A] precondition for the oper-
ation of the continuing course of conduct doctrine is
that the defendant must have committed an initial
wrong upon the plaintiff.’’ (Internal quotation marks
omitted.) Id., 312.
Simply put, there is no evidence that the defendants
committed common-law fraud, or any fraud, on the
court. The federal declaratory judgment was not void
ab initio because service of process was proper, and
therefore, it was not fraudulent for the defendants to
present this court with the federal declaratory judg-
ment. As the plaintiff has failed to demonstrate the
precondition for the operation of the continuing course
of conduct doctrine, it does not apply to the present
case.
D
Doctrine of Equitable Estoppel
A second exception to toll the statute of limitations
is the doctrine of equitable estoppel. ‘‘The doctrine of
equitable estoppel is well established. [W]here one, by
his words or actions, intentionally causes another to
believe in the existence of a certain state of things,
and thereby induces him to act on that belief, so as
injuriously to affect his previous position, he is [pre-
cluded] from averring a different state of things as
existing at the time. . . . In its general application, we
have recognized that [t]here are two essential elements
to an estoppel—the party must do or say something that
is intended or calculated to induce another to believe
in the existence of certain facts and to act upon that
belief, and that the other party, influenced thereby, must
actually change his position or do some act to his injury
which he otherwise would not have done.’’ (Internal
quotation marks omitted.) Coss v. Steward, 126 Conn.
App. 30, 41, 10 A.3d 539 (2011). ‘‘[T]here must generally
be some intended deception in the conduct or declara-
tions of the party to be estopped, or such gross negli-
gence on his part as amounts to constructive fraud, by
which another has been misled to his injury.’’ (Internal
quotation marks omitted.) Id., 41–42. ‘‘In the absence of
prejudice, estoppel does not exist.’’ (Internal quotation
marks omitted.) Id., 42.
The defendants argue that the doctrine of equitable
estoppel does not apply here because there is no evi-
dence that the defendants induced the plaintiff to
refrain from bringing the action prior to the expiration
of the statute of limitations. The defendants further
argue that equitable estoppel does not apply because
the service of process on ‘‘Hunt Group, Inc.,’’ was not
intentional and was a mere scrivener’s error, and there
is no evidence that Hunt Group was confused or misled
by such misnomer. To counter, the plaintiff argues that
the defendants are equitably estopped from asserting
the statute of limitations defense because Mount Ver-
non fraudulently obtained a withdrawal of representa-
tion of Hunt Group in the underlying Superior Court
case on the basis of a federal declaratory judgment that
was void ab initio for lack of service of process on
Hunt Group.
In the present case, similar to Carroll v. Safeco Ins.,
Superior Court, judicial district of Waterbury, Docket
No. 117750 (April 5, 1994) (Sullivan, J.) (11 Conn. L.
Rptr. 271, 273), ‘‘[t]he plaintiff has neither alleged nor
shown any facts that the defendant misrepresented or
misled [him] about the state of limitations.’’ A mere
mistake, such as a misnomer, does not afford a basis
for estoppel. See Krupa v. Kelley, 5 Conn. Cir. Ct. 127,
132, 245 A.2d 886 (1968). The doctrine of equitable
estoppel, therefore, is not applicable.
III
CONCLUSION
For the foregoing reasons, the defendants’ motion
for summary judgment is granted and the plaintiff’s
motion for summary judgment is denied.
* Affirmed. Gaddy v. Mount Vernon Fire Ins. Co., 192 Conn. App. ,
A.3d (2019).
1
USLI is Mount Vernon’s parent company. USLI and Mount Vernon will
be collectively referred to as the defendants.
2
General Statutes § 38a-321 provides in relevant part: ‘‘Upon the recovery
of a final judgment against any person, firm or corporation by any person,
including administrators or executors, for loss or damage on account of
bodily injury or death or damage to property, if the defendant in such action
was insured against such loss or damage at the time when the right of action
arose and if such judgment is not satisfied within thirty days after the date
when it was rendered, such judgment creditor shall be subrogated to all
the rights of the defendant and shall have a right of action against the insurer
to the same extent that the defendant in such action could have enforced
his claim against such insurer had such defendant paid such judgment.’’
(Emphasis added.)
3
Robert Enos is the New England district manager of Custard Insurance
Adjusters, Inc.
4
Mary Hemsley is a second vice president/claims examiner for USLI.
5
Attorney Joseph R. Serrantino is an attorney for Brignole & Bush, LLC.
6
General Statutes § 52-576 (a) provides in relevant part: ‘‘No action for
an account, or on any simple or implied contract, or on any contract in
writing, shall be brought but within six years after the right of action
accrues . . . .’’
7
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
8
General Statutes § 52-598 (a) provides in relevant part: ‘‘[N]o action based
upon such a judgment may be instituted after the expiration of twenty-five
years from the date the judgment was entered . . . .’’
The parties disagree on the applicable statute of limitations. The defen-
dants argue that the statute of limitations for tort cases under § 52-577 is
three years, and the statute of limitations for breach of contract cases under
§ 52-576 (a) is six years. The plaintiff argues that this is an action to collect
a prior judgment, and therefore, the statute of limitations is twenty-five
years under § 52-598. The court rejects the plaintiff’s argument that the
twenty-five year statute of limitations in § 52-598 applies in the present
action because the plaintiff does not have a judgment against either of the
defendants to enforce, and the defendants received a declaratory judgment,
which discharged their duty to indemnify and defend Hunt Group. Our
courts have previously reasoned that § 52-598 is applicable when the plaintiff
has proven that the defendants are the alter ego of the entity that was
subject to the previous judgment, which the plaintiff has not demonstrated
here. See Wm. Passalacqua Builders, Inc. v. Resnick Developers South,
Inc., 933 F.2d 131, 142–43 (2d Cir. 1991); Pullicino v. Jensen, Superior Court,
judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S (December 27,
2013) (Roche, J.) (57 Conn. L. Rptr. 372, 374).
9
The defendant does not argue, and this court does not consider, whether
this court has authority or jurisdiction to find that an action brought, and
judgment rendered, in the United States District Court, is void ab initio.