Carson v. Allianz Life Ins. Co. of North America

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ELIZABETH CARSON, TRUSTEE v. ALLIANZ
LIFE INSURANCE COMPANY
OF NORTH AMERICA
(AC 39217)
DiPentima, C. J., and Elgo and Beach, Js.
Syllabus
The plaintiff sought to recover damages for, inter alia, conversion in connec-
tion with the alleged theft of certain annuities by the defendant insurance
company’s agent, F. After the plaintiff’s initial action was dismissed for
failure to prosecute with reasonable diligence, the plaintiff filed another
action, based on the same allegations, under the accidental failure of
suit statute (§ 52-592). The trial court granted the defendant’s motion
for summary judgment and rendered judgment thereon, concluding that,
because the plaintiff’s original action was time barred under the applica-
ble three year statute of limitations, it could not be revived under the
accidental failure of suit statute. The plaintiff appealed to this court,
claiming, inter alia, that the trial court incorrectly concluded that there
was no genuine issue of material fact as to whether her action was
barred by the applicable statute of limitations. The plaintiff specifically
contended that the statute of limitations should have been tolled because
F fraudulently concealed certain facts that were necessary to establish
the plaintiff’s cause of action against the defendant. Held:
1. The plaintiff failed to establish a genuine issue of material fact as to
whether the applicable statute of limitations was tolled on the basis of
F’s allegedly fraudulent concealment, and, accordingly, the trial court
properly granted the defendant’s motion for summary judgment; the
record revealed no evidence of the defendant’s alleged concealment or
knowledge of any purported fraud or misconduct by F, there was no
evidence in the record of a fiduciary relationship between the plaintiff
and the defendant, and F’s alleged acts of fraudulent concealment could
not serve to toll the statute of limitations under the fraudulent conceal-
ment doctrine, as F’s acts could not be imputed to the defendant.
2. The plaintiff could not prevail on her claim that the trial court improperly
granted the defendant’s motion for summary judgment on the ground
that the continuing course of conduct doctrine tolled the applicable
statute of limitations; the plaintiff failed to establish a genuine issue of
material fact as to whether the defendant had a fiduciary duty to the
plaintiff such that the continuing course of conduct doctrine would toll
the statute of limitations, as the plaintiff failed to offer any support
that her relationship with the defendant was anything more than one
involving a commercial transaction, and failed to offer any evidence of
a unique degree of trust and confidence between them that was akin
to a fiduciary or special relationship.
Argued March 15—officially released August 21, 2018
Procedural History
Action to recover damages for, inter alia, conversion,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Peck,
J., granted the defendant’s motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Michael J. Habib, for the appellant (plaintiff).
Michael A. Valerio, with whom, on the brief, were
Jonathan C. Sterling and John W. Herrington, for the
appellee (defendant).
Opinion
ELGO, J. The plaintiff, Elizabeth Carson, Trustee,1
appeals from the summary judgment rendered by the
trial court in favor of the defendant, Allianz Life Insur-
ance Company of North America. On appeal, the plain-
tiff claims that the trial court improperly concluded
that there was no genuine issue of material fact as to
whether her action was barred by the applicable statute
of limitations. Specifically, the plaintiff argues that
fraudulent concealment on the part of the defendant’s
agent, David Faubert, and the continuing course of con-
duct doctrine tolled the applicable statute of limitations.
We affirm the judgment of the trial court.
The following facts and procedural history, as set
forth by the trial court in its memorandum of decision,
are relevant to the plaintiff’s claims on appeal. ‘‘In the
original lawsuit, commenced on March 25, 2008, [the
plaintiff] sued the [defendant] and David Faubert,
[claiming] damages based on allegations of conversion,
fraud, violation of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), and negligence.2 On March 21, 2011,
that action, Carson v. Allianz Life Ins. Co. of North
America, CV-XX-XXXXXXX-S, was dismissed by the court,
Graham, J., in accordance with Practice Book § 14-3
for failure to prosecute with reasonable diligence. On
August 2, 2011, the [trial court] sustained the defen-
dant’s objection to the plaintiff’s motion to open the
judgment of dismissal. On March 21, 2012, the plaintiff
served [the defendant] [in] the present [action] utilizing
[General Statutes] § 52-592, the accidental failure of suit
statute.3 The allegations of the [present] action are the
same as the initial action except for the exclusion of
David Faubert as a defendant.’’ (Footnotes added.)
The defendant filed a motion for summary judgment
on December 18, 2014, claiming that the plaintiff’s pre-
viously dismissed action could not be revived by § 52-
592, because the dismissal did not fall within the reme-
dial scope of the statute and the plaintiff’s claims in
the original action were time barred. In asserting that
the plaintiff’s action was time barred, the defendant
argued that (1) any wrongful conduct of fraudulent
concealment by Faubert may not be imputed to the
defendant to toll the statute of limitations, (2) even if
there is a basis for imputing Faubert’s conduct to the
defendant, the wrongful conduct concluded on March
22, 2005, and (3) the provisions of § 52-592, which limit
actions to those commenced within the time limited by
law, do not encompass equitable tolling. In her opposi-
tion, the plaintiff refuted these claims and argued that
the applicable limitations period should be tolled until
the time that she discovered Faubert’s misconduct. The
plaintiff cited to the ‘‘Agent Agreement’’ between the
defendant and Faubert, submitted by the defendant, as
evidence of a ‘‘special relationship’’ between the plain-
tiff and Faubert.4 The plaintiff also argued that Faubert
was an agent of the defendant, rendering the defendant
vicariously liable for his misconduct.5
On September 17, 2015, in its memorandum of deci-
sion, the court granted the defendant’s motion for sum-
mary judgment and concluded that the plaintiff’s
original action was time barred, and therefore could
not be revived by § 52-592.6 As to whether the statute of
limitations was tolled based on the theory of fraudulent
concealment, the court stated, ‘‘[a]ssuming arguendo
that [Faubert] fraudulently concealed the facts neces-
sary to establish the plaintiff’s cause of action delaying
the complaint, and this wrongful conduct was imputed
to the defendant, any fraudulent concealment by [Faub-
ert] ended on March 22, 2005, when he confessed his
actions to law enforcement.’’
As to the continuing course of conduct doctrine, the
court stated, ‘‘[e]ven assuming for the purpose of this
motion for summary judgment that [Faubert] did have a
fiduciary relationship with the plaintiff in a professional
capacity, that relationship ended no later than March
22, 2005. [Faubert] ceased acting in any professional
capacity for, or with any fiduciary relationship toward,
the plaintiff as of March 22, 2005, when he confessed
his wrongful conduct against the plaintiff to law
enforcement and was arrested. The plaintiff has not
provided evidence to create a genuine issue of material
fact in relation to any wrongful acts or omissions of
the defendant or [Faubert] after March 22, 2005, and
thus, the statute of limitations began to run as of that
date.’’ Accordingly, the court rendered summary judg-
ment in favor of the defendant, and this appeal followed.
As a preliminary matter, we set forth our standard of
review. ‘‘Practice Book § 17-49 provides that summary
judgment shall be rendered forthwith if the 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.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is . . . entitled to judgment as a matter of law.
. . . The test is whether the party moving for summary
judgment would be entitled to a directed verdict on the
same facts. . . .
‘‘[A] party opposing summary judgment must sub-
stantiate its adverse claim by showing that there is a
genuine issue of material fact together with the evi-
dence disclosing the existence of such an issue. . . .
It is not enough . . . for the opposing party merely to
assert the existence of such a disputed issue. Mere
assertions of fact . . . are insufficient to establish the
existence of [an issue of] material fact and, therefore,
cannot refute evidence properly presented to the court
[in support of a motion for summary judgment]. . . .
Our review of the trial court’s decision to grant the
defendant’s motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Flannery v. Singer
Asset Finance Co., LLC, 128 Conn. App. 507, 512, 17
A.3d 509 (2011), aff’d, 312 Conn. 286, 94 A.3d 553 (2014).
‘‘[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 plaintiff does not dispute that her claims would
be untimely unless the defendant’s conduct amounted
to fraudulent concealment or a continuing course of
conduct that tolled the statute of limitations.7 Accord-
ingly, we address the application of each doctrine in
turn.
I
The plaintiff first claims that a genuine issue of mate-
rial fact exists as to whether Faubert fraudulently con-
cealed the plaintiff’s cause of action such that the
statute of limitations was tolled by the application of
General Statutes § 52-595. The defendant argues that
the court properly determined that any fraudulent con-
cealment by Faubert ended on March 22, 2005, when
he confessed his actions to law enforcement. In the
alternative, the defendant argues that the undisputed
facts do not provide a basis for imputing to the defen-
dant potential grounds for tolling, which apply solely
to Faubert.8 We agree with the defendant on this alterna-
tive ground.
We begin our analysis by setting forth the language
of § 52-595, which provides: ‘‘If any person, liable to an
action by another, fraudulently conceals from him the
existence of the cause of such action, such cause of
action shall be deemed to accrue against such person
so liable therefor at the time when the person entitled
to sue thereon first discovers its existence.’’
‘‘[T]o prove fraudulent concealment, [a plaintiff is]
required to show: (1) a defendant’s actual awareness,
rather than imputed knowledge, of the facts necessary
to establish the [plaintiff’s] cause of action; (2) that
defendant’s intentional concealment of these facts from
the [plaintiff]; and (3) that defendant’s concealment of
the facts for the purpose of obtaining delay on the
[plaintiff’s] part in filing a complaint on [her] cause of
action.’’ Bartone v. Robert L. Day Co., 232 Conn. 527,
533, 656 A.2d 221 (1995); accord Falls Church Group,
Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn. App. 459,
475, 874 A.2d 266 (2005), aff’d, 281 Conn. 84, 912 A.2d
1019 (2007).
‘‘[Additionally], the [defendant’s] actions must have
been directed to the very point of obtaining the delay
[in filing the action] of which [the defendant] afterward
[seeks] to take advantage by pleading the statute. . . .
To meet this burden, it [is] not sufficient for the [plain-
tiff] to prove merely that it was more likely than not
that the [defendant] had concealed the cause of action.
Instead, the [plaintiff must] prove fraudulent conceal-
ment by the more exacting standard of clear, precise
and unequivocal evidence . . . .’’ (Emphasis in origi-
nal; internal quotations marks omitted.) Stuart v. Sny-
der, 125 Conn. App. 506, 513, 8 A.3d 1126 (2010), cert.
denied, 300 Conn. 921, 14 A.3d 1005 (2011). Our
Supreme Court has extended this tolling doctrine to
include the defendant’s failure to disclose material facts
to a person toward whom it owed a fiduciary duty. See
Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, 281 Conn. 84, 106–107, 912 A.2d 1019 (2007).
Although the plaintiff does not claim that the defen-
dant itself has engaged in conduct that meets the ele-
ments of fraudulent concealment, she argues that the
rules of agency operate to toll the statute of limitations.
Citing to Sheltry v. Unum Life Ins. Co. of America, 247
F. Supp. 2d 169 (D. Conn. 2003), the plaintiff contends
that the acts of fraudulent concealment by Faubert may
be imputed to the defendant, thereby tolling the limita-
tions period applicable to the plaintiff’s claims against
the defendant. In Sheltry, the court addressed whether
the defendant insurance companies were entitled to
summary judgment because an insurance agent was
acting outside the scope of his authority, and not in
furtherance of the defendants’ business, when the agent
converted funds that the plaintiffs gave to the agent for
purposes of purchasing an insurance policy from the
defendants. Id., 172–73. The court in Sheltry determined
that there was a genuine issue of material fact as to
whether the agent was acting with actual or apparent
authority in soliciting the insurance application and
receiving the funds from the plaintiffs. Id., 177. In mak-
ing that determination, the court cited to § 261 of the
Restatement (Second) of Agency, which provides that
‘‘[a] principal who puts a servant or other agent in a
position which enables the agent, while apparently act-
ing within his authority, to commit a fraud upon third
persons is subject to liability to such third persons for
the fraud.’’ 1 Restatement (Second), Agency § 261, p.
570 (1958).
The plaintiff argues that the present case falls
squarely within the rationale embodied in § 261 of the
Restatement (Second) because the defendant placed
Faubert in a position that facilitated his ability to con-
summate the fraud at issue, and, therefore, a genuine
issue of material fact exists as to whether the agent
was acting with the apparent authority of the defendant
when he committed the fraud. The plaintiff’s reliance
on Sheltry and § 261 of the Restatement (Second), how-
ever, is misplaced. While the agency discussion con-
tained in Sheltry may be relevant to the merits of the
plaintiff’s vicarious liability theory, it provides no sup-
port for the plaintiff’s assertion that the agent’s conduct
tolled the applicable statute of limitations.9
We reiterate that, in order to toll the statutes of limita-
tion on the basis of fraudulent concealment, the plaintiff
bore the burden of demonstrating that the defendant
was actually aware of the facts necessary to establish
the plaintiff’s cause of action. Imputed knowledge is
not enough. See Macellaio v. Newington Police Dept.,
145 Conn. App. 426, 433, 75 A.3d 78 (2013); Falls Church
Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 89
Conn. App. 475; see also Cangemi v. Advocate South
Suburban Hospital, 364 Ill. App. 3d 446, 462, 845 N.E.2d
792 (2006) (‘‘accountability for an agent’s fraudulent
concealment does not extend to a principal unless the
principal is shown to have known or approved of the
concealment’’); 54 C.J.S., Limitations of Actions § 142
(2018) (‘‘Generally, fraudulent concealment of a cause
of action by a person other than the defendant will not
toll the statute of limitations. On the other hand, if a
third person is in privity with or occupies any agency
relationship with the defendant, the defendant’s knowl-
edge or approval of the concealment is generally suffi-
cient to toll the limitations period.’’ [Footnotes
omitted.]).
In addition, the fraudulent concealment doctrine’s
requirement that a defendant have actual knowledge,
rather than imputed knowledge, as a condition for toll-
ing is consistent with the purpose of statutes of limita-
tions. ‘‘The purpose of [a] statute of limitation[s] . . .
is . . . to (1) prevent the unexpected enforcement of
stale and fraudulent claims by allowing persons after
the lapse of a reasonable time, to plan their affairs
with a reasonable degree of certainty, free from the
disruptive burden of protracted and unknown potential
liability, and (2) to aid in the search for truth that may
be impaired by the loss of evidence, whether by death
or disappearance of witnesses, fading memories, disap-
pearance of documents or otherwise.’’ (Internal quota-
tion marks omitted.) Bellemare v. Wachovia Mortgage
Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007); see
also 51 Am. Jur. 2d, Limitation of Actions § 7 (2018)
(‘‘[s]tatutes of limitation are intended to provide an
adverse party a fair opportunity to defend a claim, as
well as to preclude claims in which a party’s ability
to mount an effective defense has been lessened or
defeated due to the passage of time’’ [footnote omit-
ted]). Tolling the limitations period to pursue claims
against an unwitting third party for the fraudulent con-
cealment of another would frustrate the underlying pur-
pose of the statute of limitations.
The plaintiff bore the burden of establishing a genuine
issue of material fact as to the defendant’s actual knowl-
edge and concealment of Faubert’s involvement in the
fraud. ‘‘[I]t remains . . . incumbent upon the party
opposing summary judgment to establish a factual pred-
icate from which it can be determined, as a matter of
law, that a genuine issue of material fact exists.’’ Connell
v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990).
Our review of the summary judgment motions and the
contents of the referenced affidavits reveals no evi-
dence of the defendant’s alleged concealment or knowl-
edge of any purported fraud by Faubert. In fact, at oral
argument before this court, the plaintiff conceded that
the defendant had no knowledge of any criminal con-
duct by Faubert. Furthermore, as discussed in part II
of this opinion, there is no evidence in the record of
a fiduciary relationship between the plaintiff and the
defendant. Accordingly, the plaintiff has failed to estab-
lish a genuine issue of material fact as to whether the
applicable statute of limitations would be tolled pursu-
ant to the fraudulent concealment doctrine.
II
The plaintiff next claims that the trial court erred in
granting the motion for summary judgment by failing
to find that the continuing course of conduct doctrine
tolled the operation of the statute of limitations. In
response, the defendant argues that the court properly
determined that any tolling under the continuing course
of conduct doctrine necessarily came to an end on
March 22, 2005, when Faubert confessed his actions to
law enforcement and ceased acting in any professional
capacity for, or with any fiduciary relationship toward,
the plaintiff. In the alternative, the defendant argues
that there is no basis for imputing, to the defendant,
Faubert’s alleged fiduciary relationship with, or obliga-
tions to, the plaintiff. We agree with the defendant’s
alternative argument.
‘‘The issue . . . of whether a party engaged in a con-
tinuing course of conduct that tolled the running of the
statute of limitations is a mixed question of law and
fact. . . . We defer to the trial court’s findings of fact
unless they are clearly erroneous. . . . General Stat-
utes § 52-577 is a statute of repose in that it sets a fixed
limit after which the tortfeasor will not be held liable
and in some cases will serve to bar an action before it
accrues. . . . Nonetheless, [w]hen the wrong sued
upon consists of a continuing course of conduct, the
statute does not begin to run until that course of con-
duct is completed. . . . [I]n order [t]o support a finding
of a continuing course of conduct that may toll the
statute of limitations there must be evidence of the
breach of a duty that remained in existence after com-
mission of the original wrong related thereto. That duty
must not have terminated prior to commencement of
the period allowed for bringing an action for such
wrong. . . . Where [our Supreme Court has] upheld a
finding that a duty continued to exist after the cessation
of the act or omission relied upon, there has been evi-
dence of either a special relationship between the par-
ties giving rise to such a continuing duty or some later
wrongful conduct of a defendant related to the prior
act. . . . Thus, there must be a determination that a
duty existed and then a subsequent determination of
whether that duty is continuing.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Stuart v. Snyder, supra, 125 Conn. App. 510–11.
Our Supreme Court has stated that ‘‘a fiduciary or
confidential relationship is characterized by a unique
degree of trust and confidence between the parties, one
of whom has superior knowledge, skill or expertise and
is under a duty to represent the interests of the other.
. . . [N]ot all business relationships implicate the duty
of a fiduciary. . . . In particular instances, certain rela-
tionships, as a matter of law, do not impose upon either
party the duty of a fiduciary.’’ (Citations omitted; inter-
nal quotation marks omitted.) Macomber v. Travelers
Property & Casualty Corp., 261 Conn. 620, 640, 804
A.2d 180 (2002).
The plaintiff’s claims hinge on the alleged fiduciary
relationship between the plaintiff and Faubert. The rele-
vant relationship, however, for purposes of the continu-
ing course of conduct doctrine, is the relationship
between the plaintiff and the defendant. It is undisputed
that the plaintiff purchased an annuity product from the
defendant, a life insurance company. As the defendant
argued in its brief, our Supreme Court has characterized
the relationship between the insurer and the insured
as ‘‘commercial’’ in nature. (Internal quotation marks
omitted.) Id., 641; accord Harlach v. Metropolitan Prop-
erty & Liability Ins. Co., 221 Conn. 185, 190, 602 A.2d
1007 (1992). The plaintiff failed to offer contrary author-
ity that her relationship with the defendant was any-
thing more than a commercial transaction. Nor did she
proffer evidence of a unique degree of trust and confi-
dence between the plaintiff and the defendant akin to
a fiduciary or special relationship.10
Accordingly, the plaintiff has failed to establish a
genuine issue of material fact as to whether the defen-
dant had a fiduciary duty to the plaintiff such that the
continuing course of conduct doctrine tolls the statute
of limitations applicable to her action. Thus, the trial
court properly granted the defendant’s motion for sum-
mary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff is the trustee of the F. W. Carson and Elizabeth N. Carson
charitable remainder trust and the revocable inter vivos trust of Elizabeth
N. Carson.
2
The complaint alleged that Faubert ‘‘recommended to [the plaintiff] that
she surrender the [t]rusts’ Allianz [l]ife annuities . . . and entrust the funds
to him, and in reliance upon said recommendation, [the plaintiff] surrendered
the Allianz [l]ife annuities and entrusted said funds to Faubert as he recom-
mended, which Faubert stole and converted to his own use and purposes.’’
It is undisputed that the defendant transmitted funds to the plaintiff in
connection with a withdrawal from an Allianz life annuity on June 3, 2004.
The defendant issued two checks to the plaintiff for the total amount of
$350,000. Subsequently, the checks were endorsed by the plaintiff and depos-
ited in a bank account of Faubert’s company, Faubert Financial Group, Inc.
Faubert was arrested and confessed to authorities on March 22, 2005.
3
Counts one, two and three of the complaint allege that the defendant is
‘‘vicariously responsible’’ for the actions of its agent, Faubert, ‘‘under the
principle of respondeat superior.’’ In count four, the plaintiff alleges that
the defendant ‘‘owed a duty to [the plaintiff] to properly oversee, monitor
and supervise the sales practices of its agent Faubert, in order to ensure
that Faubert complied with all state insurance laws and regulations and
otherwise to protect [the plaintiff] from improper sales practices, frauds
and theft.’’
4
The ‘‘Agent Agreement’’ provides: ‘‘We recognize the special relationship
you have with those to whom you have sold a policy; they are your clients.’’
5
The defendant filed a second motion for summary judgment that
addressed the merit based arguments of the plaintiff’s vicarious liability
claims. The trial court scheduled a hearing for the two motions for summary
judgment on June 1, 2015; however, the trial court did not rule on the second
motion for summary judgment.
6
Section 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 the plaintiff is dead and the action by law survives, his executor or
administrator, may commence a new action . . . for the same cause at any
time within one year after the determination of the original action or after
the reversal of the judgment.’’
The defendant also argued that dismissal of the plaintiff’s 2008 action did
not fall within the remedial scope of § 52-592 because the dismissal was
due to inexcusable neglect of counsel. In rejecting that alternative claim,
the trial court determined that the plaintiff made a factual showing that the
dismissal was a ‘‘matter of form’’ and, thus, falls within the remedial scope
of § 52-592. On appeal, the defendant does not contest the propriety of
that decision.
7
Counts one, two and four are subject to the three year statute of limita-
tions set forth in General Statutes § 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.’’ ‘‘Section 52-577 is a statute
of repose that sets a fixed limit after which the tortfeasor will not be held
liable . . . . The three year limitation period of § 52-577, therefore, begins
with the date of the act or omission complained of, not the date when the
plaintiff first discovers an injury. . . . The relevant date of the act or omis-
sion complained of, as that phrase is used in § 52-577, is the date when the
negligent conduct of the defendant occurs and not the date when the plain-
tiffs first sustain damage. . . . Ignorance of his rights on the part of the
person against whom the statute has begun to run, will not suspend its
operation.’’ (Citation omitted; internal quotation marks omitted.) Kidder v.
Read, 150 Conn. App. 720, 726–27, 93 A.3d 599 (2014).
Count three, the CUTPA claim, is subject to the three year statute of
limitations set forth in General Statutes § 42-110g (f). See Bellemare v.
Wachovia Mortgage Corp., 94 Conn. App. 593, 606–607, 894 A.2d 335 (2006),
aff’d, 284 Conn. 193, 931 A.2d 916 (2007). Section 42-110g (f) provides that
an action alleging an unfair trade practice under CUTPA ‘‘may not be brought
more than three years after the occurrence of a violation . . . .’’
Each of the four counts is based on Faubert’s criminal conduct and subject
to a three year statute of limitations. The relevant date for each statute is
the date that the act complained of occurred. Any criminal actions of Faubert
necessarily occurred prior to his arrest on March 22, 2005. The original
action was commenced on March 25, 2008, and, thus, outside of the three
year limitation period for all counts.
8
In addition, the defendant argues that § 52-592 does not provide that a
plaintiff may rely on tolling of the applicable statutes of limitations in the
originally filed action in order to permit refiling of the action following
dismissal. Because we find there is no basis for imputing to the defendant
Faubert’s alleged fraudulent concealment of the plaintiff’s cause of action,
or Faubert’s alleged ‘‘special relationship’’ with the plaintiff, we need not
address the defendant’s second alternative argument.
9
The plaintiff also appears to argue that Faubert was acting as a fiduciary
to the plaintiff and, thus, that Faubert’s failure to disclose material facts
tolled the statute of limitations as to the action against the defendant until
the plaintiff discovered the facts necessary to establish her cause of action.
The plaintiff, however, has offered no evidence of a fiduciary relationship
between the defendant and the plaintiff. See part II of this opinion.
10
The plaintiff also failed to offer evidence of any later wrongful conduct
related to a prior act.