Tucker v. Connecticut Insurance Placement Facility

This is an action by the plaintiff to recover fire loss damages to property under a fire insurance policy issued by the defendant. Each party in the case moved for summary judgment. The trial court denied the plaintiff's motion and granted the defendant's motion. The plaintiff has appealed.

The trial court's memorandum of decision and the record reveal the following facts: The plaintiff had an interest in premises located at 963 Capitol Avenue in Hartford which had been insured by the defendant against fire loss in March, 1980. On January 25, 1981, the premises were damaged by fire in the amount of $5638.65. In response to the defendant's inquiry, the deputy town clerk of the city of Hartford notified the defendant that outstanding tax liens existed against the premises in the amount of $26,727.40 as of May 28, 1981. On December 21, 1981, the defendant insurer paid the $5638.65 fire loss proceeds to the city of Hartford.

At issue here are those sections of the General Statutes which authorize an insurance company to pay fire insurance proceeds directly to a municipality upon notification to the company that tax liens exist on the real estate damaged by fire.¹ General Statutes 49-73a states that "[n]o such [tax] lien shall be valid unless the tax collector of the municipality wherein such item of real estate is situated makes and files in the office of the town clerk a certificate of lien, pursuant to the provisions of section 12-173, giving notice of his intention to claim against such proceeds." Section 12-173 sets forth the procedure by which the tax collector of a municipality may continue a tax lien.²

The plaintiff maintains that the city of Hartford failed to file such a certificate of lien stating its intent to claim fire loss proceeds. He argues that the insurance company therefore lacked the authority to pay the proceeds to the city because of the city's alleged noncompliance with the relevant statutory provisions. We disagree.

Section 49-73d sets forth the insurance company's obligations.³ That provision requires only that the insurance company request a statement of the amount of valid tax liens on the damaged property which the city must then provide within the specified time period. Since the statute dealing with what the insurance company must do only speaks in terms of an amount, the city's failure to file a certificate of lien with the appropriate statement of intent does not give rise to a cause of action against the insurance company. We need not discuss how such a claim would affect the city's right to the fire loss proceeds since the city of Hartford is not a defendant in the present action.

In summary judgment proceedings, "[t]he judgment sought 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." Practice Book 384. In support of its motion for summary judgment, the defendant filed affidavits and documents from the tax collector of Hartford, the deputy town clerk of Hartford and its claims manager.

According to those affidavits, on May 8, 1981, the defendant notified the city of its intention to pay fire loss insurance proceeds for the damage sustained at the Capitol Avenue property. Those documents do not indicate whether the notice was sent by registered or certified mail. Since it is undisputed, however, that the city received actual notice of the insurance company's intent on May 8, 1981, the purpose of the statute's notice provision was met.

In response to the insurance company's notification, the deputy town clerk of Hartford, Rose M. Blesso, sent a certified letter dated May 28, 1981, to the adjuster of the defendant with a statement that tax liens in the amount of $26,727.40 existed on the damaged property. Section 49-73d requires that the city respond within twenty days of receipt of notification by delivering the necessary statement in person or by registered or certified mail. "The word ``deliver' includes a handing over for the purpose of taking even though both acts do not occur simultaneously. State v. Koenig, 120 Conn. 39,43 [178 A. 923 (1935)]." Zarillo v. Peck, 33 Conn. Super. Ct. 676, 678, 366 A.2d 1165 (1976). When the statement was mailed at the post office, it was handed over for the insurance company's taking.

The meaning of "within" is "``not longer in time than'; Webster's New International Dictionary (2d Ed.); ``not later than.' 69 C.J. 1315; 45 Words Phrases (Perm. Ed.), p. 378." Lamberti v. Stamford, 131 Conn. 396, 398, 40 A.2d 190 (1944). The city therefore delivered the statement in compliance with the statute since it was mailed on the twentieth day after the clerk was notified by the insurance company.

Section 49-73g provides that "[a]n insurance company shall not be liable . . . for any amounts paid by it to a municipality . . . in reliance upon information contained in any statement provided by a municipality pursuant to section49-73d . . . ." On the basis of the affidavits and documents submitted by the parties, the trial court was justified in concluding that the procedures used complied with the salient statutory provisions. Since there was no genuine issue of fact between the parties, the court was correct in granting summary judgment for the defendant on the basis of the immunity afforded insurance companies by 49-73g.

The plaintiff also claims that the defendant's affidavits were not based on personal knowledge. An examination of the affidavits and documents, assisted by the presumption that official acts have been properly performed; Daly v. Fisk,104 Conn. 579, 582, 134 A. 169 (1926); leads to the conclusion that the personal knowledge requirement as set forth in Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 515,391 A.2d 157 (1978), has been satisfied.

There is no error.

In this opinion COVELLO, J., concurred.