DocketNumber: No. CV 93 0352093 S
Citation Numbers: 1995 Conn. Super. Ct. 4629
Judges: HARTMERE, JUDGE.
Filed Date: 5/2/1995
Status: Non-Precedential
Modified Date: 7/5/2016
BACKGROUND
The plaintiff alleges that on September 5, 1991, he and the defendant, Raul Santiago, were involved in an automobile accident. Santiago, at the time of the accident, was employed as a taxi cab driver by the defendant, Transportation General, Inc. (Transportation). On September 10, 1993, the plaintiff filed a one count complaint sounding in negligence against both defendants. On December 10, 1993, the defendants filed an answer to the complaint. On December 13, 1993, the defendants filed an amended answer that included 1) a special defense alleging that plaintiff's damages were caused by his own negligence and 2) a counterclaim by Transportation. Transportation's counterclaim, also sounding in negligence, alleges that the plaintiff paid certain sums to Transportation for damage to its vehicle but still owed money to Transportation for its loss of the use of the taxi cab.
On June 6, 1994, the plaintiff filed a reply to the defendants' special defense and on June 9, 1994, the plaintiff filed an answer to the counterclaim, and on July 12, 1994, the plaintiff filed an amended answer and two special defenses to Transportation's counterclaim. The first special defense alleges that the sums paid out to Transportation amounted to an accord and satisfaction of the claim that Transportation has against the plaintiff. The second special defense alleges that CT Page 4630 Transportation's counterclaim is barred by the statute of limitations provision under General Statutes §
On December 21, 1994, the plaintiff filed a motion for summary judgment as to liability and a memorandum in support against Transportation's counterclaim. The plaintiff moves for summary judgment on the ground that the parties had entered into a valid contract of accord and satisfaction and further moves on the ground that the counterclaim is barred by the Statute of Limitations pursuant to General Statutes §
No memorandum in opposition to the plaintiff's motion for summary judgment has been filed by Transportation.
LEGAL DISCUSSION
Pursuant to Practice Book § 384, summary judgment is appropriate when "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." Suarez v. Dickmont Plastics Corp.,
I. Statute of Limitations
General Statutes §
II. Accord and Satisfaction
The plaintiff also moves for summary judgment on the ground that a valid accord and satisfaction exists which bars the defendants' counterclaim. The plaintiff argues that his payment to Transportation of the $750.00 dollars by way of check stating "full and final payment" resulted in an accord and satisfaction of all potential claims Transportation may have against the plaintiff resulting from the September 5, 1991 accident. The plaintiff claims the accord and satisfaction occurred when Transportation accepted and deposited the check.
"An accord is a contract between creditor and debtor for the settlement of a claim by some performance other than that which is due. . . . The defense of accord requires that the defendant allege and prove a new agreement with a new consideration." (Citations omitted; internal quotation marks omitted.) Gillis v. Gillis, CT Page 4632
Furthermore, even if the court were to determine that the potential liability established as a result of an accident could be the basis of a future accord agreement, the plaintiff has failed to establish that both parties intended to create an accord. "Without a mutual assent, or meeting of the minds, there could be no accord. . . . Whether there has been a mutual assent between the parties is a question of fact for the jury to decide." (Citations omitted; internal quotation marks omitted.) Id. Therefore, the plaintiff's argument that the doctrine of accord and satisfaction bars Transportation's counterclaim is unavailing on this summary judgment motion.
Based on the foregoing, the plaintiff's (defendant on the counterclaim) motion for summary judgement (#119) is denied.
So ordered.
Michael Hartmere, Judge