DocketNumber: No. CV 93-0343130
Citation Numbers: 1994 Conn. Super. Ct. 6995, 9 Conn. Super. Ct. 897
Judges: RIPLEY, JUDGE. CT Page 6996
Filed Date: 7/26/1994
Status: Non-Precedential
Modified Date: 4/17/2021
The defendant has moved for summary judgment claiming that the record clearly reflects that the present action was brought more than 3 years after the time the written proof of loss was required to be furnished according to the terms of the policy.
The plaintiff claims that summary judgment does not lie as the new complaint simply continues, in effect, the prior complaint which was served is a timely fashion. Assuming that the initial complaint was served within the appropriate limitations for suit as set out in the insurance contract, the present suit, not being served until January 4, 1993, is well beyond the 3 years limit as prescribed by the policy. The case of Monteiro v. American HomeAssurance Co.,
The "accidental failure" statute, while providing an opportunity to preserve a cause of action from the effect of a statutory Limitation of Action, is of no effect in tolling any policy time limitation on when suit must be commenced. Consequently the plaintiff's claim that the "accidental failure" statute relates the present action back to the original action is inappropriate.
The plaintiff further claims that this time limitation was tolled as, according to exhibits and affidavits on file, the insurer paid benefits and that any time limitations set out in the policy for commencing suit did not begin until the plaintiff was advised that his benefits were being denied. The case of Boyce v.Allstate Insurance Company,
However, given all of the foregoing, the plaintiff in his Reply To The Defendant's First Special Defense claims that the defendant, by carrying on negotiations and paying certain benefits, has waived certain notice requirements of the policy. This creates a question of fact which prevents the entry of summary judgment for the defendant at this time.
Accordingly, the motion is denied.