890 F.3d 40
2d Cir.2018Background
- Hurricane damage to "the Villas" (Florida) led Evanston/Essex (Insurer) to retain William Kramer & Associates (Adjuster) to perform a full adjustment, including a duty to identify mortgagees.
- Adjuster received a letter (April 25, 2006) identifying Intervest as mortgagee but repeatedly told Insurer (2006–2007) there was no mortgage; Insurer issued final payment March 19, 2007 without protecting the mortgagee.
- Adjuster maintained working and office files; the office file containing the Intervest notice was not produced until 2012 after litigation and depositions; Adjuster often communicated with and billed the Insurer post-2007 and used the Insurer’s counsel in response to subpoenas.
- Intervest sued; Insurer incurred legal fees and ultimately settled with Intervest for $1,000,000 on February 7, 2013 after discovering Adjuster’s file documents in August 2012.
- Insurer sued Adjuster for negligence on October 21, 2013—beyond Connecticut’s three-year statute of limitations (Conn. Gen. Stat. § 52-577). A jury found tolling under the continuing course of conduct doctrine and awarded damages; the district court entered judgment as a matter of law for the Adjuster, finding the tolling evidence legally insufficient.
- The Second Circuit certified to the Connecticut Supreme Court the question whether the trial evidence was legally sufficient to support the jury’s finding that the statute of limitations was tolled at least through October 21, 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a continuing course of conduct tolled § 52-577 so the claim (filed 10/21/2013) was timely | Tolling applies because Adjuster remained in a fiduciary/agent relationship, repeatedly communicated, billed and used Insurer’s counsel post-2007, and omitted later related wrongful conduct (2009 subpoena, 2011 summons, 2012 deposition) | Relationship and duties ended when final payment issued (3/19/2007); subsequent communications/billing do not sustain a continuing special relationship or tolling | Court did not decide on merits; certified the legal question to CT Supreme Court whether the evidence suffices to support jury’s tolling finding (i.e., whether tolling to 10/21/2010 is legally supported) |
Key Cases Cited
- Flannery v. Singer Asset Fin. Co., 312 Conn. 286 (2014) (defines continuing-course elements and analyzes attorney-client scope/termination)
- Grey v. Stamford Health Sys., Inc., 282 Conn. 745 (2007) (distinguishes continuous-treatment doctrine from continuing-course-of-conduct doctrine)
- Blanchette v. Barrett, 229 Conn. 256 (1994) (discusses continuous-treatment factors relevant to relationship duration)
- Watts v. Chittenden, 301 Conn. 575 (2011) (addresses later related wrongful conduct tolling outside negligence context)
- Taylor v. Hamden Hall Sch., Inc., 149 Conn. 545 (1962) (agent is fiduciary for matters within scope of agency)
- Witt v. St. Vincent's Med. Ctr., 252 Conn. 363 (2000) (articulates continuing-course doctrine elements)
- Vanliner Ins. Co. v. Fay, 98 Conn.App. 125 (2006) (repeated failures to disclose in ongoing agency found to be later related wrongful omissions)