36 Conn. Super. Ct. 570 | Conn. Super. Ct. | 1980
The defendant has appealed from a judgment awarding damages to the plaintiff for the loss of certain personal property insured against theft as well as other hazards under a policy issued by the defendant. Although one paragraph of the finding is challenged for lack of evidence, the principal claims of the defendant are (1) that the conclusion of the court that the property had been lost as the result of a theft within the meaning of the insurance policy is not supported by the subordinate facts found; (2) that the circumstances of the loss as set forth in the finding fall within an exclusion contained in the policy for losses resulting from "confiscation by order of any government or public authority"; and (3) that the facts found *572 necessitate a conclusion that the plaintiff had failed to comply with the policy requirements for notice of the claim and submission of a proof of loss.
It appears from the finding that the plaintiff had occupied an apartment on Farmington Avenue in New Britain for about five years prior to September 20, 1973. On that date several New Britain police officers, acting pursuant to a search warrant authorizing the seizure of two pieces1 of personal property suspected to have been stolen, removed over 2000 items from the plaintiff's apartment, including paintings, antiques, jewelry, rifles, photographic equipment, food and other objects. The plaintiff and the other occupant of the apartment were arrested on charges of larceny. The plaintiff was unable to make bond and he remained in jail until November 15, 1973, when he was released. The charges against the plaintiff and the other occupant of the apartment were nolled or dismissed.
On November 9, 1973, the court ordered the police to return to the plaintiff all but two of the items which had been seized from his apartment. After various efforts were made by the plaintiff to obtain his property, the police returned some of the items in December, 1973, twenty-six of which had been damaged to the extent that the plaintiff's loss for those items exceeded the $5000 limitation of coverage under the policy. A substantial number of items were never found.
The return of the search warrant did not contain an inventory of the numerous items seized as required by General Statutes
The trial court concluded that the actions of the police officers in using the plaintiff's property after its return had been ordered indicated an intent to withhold the property within the context of General Statutes
The trial court did not find that the original removal of the property from the plaintiff's home, which constituted a wrongful taking because it far exceeded the scope of the search warrant, was accompanied by any larcenous intent. The behavior of the police with respect to the items in their possession after the property was ordered to be returned, as well as their delay in providing any inventory of the property and their failure to return many items taken without adequate explanation, support the finding of an intentional withholding of the property for the purpose of depriving the plaintiff thereof such as to constitute a theft within the meaning of the policy.
Although the property had been removed from his home on September 20, 1973, the date of his arrest, the plaintiff did not discover this fact until November 15, 1973, when he was released from jail. He first notified the defendant of the loss by a letter dated December 3, 1973, more than two weeks afterward. Later in the same month he submitted to the defendant a list of the missing and damaged property as best he could recall it. He also told the defendant that he was attempting to obtain an inventory of the items taken from the New Britain police department but that he was receiving no cooperation. In a letter dated January 7, 1974, the defendant informed the plaintiff that his loss would not be paid because it did not fall within the policy coverage and for other unspecified reasons.
The plaintiff could not have been expected to notify the defendant of his claim before November 15, 1973, when he discovered it after his release from jail. "The weight of authority supports the rule that where it is impossible to give the notice . . . required by the policy, the failure will not bar a recovery if the notice be given within a reasonable time after the impossibility has passed." Haskell v. Eagle Indemnity Co.,
In any event, as the trial court concluded, the failure of the defendant to mention any delay in furnishing notice of loss as a ground for its refusal to honor the claim was a waiver of such a defense. "It appears to be well settled by all the later cases on this point that the insurer may, by waiver or estoppel, lose its right to defeat a recovery . . . because of the insured's failure to comply with the policy provisions as to notice of accident or claim or as to the forwarding of suit papers." Frager v. Pennsylvania General Ins. Co.,
The policy requirement of proof of loss within sixty days was also found to have been waived by virtue of the failure of the defendant to mention it as a ground for disclaimer in the letter of January 7, 1974. The sixty-day period could not have begun to run any earlier than November 15, 1973, when the plaintiff first discovered that his property had been removed from his apartment. There would have been time to correct any deficiencies in the documents which the plaintiff had submitted if they had been pointed out in the defendant's letter of January 7, 1974. Apart from waiver, there is an element of estoppel present where an insurer which should reasonably be aware of some defect in the documents submitted fails to call the matter to the attention of the insured until the time for complying with the policy provision has expired. Cahill v. Royal Ins. Co.,
In any event, the disclaimer of liability upon grounds not related to deficiencies in the proofs of loss excused the plaintiff from making any further effort to comply with that provision of the policy. Batchelor v. People's Fire Ins. Co.,
We agree with the conclusion of the trial court that the defendant could not avail itself of the failure to provide a timely proof of loss as a defense under the circumstances of this case.
There is no error.
In this Opinion BIELUCH and HALE, Js., concurred.