67 Conn. App. 753 | Conn. App. Ct. | 2002
Lead Opinion
Opinion
The plaintiff, Anthony J. Scalise, appeals from the judgment of the trial court denying his application for an order to compel the defendant, American Employers Insurance Company, to proceed with arbitration of his underinsured motorist claim as set forth in his automobile insurance policy with the defendant. On appeal, the plaintiff argues that the court improperly concluded that he failed to make a written demand for arbitration before the running of the statute of limitations, General Statutes § 52-576. We affirm the judgment of the trial court.
On April 10,1991, General Indemnity offered to settle the plaintiffs claim for damages against its insured for $20,000, the policy limit. On April 18, 1991, the plaintiff signed a release in favor of General Indemnity’s insured. On April 23, 1991, General Indemnity issued an uncertified check to the plaintiff for $20,000. On April 26,1991, the plaintiffs counsel received and deposited the check on the plaintiffs behalf.
In a letter dated April 29, 1997, the plaintiff made a demand against the defendant to arbitrate his still pending underinsured motorist claim. The defendant refused. On May 2,1997, the plaintiff filed an application in the Superior Court for an order to compel the defendant to proceed with arbitration.
This appeal presents an issue concerning the interaction of two statutes, one dealing with an insurer’s obligation to make underinsured motorist payments to its insured and another that establishes the time frame in which an insured may bring an action to recover such payments. “Statutory interpretation is a matter of law over which this court’s review is plenary.” (Internal quotation marks omitted.) Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 302, 780 A.2d 916 (2001). Likewise, “[t]he question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).
Because the plaintiffs policy was silent as to the time period in which he could exercise his right to demand arbitration of his underinsured motorist claim, the statute of limitations set forth in § 52-576 applied to his right to do so. See Coelho v. ITT Hartford, 251 Conn. 106, 107, 752 A.2d 1063 (1999) (noting that “in the absence of a contrary provision in the claimant’s motor vehicle policy, an action for underinsured benefits can be brought at any time prior to the expiration of the time limitation of that statute”); Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 807, 623 A.2d 66, aff'd, 228 Conn. 436, 635 A.2d 814 (1993). Section 52-576 (a) provides that “[n]o action for an
General Statutes § 38a-336 (b) provides in relevant part that “[a]n insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . . .” The purpose underlying underinsured motorist coverage is to protect a victim from “suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.” (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 88, 743 A.2d 156 (1999). The plaintiffs underinsured motorist coverage became necessary when the amount of his claimed damages from the accident exceeded General Indemnity’s settlement payment in the amount of its insured’s policy limit. The outcome of this appeal turns on our resolution of the issue of when General Indemnity exhausted by payment its insured’s policy limit because the plaintiff could not have successfully maintained a cause of action against the defendant until that time. See Wynn v. Metropolitan Property & Casualty Ins. Co., supra, 30 Conn. App. 807-808.
The plaintiff argues that General Indemnity did not exhaust its insured’s liability limit until it “satisfied” its
Application of § 52-576 requires us to determine the precise time at which General Indemnity “exhausted by payment” its settlement with the plaintiff. We begin our analysis by interpreting that statutory term to determine when exhaustion by payment occurs if payment is in the form of an uncertified check. That is an issue that no appellate court in this state has yet resolved. We undertake that exercise mindful that our interpretation should be faithful to the legislative intent behind the statute’s enactment and give effect to that legislative action. Gelinas v. West Hartford, 65 Conn. App. 265, 275, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). As in any exercise of statutory interpreta
The legislature did not define exactly when exhaustion by payment occurs. “Exhaust” is defined as “to empty ... to consume entirely.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999). “Payment” is defined as “the act of paying . . . something that is paid.” Id. The word is also defined as “[a] discharge in money or its equivalent of an obligation or debt owing by one person to another, and is made by debtor’s delivery to creditor of money or some other valuable thing, and creditor’s receipt thereof, for purpose of extinguishing debt.” Black’s Law Dictionary (6th Ed. 1990). Our Supreme Court has stated in a similar context that a policy is exhausted “only when the limit of coverage actually has been paid to the claimant.” Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 811, 663 A.2d 377 (1995).
Those definitions do not shed light on the issue of when payment occurs if a party makes payment, as here, by delivering an uncertified check. Although the payment by check in the present case was made for the purpose of settling an insurance claim, we are able to gamer guidance from the analogous context of payment by check for the payment of an obligation or debt.
“[T]he giving of a draft by a debtor to his creditor does not discharge the debt itself until the draft is paid, it being a means adopted to enable the creditor to obtain payment of the debt and remaining, until honored or paid, but evidence of the indebtedness . . . .” (Emphasis in original; internal quotation marks omitted.) Huybrechts v. Huybrechts, 4 Conn. App. 319, 321, 494 A.2d 593 (1985). In that light, we have recognized that the
It is well settled, however, that a debtor’s delivery of an uncertified check as payment for an obligation not only suspends his obligation to pay until such check is, upon its presentment, either honored or dishonored, but that once the check is honored, the obligation to pay no longer exists. Our legislature codified that principle in General Statutes § 42a-3-310 (b), which provides in relevant part: “[I]f a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and . . . [i]n the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check. . . .”
It is not disputed that General Indemnity was free to satisfy its settlement by paying the plaintiff with a check, a customary practice. We also recognize that payment by check is ordinarily understood to constitute payment for an obligation as of the moment of delivery
As one court explained, that rule recognizes the realities of modem day commerce and yields a sensible result, for “[i]f the check is dishonored on presentment to the drawee, no timely ‘payment’ has been made.” Duke v. Sun Oil Co., 320 F.2d 853, 862 (5th Cir. 1963).
Having reached that point in our analysis, we conclude that General Indemnity exhausted by payment its settlement with the plaintiff on April 26,1991. Pursuant to § 38a-336 (b), the plaintiff could have maintained a cause of action against its insurer for underinsured motorist benefits on that date. The six year statute of limitations set forth in § 52-576 permitted the plaintiff to bring a claim against the defendant, if he so desired, within six years. The plaintiff did not do so. Instead, he filed his written demand for arbitration on April 29, 1997. Accordingly, the plaintiffs application for an order to compel the defendant to proceed with arbitration is barred.
The judgment is affirmed.
In this opinion DRANGINIS, J., concurred.
General Statutes § 52-410 (a) provides in relevant part: “A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court . . . for an order directing the parties to proceed with the arbitration in compliance with their agreement. ...”
The plaintiff did not submit evidence to the trial court as to when exactly the check cleared. He argues that this is of no consequence because April 29, 1991, was the earliest date on which the check could have cleared, thereby enabling him to draw upon the deposited funds, and that if the court had used that date as the date of payment it also would have had to conclude that his demand for arbitration was timely.
An uncertified check is a negotiable instrument. As such, its use is governed by the provisions of article III of Connecticut’s Uniform Commercial Code, General Statutes § 42a-l-101 et seq. The provisions therein do not define when payment occurs if a note or an uncertified check is taken as payment for an obligation.
Our legislature intended the provisions of Connecticut’s Uniform Commercial Code, General Statutes § 42a-l-101 et seq., to be construed liberally so as “to simplify, clarify and modernize the law governing commercial transactions . . . .” General Statutes § 42a-1-102 (2) (a).
Dissenting Opinion
dissenting. I respectfully dissent from the
opinion of the majority. I would reverse the decision of the trial court, remand with a rescript ordering it to determine when the tortfeasor’s insurer’s check cleared and was paid, and if paid within six years of the date of the demand for arbitration, ordering it to compel arbitration and allow what is, in my opinion, a timely claim to proceed to arbitration in the usual manner.
First, I note that the plaintiffs attorney deposited the check received in settlement of the plaintiffs third party claim for collection in his account on the day it was received after proper indorsement by his client. The contract statute of limitations, which all agree governs, provides in pertinent part that “[n]o action . . . on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” General Stat
The majority defines “payment” as “ ‘[a] discharge in money or its equivalent of an obligation or debt owing ....’” Under Connecticut law, an uncertified check does not discharge the underlying obligation.
A check is a form of written instruction to pay a sum of money to a payee. See General Statutes §§ 42a-3-103 and 42a-3-104.
If an insurer agrees to a settlement of a third party claim and issues its check for the amount agreed upon, but the check is not honored, then payment of the claim has not been made.
It follows that payment of a claim made against an underlying tortfeasor’s insurance policy and exhaustion of that policy sufficient to trigger a supplementary claim made under the underinsured motorists provisions of the claimant’s own policy cannot occur or commence until the day the check is honored.
It seems to me that the situation is analogous to an executory accord until the check is honored and actually paid and that any statute of limitations which payment triggered the running of should not begin to run against the plaintiff until actual payment occurs.
“ ‘An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty.’ 2 Restatement (Second), Contracts § 281 (1981); W. H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963).” Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 809, 626 A.2d 729 (1993).
“Satisfaction of a claim may be found in either the promise to settle or the full performance of that promise. Connecticut law comports with the view that the intention of the parties is determinative of whether a settlement agreement constitutes an executory accord or a substitute agreement. Halloran v. Fischer, 126 Conn. 44, 46, 9 A.2d 290 (1939).” Air-Care N.O. Nelson Co. v. Patchet, 5 Conn. App. 203, 205, 497 A.2d 771 (1985).
“ ‘[I]t is not a probable inference that a creditor intends merely an exchange of his present cause of action for another. It is generally more reasonable to suppose that he bound himself to surrender his old rights only when the new contract of accord was performed.’ 15 Williston, supra, § 1847.” Air-Care N. O. Nelson Co. v. Patchet, supra, 5 Conn. App. 206.
In this kind of factual scenario, I would hold that the six year contract statute of limitations did not begin to run until the check of the tortfeasor’s insurer was honored because not until payment was the policy exhausted by payment.
The majority treats the delivery of an uncertified check by the tortfeasor’s insurer as the commencement date of the statute of limitations period, or not, depending on future events unknown at the time of the check’s delivery. Under this rule, if the uncertified check “is in fact paid in due course” at a later date, then the earlier delivery is treated as the beginning of the statute of limitations period. Conversely, “if the check is [later] dishonored on presentment,” the majority states that delivery is then deemed not to have triggered the limitations period after all. Where does this leave the plaintiff when he takes delivery of the check? Under this rule, the plaintiffs time to exercise his rights to recover underinsured benefits begins to run before he even has any such rights. This rule is “inconsistent with basic limitations principles.” Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of
A statute of limitations is a span of time in which a plaintiff has the right to bring a cause of action and after which the action is barred. Our Supreme Court’s use of the term “ ‘exhausted by payment’ ”; (emphasis added) Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 810, 663 A.2d 377 (1995); does not contemplate a looming cloud over the plaintiffs right to demand arbitration and to ask a court to compel arbitration if the demand is refused. By exhaustion, our Supreme Court meant that on the date in question, without the information derived from any later hind
For these reasons, I respectfully dissent from the majority opinion.
In this case, the underlying obligation of the tortfeasor’s insurance was to pay the policy limits, which would thereby “enforce” them, triggering the accrual of the plaintiffs cause of action for statute of limitations purposes.
Title 42a of the General Statutes is Connecticut’s enactment of the Uniform Commercial Code and may be cited as such. See General Statutes § 42a-l-101 et seq. Under these provisions, a check is defined in relevant part as a “draft, other than a documentary draft, payable on demand and drawn on a bank . . . .” General Statutes § 42a-3-104 (f). A draft is defined as an “instrument” that is “an order.” General Statutes § 42a-3-104 (e). Finally, an order is a form of “written instruction to pay money . . . .” General Statutes § 42a-3-103 (6).