58 Conn. App. 694 | Conn. App. Ct. | 2000
Opinion
This is an appeal by the named plaintiff, Evelyn Cosby Tolbert,
The following facts and procedural history are relevant to our analysis of the plaintiffs claim. In September, 1975, the plaintiff and her then husband secured a mortgage from Fleet’s predecessor in interest, Hartford Federal Savings and Loan Association (Hartford Federal).
In September, 1990, Connecticut General stopped paying disability benefits, and the plaintiffs mortgage account became delinquent. Northeast Savings, which had acquired Hartford Federal’s interest in the mortgage; see footnote 3; commenced foreclosure proceed
The plaintiff commenced this action against Connecticut General in 1994. More than eighteen months later, the court granted the plaintiffs motion to cite in Fleet as a party defendant. The plaintiff filed a substitute complaint in which she alleged, in count six, that she and Fleet’s predecessor in interest, Hartford Federal, “had a contract pursuant to which Hartford Federal was to procure a mortgage disability policy”; that “Hartford Federal . . . was to procure insurance which was adequate to protect the plaintiff’; that “Hartford Federal . . . breached its contract with the plaintiff ... in that it failed to procure insurance which was adequate to protect the plaintiff’; and that as a result of “Hartford Federal’s negligent failure to procure adequate insurance, the plaintiff . . . has incurred damages . . . .” (Emphasis added.) In its answer, Fleet essentially denied the allegations of the substitute complaint and interposed, in its first special defense, an allegation that the action was barred by the provisions of § 52-576,
After the jury returned a verdict against Fleet on count six, Fleet moved to have the verdict set aside. After the parties briefed and argued the issue, the court granted Fleet’s motion, ruling that the six year statute of limitations commenced running in September, 1975, when the parties entered into the contract rather than, as argued by the plaintiff, September, 1990, when the
“The trial court may set aside a jury verdict that the court finds to be against the law or the evidence. American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992); Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988); Cohen v. Hamden, 27 Conn. App. 487, 491, 607 A.2d 452 (1992). A trial court’s ruling to set aside the verdict will not be overturned on appeal unless the trial court abused its discretion. American National Fire Ins. Co. v. Schuss, supra, 774-75; Jeffries v. Johnson, 27 Conn. App. 471, 475,607 A.2d 443 (1992). Every reasonable presumption should be indulged in favor of the correctness of the trial court’s decision to set aside the verdict because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced. Cohen v. Hamden, supra [491]; Jeffries v. Johnson, supra, 475-76; Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992).” Caciopoli v. Acampora, 30 Conn. App. 327, 330-31, 620 A.2d 191 (1993).
Ordinarily, litigants have a constitutional right to have factual issues resolved by the jury. Berry v. Loiseau, 223 Conn. 786, 807, 614 A.2d 414 (1992); Donahue v. State, supra, 27 Conn. App. 140. In ruling on the motion to set aside the verdict in this case, however, the court was required to make a legal rather than factual determination. On appeal, we must consider whether the trial court properly determined that, as a matter of law, Fleet’s special defense of the statute of limitations bars the plaintiffs recovery. An action based in contract must be brought within six years. General Statutes § 52-576; McNeil v. Riccio, 45 Conn. App. 466, 472-73, 696 A.2d 1050 (1997).
It is important to note at the outset of our analysis that the factual underpinnings of this appeal differ greatly from the facts that were pleaded and proved at
As the court implied in its memorandum of decision on the motion to set aside the verdict, the plaintiffs objection to the motion is not founded in the same legal theory as the one she pleaded in count six.
Here, the plaintiff pleaded in her substitute complaint that Fleet’s predecessor in interest, Hartford Federal,
The judgment is affirmed.
In this opinion the other judges concurred.
The other plaintiffs in the trial court were Evelyn Tolbert’s sons, Ivan Tolbert and Volos Tolbert, who stepped forward to help their mother when her home was being foreclosed. Because count six of the substitute complaint alleges breach of a contract to which Tolbert’s sons were not a party, they are not parties to this appeal. We refer in this opinion to Evelyn Tolbert as the plaintiff.
The named defendant, Connecticut General Life Insurance Company, is not a party to this appeal. The jury found in favor of the plaintiffs on their negligence claim against Connecticut General Life Insurance Company; the parties settled their dispute.
Hartford Federal granted a mortgage to the plaintiff and her former husband. Hartford Federal’s interest in the mortgage was subsequently transferred to Northeast Savings (Northeast) and eventually to Fleet. Northeast was the lender that initiated foreclosure proceedings against the plaintiff.
The plaintiff placed in evidence a certificate of insurance issued by Connecticut General stating in part: “Connecticut General . . . CERTIFIES that the Mortgagor named below, being indebted to Hartford Federal . . . as evidenced by the obligation referred to below, has become insured with respect to such indebtedness under GROUP PROTECTED MORTGAGE DISABILITY INSURANCE POLICY NO. 31934-02 . . . issued to TRUSTEE OF THE SAVINGS AND LOAN LEAGUE OF CONNECTICUT MORTGAGE INSURANCE TRUST FUND . . . EFFECTIVE DATE: Oct. 6, 75 ... MORTGAGOR Evelyn E. Tolbert .... TERMINATION OF INSURANCE The insurance on a Mortgagor will terminate on the earliest date specified below ... 4. The date the Mortgagor attains age sixty-six. . . .”
General Statutes § 52-576 (a) provides: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”
The court wrote in the memorandum of decision: “The operative allegation in count six of the substitute complaint of February, 1998, was that Hartford Federal has agreed to procure a disability policy for [the plaintiff], which was adequate to protect her and make mortgage payments in the event she was to become disabled.” (Emphasis in original.)
Nor does the plaintiff allege that Fleet, or its predecessor in interest, Hartford Federal, fraudulently concealed facts or information from the plaintiff that would toll the statute of limitations. Goldwasser v. Smith Corona Corp., 817 F. Sup. 263, 270 (D. Conn. 1993).