Ahern v. Aetna Casualty Surety Co., No. Cv93 0354867 (Jul. 13, 1994)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION The plaintiff seeks summary judgment as to liability only as to her claim for underinsured motorist benefits from the defendant.

The defendant has admitted that on the date of the motor vehicle accident in which the plaintiff alleges that she sustained injuries, there was in effect underinsured motorist coverage in a policy which it had issued to the plaintiff. In its answer, the CT Page 7332 defendant has left the plaintiff to her proof concerning fault, exhaustion of the coverage of the alleged tortfeasor, and the extent of her injuries.

The defendant has raised numerous special defenses, including (Fifth Special Defense) failure to institute a claim within three years of the accident, which is alleged to have occurred on October 28, 1990.

The movant has failed to provide the court with the text of the clause of the insurance contract relied upon with regard to the time within which a claim for underinsured motorist benefits must be instituted. Even assuming that P.A. 93-77 and a three year time limitation applies, see Aetna Life Casualty Co. v. Braccidiferro,34 Conn. App. 833 (6/28/94), examination of the court file reveals that this case was commenced on November 22, 1993, more than three years after the date of the accident. The plaintiff has supplied no affidavit or other submissions to establish that any tolling period applies and has not established the existence of undisputed facts establishing the timeliness of her claim.

Summary judgment is appropriate only when it is clear what the facts are, that there are not disputed issues of material fact, and that the facts entitle the movant to judgment as a matter of law. Practice Book § 384; Suarez v. Dickmont Plastics Corp. ,229 Conn. 99, 105 (1994).

The plaintiff has failed to discharge this burden since her submissions do not establish compliance with the applicable provisions of the insurance policy concerning the bringing of claim for benefits, an issue raised by the cited special defense.

The plaintiff's motion for summary judgment is denied.

Beverly J. Hodgson Judge of the Superior Court