Wheeler v. Metro. Prop. Cas. Ins., No. Cv95 32 82 62 S (Dec. 17, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT Defendant Metropolitan Property and Casualty Insurance Company moves for summary judgment against plaintiffs Fred. W. Wheeler and Joan Ann Wheeler. The Wheelers seek to recover under an insurance policy for the loss they incurred when property was stolen from their home. They also seek to recover for what they claim are unfair insurance practices, see General Statutes §38a-815 et seq., and unfair trade practices, see General Statutes § 42-110a. For the reasons stated below, the motion for summary judgment is denied.

The defendant first claims summary judgment should be granted because the plaintiffs have failed to bring their action within twelve months of the date of loss as required by the policy of insurance. The plaintiffs' response to this special defense is that "Metropolitan should be estopped from relying on any such provision in the policy due to its delay in responding to plaintiffs' claims for loss." The plaintiffs have submitted an affidavit in support of their estoppel claim. Whether the defendant is estopped from relying on the contractual limitation presents a question of fact, which can not be resolved on a motion for summary judgment.

The defendant next claims summary judgment should be granted on the theory the plaintiffs are barred under the doctrine of judicial estoppel from showing the value of the stolen property was more than the value the plaintiffs placed on the property in a bankruptcy proceeding. Whether the plaintiffs made statements which are inconsistent with their present position presents a CT Page 6739 question of credibility, which should be resolved at trial.

The motion for summary judgment is denied.

THIM, JUDGE