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`SUPERIOR COURT Cn S05,
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`JUDICIAL DISTRICT OF NEW BRITAIN
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`DOCKETNO: HHB-CV-23-6080037-S
`LISA DIRENZO
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`V.
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`STATE FARM FIRE AND CASUALTY
`INSURANCE COMPANY
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`AT NEW BRITAIN
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`JANUARY3, 2025
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`MEMORANDUM OF DECISION
`RE: MOTION FOR SUMMARY JUDGMENT(113.00)
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`Theplaintiff, Lisa DiRenzo, brings this action sounding in breach of contract against the
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`defendant, State Farm Fire and Casualty Insurance Company, based on a dispute over whether
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`the plaintiff's property and casualty losses resulting from a motorvehicle accident were insured
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`by the defendant under an active insurance policy. Before the court is the defendant’s motion for
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`summary judgment claiming the absence of disputed material facts regarding the defendant’s
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`liability because the defendant properly cancelled the policy for nonpayment of premium before
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`the date of the accident that producedthe plaintiff's claimed losses.
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`BACKGROUND AND PROCEDURAL HISTORY
`The plaintiff's single-count complaintalleges the following facts. On or about December
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`15, 2022, the plaintiff was operating a motor vehicle and involved in an accident. At the time of
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`the accident, the plaintiff was insured for automobile property and casualty losses under an
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`insurancepolicy issued by the defendantto the plaintiff. The policy’s premium waspaid, and the
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`policy wasin full force and effect on December15, 2022. Asa result ofthe accident, the
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`plaintiffs vehicle wasa totalloss, and the plaintiff incurred towing,rental, and storage fees. The
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`plaintiff notified the defendant of the accident and did everything that was required of the
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`plaintiffunder the termsofthe policy. The defendanthasfailed or refused to satisfy the
`plaintiffs insurance claim as required by the termsofthe policy.
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`On September 18, 2024, the defendant filed a motion for summary judgment. The
`defendant’sposition is that there is no genuine issue ofmaterial fact regarding its contractual
`liability to the plaintiffbecauseit cancelled the policy for nonpaymentofpremium in accordance
`with General Statutes § 38a-343 (a) prior to the date ofthe subject accident. In support ofits
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`motion, the defendantfiled a memorandum oflaw and several exhibits, including: (1) a policy
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`renewal documentprepared on July 28, 2022, containing policy declarations and other
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`information for the policy term of September 23, 2022 to March 23, 2023; (2) a document
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`summarizing thebilling and paymenthistory applicable to the subject policy; (3) a cancellation
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`notice dated October 31, 2022 applicable to the subject policy; (4) a certificate of mailing
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`associated with the cancellation notice bearing a postmark dated November1, 2022; and (5) an
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`affidavit by Christine Adams, the defendant’s employee. The defendant’s position is that the
`submitted evidence demonstrates the absence of disputed material facts regarding the plaintiffs
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`presumedreceipt ofthe defendant’s cancellation notice, and therefore, the defendant’s
`compliance with its cancellation-related obligations under General Statutes § 38a-343 (a).
`On November1, 2024,the plaintiff filed an opposing memorandum of law and several
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`exhibits, including: (1) an affidavit by the plaintiff stating, among other things, that she never
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`received the notice of cancellation, that she believed she was insuredat the time of the accident,
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`and that she paid additional premiumsto the defendant after the date ofthe subject accident; and
`(2) a letter from the defendantto the plaintiffregarding the subject accident andtheplaintiff's
`insurance claim with no referenceto the policy’s cancellation. The plaintiff’s position is that the
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`evidence demonstrates the existence of disputed material facts regarding the plaintiff's receipt of
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`the defendant’s cancellation notice, and relatedly, the defendant’s compliance with § 38a-343
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`(a).
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`The court heard oral argument from the parties on November 18, 2024.
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`DISCUSSION
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`“Practice Book § 17-49 provides that summary judgmentshall be rendered forthwith if
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`the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to
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`any material fact and that the movingparty is entitled to judgmentas a matter of law.In deciding
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`a motion for summary judgment, the trial court must view the evidencein the light most
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`favorable to the nonmoving party.” (Internal quotation marks omitted.) Graham v. Commissioner
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`ofTransportation, 330 Conn. 400, 414-15, 195 A.3d 664 (2018).
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`“[T]he moving party for summary judgmenthas the burden of showing the absence of
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`any genuineissueasto all the material facts, which, under applicable principles of substantive
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`law, entitle[s] him to a judgmentas a matter of law. The courts hold the movanttoastrict
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`standard. Tosatisfy his burden the movant must make a showing thatit is quite clear what the
`truth is, and that excludesanyreal doubt as to the existence of any genuine issue ofmaterial fact.
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`... As the burden of proof is on the movant, the evidence must be viewedin the light most
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`favorable to the opponent. ... When documents submitted in support of a motion for summary
`judgment fail to establish that there is no genuine issue ofmaterial fact, the nonmoving party has
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`no obligation to submit documentsestablishing the existence of such an issue. .
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`.
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`. Once the
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`moving party has metits burden, however, the opposing party must present evidencethat
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`demonstrates the existence of some disputed factual issue. .
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`. It is not enough, however, for the
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`opposing party merely to assert the existence of such a disputed issue. Mere assertions offact .
`are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence
`properly presentedto the court under Practice Book § 380 [now 17-45].” (Internal quotation
`marks omitted.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629
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`.
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`(2019).
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`General Statutes §§ 38a-341 through 38a-344 govern the procedures for the cancellation
`of an automobile insurancepolicy by an insurer. Under § 38a-342, an insurer can choose to
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`cancel a policy due to the insured's failure to pay the premium. GeneralStatutes § 38a-343 (a)
`provides that “no notice of cancellation of a policy to which section 38a-342 applies shall be
`effective unless the notice is delivered or sent by the insurer to the named insured, and any third
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`party designated pursuantto section 38a-323a, by registered mail, certified mail, mail evidenced
`by a certificate ofmailingor, if agreed between the insurer and the namedinsured, by electronic
`means,at least forty-five days before the effective date of cancellation, except that (1) where
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`cancellation is for nonpaymentofthe first premium on a new policy,at least fifteen days’ notice
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`of cancellation accompanied by the reason for cancellation shall be given, and (2) where
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`cancellation is for nonpaymentof any other premium,at least ten days’ notice of cancellation
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`accompanied by the reason for cancellation shall be given. No notice of cancellation of a policy
`that has beenin effectfor less than sixty days shall be effective unless mailed or delivered by the
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`insurer to the insured and anythird party designee at least forty-five days before the effective
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`date of cancellation, except that (A)at least fifteen days’ notice shall be given where cancellation
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`is for nonpaymentofthe first premium on a new policy, and (B)at least ten days’ notice shall be
`given where cancellation is for nonpayment of any other premium or material misrepresentation.
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`Thenotice ofcancellation shall state or be accompanied by a statementspecifying the reason for
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`such cancellation. Any notice of cancellation for nonpaymentofthe first premium on a new
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`policy may be retroactive to the effective date of such policy, provided atleast fifteen days’
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`notice has been given to the insured andany third party designee and payment of such premium
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`has not been received during such notice period.”
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`“The purpose of § 38a-343is to assure that before an automobile insurance policy
`is cancelled the insured has a clear and unambiguousnotice ofthe cancellation.” (Internal
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`quotation marks omitted.) Kane v. American Ins. Co., 52 Conn. App. 497, 502, 725 A.2d 1000
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`(1999), aff'd, 252 Conn. 113, 743 A.2d 612 (2000).
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`In Echavarria v. National Grange Mutual Ins. Co., 275 Conn. 408, 880 A.2d 882 (2005),
`our Supreme Court clarified that an insurer may use a certificate ofmailing alone to prove the
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`mailing of a cancellation notice to a named insured, and thus, the insurer’s compliance with
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`cancellation-related obligations under § 38a-343 (a). In Echavarria, the plaintiffs brought suit
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`against an insurer seeking a declaration ofrights and obligations under an automobile insurance
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`policy. Id., 413. On appeal, the insurer argued that it had provided the plaintiffs with proper
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`notice of cancellation of their automobile insurance policy pursuant to § 38a-343 (a), and thus,
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`the insurer was notliable for claimsarising out of an accident that occurred after the date of
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`cancellation in the notice. Id. As evidencethat the cancellation notice was delivered or sent to the
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`plaintiffs, the defendant presented a certificate of mailing. Id., 411-12. Ultimately, the court held
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`“that sending a notice of cancellation by mail evidenced by a certificate of mailing satisfies the
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`obligation imposed by [§ 38a-343(a)].” Id. 414. The court also held that a determination under§
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`38a-343 (a) of whether a cancellation notice was received “is governed bythe mailboxrule,
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`which provides that a properly stamped and addressedletter thatis placed into a mailbox or
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`handedover to the United States Postal Service raises a rebuttable presumptionthatit will be
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`received.”Id., 418. Notably, the court in Echavarria did not specify what kind or quantity of
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`evidenceis required to overcomethat presumption,stating that “we need not consider the
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`sufficiency of evidence required to rebut the presumption of the mailbox rule because the
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`plaintiffs have not deniedreceipt of notice.” Id. 418-19, n.11. The court noted, however, that
`“our sister states require varying levels ofevidence to rebut the presumption ofreceipt generated
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`by the mailboxrule.” Id.
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`There is no Connecticut appellate authority that addresses the kind or quantity of
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`evidence neededto rebut the presumption of receipt created by the mailboxrule, andtrial courts
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`in Connecticut are not fully aligned on the issue. For example, in Rios v. Old Republic Ins. Co.,
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`Superior Court, judicial district ofNew Haven, Docket No. CV-04-4004614-S (December5,
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`2005, Lopez, J.) (40 Conn.L. Rptr. 429), the court denied the defendant-insurer’s motion for
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`summary judgment, which was brought on the groundthat the defendant hadproperly sent or
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`delivered notice of cancellation pursuant to § 38a-343(a) prior to the accident. The court denied
`the motion because “an affidavit asserting that notice was not received, rebuts the presumption,
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`thereby raising a question offact.” Id. See also Atwoodv. Progressive Ins. Co., Superior Court,
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`judicial district of Ansonia-Milford, Docket No. CV-95-0051089-S (September3, 1997,
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`Corradino, J.) (20 Conn. L. Rptr. 473) (denying defendant-insurer’s motion for summary
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`judgment wherethe defendant argued that the policy was properly cancelled and notin effect on
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`the date ofthe accident, stating “[i]f a letter or other document is mailed to the correct address
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`with correct postage,it is presumed that it was received. But the presumption is one of fact and
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`may berebutted .
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`.
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`. the denial of receipt in the plaintiff's affidavit makes the question an issue of
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`fact.” [Citation omitted.]); Provident Funding Associates, L. P. v. Sohn, Superior Court, judicial
`district ofFairfield, Docket No. CV-13-60037272-S (January 12, 2015, Jennings, J.T.R.) (59
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`Conn. L. Rptr. 579) (denying motion for summary judgmentin foreclosure action, the court
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`asserted that denial of receipt alone could be sufficient to overcome the presumption of receipt
`established by the mailbox rule: “[T]he presumptionofreceipt by the defendantis rebutted by
`the [defendant”s] sworn statement that he received no such notice.”).
`Analogously, in Zaneski-Nettleton v. Dept. ofSocial Services, Superior Court, judicial
`district ofAnsonia-Milford, Docket No. CV-16-5011698-S (May 5, 2017, Stevens, J.) (64 Conn.
`L. Rptr. 423), in the context ofdeciding a motion to dismiss,’ the court discussed what evidence
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`is needed to rebut the mailbox rule’s presumption of receipt. The court ultimately “agree[d] with
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`[the] apparent trend in the case law andreject[ed] the position that a denial alone can never be
`sufficient to rebut the presumption ofreceipt under the mailboxrule.” Id. The court reasoned that
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`“t]he evaluation ofthis issue should not be controlled by such a perserule thatalters the
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`established rules of evidence that would otherwise apply. .
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`.
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`. [T]he better reasoned approachto
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`this issue is that the trier of fact should evaluateall the relevant and probative evidence presented
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`by the parties to determine whetheran addressee has rebutted the presumption ofreceipt created
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`by the mailboxrule.”Id.
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`In AIG Casualty Co. v. Schweiger, Superior Court, judicial district of Hartford, Docket
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`No. CV-08-4035100-S (September 17, 2009, Bentivegna, J.) (48 Conn. L. Rptr. 593), where the
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`| The court addressed the mailbox rule in this context becausetheplaintiff's denial of receipt
`impacted the timeliness ofthe plaintiff's service of an administrative appeal.
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`plaintiff-insurerinitiated an action for a declaratory judgmentthat the defendant’s automobile
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`insurance policy had been properly cancelled, the court reached a seemingly equivocal
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`conclusion as to whether denial of receipt of a cancellation notice—by itself—is sufficient to
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`rebut the mailbox rule’s presumptionofreceipt. In Schweiger, in determining whetherthe notice
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`of cancellation satisfied the statutory requirements of § 38a-343 and the mailboxrule, the court
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`stated that “[a] simple denial of receipt is not sufficient to rebut the presumption [of the mailbox
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`rule].” The defendant attemptedto rebut the presumption ofreceipt with testimony denying
`receipt. Id. However, before finding that the defendant had not rebutted the presumption of
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`receipt, the court reasonedthat“[iJn order to determine whether [the defendant] presented
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`evidence that rebuts the presumption of the mailbox rule the court must evaluate her credibility..
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`. It is the quintessential function of the fact finder to reject or accept certain evidence. .. .”
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`(Internal quotation marks omitted.) Id. Thus, the court seemedto indicate that it is necessary for
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`a trier of fact to evaluate the credibility of a denial, perhaps implying that denial alone could be
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`sufficient to rebut the presumption or, at least, that denial aloneraises an issue offact.
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`In contrast, in Cirillo v. Burns, Superior Court, judicial district of New Haven, Docket
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`No. CV-14-6049603-S (June 25, 2018, Blue, J.) (66 Conn. L. Rptr. 612), a denial of receipt of a
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`cancellation notice—by itself—wasinsufficient to overcome the presumptionofreceipt
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`established by the mailboxrule. In deciding a motion for summary judgment and addressing
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`whether a homeowners’ insurance policy was effectively cancelled by a notice of cancellation,
`the court determined that a “[d]Jenial ofreceipt by the insureds, standing alone, is insufficient to
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`rebut the presumption [of the mailbox rule]. In addition to a claim of noreceipt, there must be a
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`showingthat routine office practice was not followed or wasso carelessthat it would be
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`unreasonable to assume the notice was mailed.” (Internal quotation marks omitted.) Id.
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`Accordingly, where the only evidence submitted by the plaintiff regarding receipt of notice was
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`an affidavit denyingreceipt of the notice of cancellation, the court found there was not sufficient
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`evidence to overcome the presumption of the mailboxrule.Id.
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`Similarly, in Volikas v. Kmart, Superior Court, judicial district of Ansonia-Milford,
`Docket No. CV-01-0076466-S (January 12, 2004, Robinson, J.), the court adopted the position
`| that a denial of receipt, without more,is insufficient to overcome the mailbox rule’s presumption
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`of receipt. In Volikas, the plaintiff objected to a motion to dismiss for lack of subject matter
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`jurisdiction arguing that she did notreceive notice of the defendant’s bankruptcy petition and bar
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`date for her claim, so the court retained subject matter jurisdiction even thoughtheplaintiff did
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`not file a proof of claim before the bar date. Id. The court granted the motion to dismiss
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`reasoning that “a mere denial ofreceipt is insufficient to rebut the presumption that mail was
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`received.” Id.
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`Federaldistrict courts in Connecticutare similarly unaligned on the issue of whether a
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`denial of receipt—by itself—is sufficient to overcome the presumption of receipt created by the
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`mailbox rule. Compare Caponev.Electric Boat Corp., United States DistrictCourt, Docket No.
`3:06CV1249 (JCH) (D.Conn. December 19, 2006) (denying defendant’s motion to compel
`arbitration finding that plaintiff's denial ofreceipt ofdefendant-company’s dispute resolution
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`policy sufficiently overcame presumption of receipt established by the mailbox rule and raised
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`issue of fact as to whethertheplaintiff had notice of the dispute resolution policy), with Bepko v.
`St. Paul Fire and Marine Ins. Co., United States District Court, Docket No. 3:04CV1996 (PCD)
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`(D. Conn. August 10, 2006) (denying defendant’s motion for summary judgment, the court
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`stated that to rebut the mailbox rule and create an issue of fact as to whetherplaintiff received
`notice of cancellation of his professional liability insurance: “A party must deny receipt... and
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`then provide substantial evidence in addition.” [Citations omitted; internal quotation marks
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`omitted.]).
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`In the present case, the defendant submitted evidence of a notice of cancellation stating
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`that the plaintiff's policy for the policy period September 23, 2022, through March 23, 2023,
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`would be cancelled effective November 21, 2022, if payment was not made by November18,
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`2022, along with a certificate of mailing for the notice of cancellation with a postmark dated
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`November1, 2022. Thus, the defendant’s evidence demonstrates the defendant’s compliance
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`with the cancellation requirements of § 38a-343 and creates a presumption under the mailbox
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`rule that the plaintiff received the notice of cancellation. In response, the plaintiff's evidence
`contains a denial ofreceipt, made underoath. Theplaintiff's evidence also includesa letter from
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`the defendant concerning the subject accident andtheplaintiff's related insurance claim with no
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`reference to the policy’s cancellation. The plaintiff's affidavit also states that she made additional
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`paymentsafter the accident, apparently in support of her position that the policy was still in
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`effect at the time of the accident and thereafter.
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`The court is mindful that the “purpose of § 38a-343 is to assure that before an automobile
`insurancepolicy is cancelled the insured has a clear and unambiguous notice ofthe
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`cancellation.” Kane v. American Ins. Co., supra, 52 Conn. App. 502. Althoughthe plaintiff
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`argues that her submitted evidence demonstrates more than a denialof receipt, this court adopts
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`the approach accepted by several Connecticuttrial courts: that denial of receipt alone could be
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`sufficient evidence to overcome the presumption ofreceipt established by the mailbox rule. In
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`doing so, this court is persuaded by the reasoning in Zaneski-Nettleton v. Dept. ofSocial
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`Services, supra, 64 Conn. L. Rptr. 423: “the trier of fact should evaluate all the relevant and
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`probative evidence presentedby the parties to determine whether an addresseehas rebutted the
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`presumptionof receipt created by the mailbox rule.” This approach “recognizes therole of the
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`trier to resolve disputed factual issues based on the established evidentiary rules regarding the
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`evaluation of witnesses’ testimony and the weighing of the evidencein its entirety.” Id.
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`Moreover, this approachis in line with established evidentiary principles: “[t]he sifting and
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`weighing ofevidence is peculiarly the function ofthe trier.” Smith v. Smith, 183 Conn 121, 123,
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`438 A.2d 842 (1981).
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`CONCLUSION
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`For the foregoing reasons and based on the evidence submitted by the parties, there is a
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`genuine issue of material fact regarding theplaintiff's receipt of the defendant’s notice of
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`cancellation, and relatedly, the defendant’s compliance withits cancellation-related obligations
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`under § 38a-343 (a).
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`Accordingly, the defendant’s motion for summary judgment is DENIED.
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` Eric P. Smith, Judge
`Connecticut Superior Court
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