NO. X03- HHD-CV20-6135938S
`
`SUPERIOR COURT
`
`LEE & KELEEN DEER
`
`V.
`
`NATIONAL GENERAL INSURANCE
`COMPANY, ET AL
`
`COMPLEX LITIGATION
`AT HARTFORD
`
`NO.: HHD-CV21-6145076-S
`
`LEE DEER, ET AL
`
`V.
`
`SUPERIOR COURT
`
`J.D. OF HARTFORD
`AT HARTFORD
`
`THE TRAHAN AGENCY, INC., ET AL
`
`NOVEMBER 4, 2021
`
`MEMORANDUM OF LAW IN SUPPORT OF THE PLAINTIFFS' OBJECTION
`TO THE DEFENDANTS', THE TRAHAN AGENCY, INC. AND KEVIN
`TRAHAN, MOTION FOR SUMMARY JUDGMENT
`
`The Plaintiffs, Lee and Keleen Deer, respectfully submit the following
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`Memorandum of Law in support of their Objection to the Defendants' , The Trahan
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`Agency, Inc. and Kevin Trahan [hereinafter collectively "Trahan Agency"], Motion for
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`Summary Judgment. For the reasons set forth below, the Plaintiffs urge this Court to
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`deny the Defendants' Motion for Summary Judgment in its entirety.
`
`I.
`
`FACTUAL BACKGROUND
`
`The Plaintiffs, Keleen and Lee Deer, are the resident owners of their home
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`located at 52 Gurley Road in Waterford, Connecticut. (Exhibit A - Affidavit of Lee Deer)
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`(Exhibit B -Affidavit of Keleen Deer). The Defendant, The Trahan Agency, Inc.,
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`THE REARDON LAW \.1RM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. 102515
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`

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`operated an insurance agency in Niantic, Connecticut, and was an exclusive or captive
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`Allstate Insurance representative from which customers could obtain Allstate insurance
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`products. (Exhibit C - Trahan Deposition page 115-118). From 2001 up to and until
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`2020, with the exception of a brief period of time during which the Plaintiffs were
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`customers of another insurance agency1, the Plaintiffs were customers of Allstate
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`Insurance Company, with policies secured through the Defendant Trahan and its
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`predecessor agency. (Exhibit C - Trahan deposition page 144-145) (Exhibit D -
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`computer printout) (Exhibit E - Perry deposition page 26-27).
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`The Defendant Trahan was a captive insurance agent and representative of
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`Allstate Insurance Company and as such was contractually bound by Allstate Insurance
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`Company to only sell Allstate Insurance policies to their customers and advertised itself
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`to the general public, including the Plaintiffs, as an exclusive Allstate Insurance
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`Company representative by using allstate.com email addresses and posting the Alllstate
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`Insurance name and logo on its office building. (Exhibit C - Trahan deposition page
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`210-211) (Exhibit F - Lee Deer deposition pages 129-131).
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`Sometime prior to June 2019, Allstate withdrew from selling homeowners
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`insurance to Connecticut residents. (Exhibit C - Trahan deposition page 118-121 ).
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`Connecticut Allstate captive agents would be left to sell principally auto insurance which
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`would be much less profitable because Allstate auto and homeowners insurance
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`products could no longer be combined or bundled at a discount or savings to
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`1 From March of 2017 through approximately June of 2019 the Plaintiff's obtained their hnmPnwnF>rs insurance
`through the Louis Panciera Insurance Agency in Westerly, Rhode Island.
`
`THE REARDON LAW t-IRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juri s No. 102515
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`customers. (Exhibit C - Trahan deposition page 118-121 ). As a result, Allstate captive
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`agents, including the Defendant Trahan, negotiated an addendum to their exclusivity
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`agency agreement with Allstate which allowed Connecticut agents to participate in a
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`newly created "Expanded Insurance Program" that allowed Allstate captive agents to
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`place insureds with homeowner's insurance companies that were selected by Allstate
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`and willing to assume the risk of insuring homes in Connecticut. (Exhibit C - Trahan
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`deposition page 118-122, 128-134, 203-204).
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`On June 26, 2019, the Plaintiffs returned to the Defendant Trahan to move their
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`homeowner's insurance from the Louis Panciera Insurance Agency back to the Trahan
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`Agency because of the prior relationship they had with the Defendant Trahan Agency
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`including the special relationship they had with its office manager Jessica Perry.
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`(Exhibit C - Trahan deposition page 139-140) (Exhibit F - Lee Deer deposition pages
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`133-137, 140). Despite being insured by Allstate since 2001, according to the
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`Defendant Trahan, the Plaintiffs were not eligible for Allstate homeowner's insurance
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`because they were now considered a "new applicant" with Trahan and Allstate no
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`longer provided homeowner's insurance. (Exhibit C - Trahan deposition page 140).
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`With the assistance of the Defendant Trahan, specifically its office manager Jessica
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`Perry, the Plaintiffs obtained a homeowner's insurance policy for the 52 Gurley Road
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`residence. (Exhibit C - Trahan deposition page 139-140) (Exhibit E - Perry deposition
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`page 32) (Exhibit G - homeowner's policy). The application was completed by Jessica
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`Perry on her computer. (Exhibit D - computer printout application) (Exhibit H -
`
`THE REARDON LAW j:;-JRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No . 102515
`
`

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`Hammond deposition page 31-32, 51-52). At no time did the Defendant Trahan inform
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`the Plaintiffs of its use of the Expanded Insurance Program or that their homeowners
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`insurance was being placed with NGIC.
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`The NGIC insurance policy period was from June 27, 2019 through June 27,
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`2020. (Exhibit I - National General Declarations Page). Said policy included coverage
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`for the loss of the dwelling, other structures, personal property, and loss of use. (Exhibit
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`I - National General Declarations Page). On July 5, 2019, an exterior home inspection
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`was perlormed by Mueller Inspection Services at the request of NGIC, which revealed
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`that a small 10 foot by 12 foot portion of the exterior of the Plaintiffs' home was missing
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`siding. (Exhibit J - photo of home). Lee and Keleen Deer were not aware that an
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`inspection had been perlormed and were not informed of the results of the inspection
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`until after the July 15, 2020 fire. (Exhibit F - Lee Deer deposition, pages 70, 97, 113-
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`114) (Exhibit K - Keleen Deer deposition, page 80).
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`On July 24, 2019, Vanessia Babbitt, a home inspection assistant with the
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`Defendant NGIC, sent Jessica Perry, office manager of The Trahan Agency, an email
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`attaching the Mueller inspection report and requested that Perry "discuss the situation
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`with your insured, as repairs are required as a condition of continued coverage."
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`(Exhibit L - July 24, 2019 email). On March 27, 2020, Babbitt sent Perry another email
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`regarding the Mueller inspection report and the missing siding, in which she wrote, "we
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`have not received a response regarding the below request for repairs ... due to not
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`receiving a response the policy has been set to non-renew." (Exhibit M - March 27,
`
`THE REARDON LAW iIRM, P.C.
`Attorneys at Law
`160 Hemps tead Street • p .0. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. I 025 I 5
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`

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`2020 email). No evidence has been produced to date that Perry or any agent or
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`employee of the Defendant Trahan Agency ever responded to either of Babbitt's emails.
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`(Exhibit H - Brett Hammond deposition, pages 93-95).
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`Thereafter, on April 20, 2020, the Defendant NGIC mailed a Notice of
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`Nonrenewal to the Plaintiffs informing them that their homeowner's insurance would be
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`non-renewed at 12:01 on June 27, 2020 unless the exposed portion of their home was
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`repaired with siding. 2 (Exhibit N - notice of nonrenewal letter). The April 19, 2020
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`Notice of Nonrenewal letter was also mailed to the Defendant Trahan Agency. NGIC
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`chose to mail Plaintiff's notice letter via the United States Post Office with certified
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`return receipt requested (certified number 9414 8108 9876 5057 9873 18) to the
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`Plaintiffs at their home at 52 Gurley Road in Waterford. (Exhibit N - notice of
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`nonrenewal letter). The United States Post Office Electronic Delivery Confirmation
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`Report indicates that the delivery of the certified Notice was attempted on April 23,
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`2020, however "no recipient was available" and the Notice was returned to the
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`Waterford Post Office. (Exhibit O - USPS electronic delivery confirmation report).
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`Thereafter, on May 6, 2020, the Notice was deemed "unclaimed" and returned to the
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`Defendant NGIC. (Exhibit O - USPS electronic delivery confirmation report). The
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`driveway to the Deer's home is located on Oil Mill Road while the mailbox is located on
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`Gurley Road, "so there's always a great deal of confusion" with postal deliveries.
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`(Exhibit F - Lee Deer deposition, pages 79-81).
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`2 The Notice of Nonrenewal was dated April 19, 2020.
`
`THE REARDON LAW 1-'IRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Dra wer 1430 • New London, CT 06320 • Tel. ( 8 60) 442-0444 • Juri s No. 102515
`
`

`

`Both Lee and Keleen Deer never received any notice in any form from any
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`Defendant regarding the intention of NGIC to non-renew their homeowner's policy nor
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`did they receive any notice or reminder from the United States Postal Service regarding
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`the Defendant's certified letter. (Exhibit A - Lee Deer Affidavit) (Exhibit B - Keleen Deer
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`Affidavit) (Exhibit K - Keleen Deer deposition, page 105-106) (Exhibit F - Lee Deer
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`deposition, pages 76-77, 82-83, 92-95, 97-98, 135-137) (Exhibit E - Jessica Perry
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`deposition, pages 189-193).
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`On July 15, 2020, at approximately 3:00 am, the Plaintiffs' home was destroyed
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`by an accidental fire. (Exhibit P - photos of home/fire). At approximately 4:00 am,
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`believing that his homeowners insurance was placed with Allstate by Jessica Perry and
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`the Defendant Trahan, Lee Deer called the Allstate Insurance Company Claims 800
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`number while still at the fire scene to report that his home had burned down. (Exhibit K
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`- Keleen Deer deposition, pages 121-122). The Allstate Claims Representative advised
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`Mr. Deer that she had no record of the Deers having homeowners' insurance with
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`Allstate. (Exhibit E - Jessica Perry deposition, pages 193-194 ). Mr. Deer then placed
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`calls to the Trahan Agency from the fire scene at 4:28 AM, 8:32 AM, and again at 9:27
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`AM without success. 3 (Exhibit Q - Trahan call history phone records).
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`At 9:35 am, Jessica Perry called NGIC. The phone call is documented in the
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`NGIC Workflow Manager record where Ms. Perry is misidentified by NGIC as "Beth."
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`(Exhibit R -August 12, 2020 NGIC email notes). In that phone call, Ms. Perry "wanted
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`'The last four digits of the Trahan Agenc:y µhu11e 11u1nber are 02'.:i9 and the last four digit~ of Lee Deer's phone
`number are 8649.
`
`THE REARDON LAW iIRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. 102515
`
`

`

`l
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`to know if the insureds policy was NR [non-renewed] for he had a house fire last night."
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`(Exhibit R - August 12, 2020 NGIC email notes). Ms. Perry was informed by NGIC that
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`the Deer's policy had non-renewed on June 27, 2020. (Exhibit R -August 12, 2020
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`NGIC email notes). At 9:39 am Ms. Perry called Lee Deer to inform him that NGIC had
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`non-renewed his homeowner's policy and that NGIC would not be covering the July 15,
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`2020 house fire. (Exhibit Q - Trahan call history phone records) . At 9:52 am, Ms. Perry
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`emailed Lee Deer that the "home policy w/ NatGen nonrenewed on 6/27/20 due to
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`unresolved inspection issues." (Exhibit S - July 15, 2020 Email). Lee Deer was
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`shocked when he found out he was not insured with Allstate and he was not aware that
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`his homeowner's insurance was "not in force" and had not been renewed. (Exhibit E -
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`Jessica Perry deposition, page 195) (Exhibit F - Lee Deer deposition, page 136). The
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`Deers have maintained to this day that they never received the April 19, 2020 Notice of
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`Non-Renewal from NGIC and were never made aware by the Defendant Trahan or the
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`Defendant NGIC of said nonrenewal. (Exhibit E - Jessica Perry deposition, pages 198-
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`199). No evidence has been presented by any Defendant to the contrary.
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`On July 23, 2020, Jessica Perry finally responded to NGIC's emails regarding the
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`Notice of Non-Renewal and provided Erin Kelso, an agency specialist with NGIC, a
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`copy of the Notice of Non-Renewal that Trahan had previously received. (Exhibit T -
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`July 23, 2020 email). This email was forward to other individuals at NGIC including
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`Marie Schweitzer and Brett Hammond, in the NGIC Underwriting Department, who
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`discussed how Trahan was "covering themselves" because they had in fact received the
`
`THE REARDON LAW i<IRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No . 102515
`
`

`

`notice of non-renewal and the insureds - the Deers - had not. (Exhibit T - July 23,
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`2020 email).
`
`II.
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`STANDARD OF REVIEW
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`Connecticut Practice Book § 17-49 provides that summary judgment "shall be
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`rendered forthwith if the pleadings, affidavits and any other proof submitted show that
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`there is no genuine issue as to any material fact and that the moving party is entitled to
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`judgment as a matter of law." Hammer v. Lumberman's Mutual Casualty Co., 214 Conn.
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`573, 578 (1990). The purpose of a motion for summary judgment is "to resolve litigation
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`when pleadings, affidavits, and any other proof submitted show that there is no genuine
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`issue of any material fact and that the moving party is entitled to judgment as a matter
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`of law." Wilson v. New Haven, 213 Conn. 277, 279 (1989).
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`"Issues of negligence are ordinarily not susceptible of summary adjudication but
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`shoulder be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn.
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`442, 446 (1984). "Summary judgment is especially ill-adapted to negligence cases
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`where ... the ultimate issue in connection involves mixed question of fact and law, and
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`requires the trier of fact to determine whether the standard of care was met in a specific
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`situation ... the conclusion of negligence is necessarily one of fact." Michaud v.
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`Gurney, 168 Conn. 431,434 (1975).
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`"It is without question that the jury is the ultimate arbiter of fact and credibility. As
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`such, it may believe or disbelieve all of any portion of the testimony offered. It is also
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`the absolute right and responsibility of the jury to weigh conflicting evidence." Stuart v.
`
`THE REARDON LAW l}IRM P.C.
`Attorneys at Law
`160 Hempstead Street • p .0. Drawer I 430 • New London , CT 06320 • Tel. (860) 442-0444 • Juris No. 1025 I 5
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`

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`Stuttif, 63 Conn. App. 222, 226 (2001 ). "A trier of fact is free to reject testimony even if
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`it is uncontradicted ... and is equally free to reject part of the testimony of a witness
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`even if other parts have been found credible ... " State v. Alvardao, 62 Conn. App. 102,
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`111 (2001).
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`The party seeking summary judgment has the burden of showing the absence of
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`any genuine issue of material fact that, under applicable principles of substantive law,
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`entitle him to a judgment as a matter of law. kl A "material" fact is one that will make a
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`difference in the outcome of the case. Hammer, 214 Conn . at 578 (1990). Thus, "(t]he
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`party moving for summary judgment has the burden of showing the absence of any
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`genuine issues as to all material facts, which under applicable principles of substantive
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`law, entitle [him or her] to judgment as a matter of law." Dougherty v. Graham, 161
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`Conn. 248, 250 (1971 ). To satisfy its burden, the moving party must make a showing
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`that it is quite clear what the truth is, and that excludes any real doubt as to the
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`existence of any genuine issue of material fact. kl
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`"[T]he trial court may consider, in addition to the pleadings, affidavits and any
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`other proof submitted by the parties." Pepe v. New Britain, 203 Conn. 281, 285-86
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`(1987) (internal quotation marks omitted). "[T]he parties are entitled to consideration ,
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`not only of the facts presented by their affidavits, but of the inferences which could be
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`reasonably and logically drawn from them as well." De Dominicis v. American National
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`Fire Ins. Co., 2 Conn. App. 686, 687 (1984) (internal quotation marks omitted).
`
`THE REARDON LAW ilRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. 102515
`
`

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`Ill.
`
`LAW AND ARGUMENT
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`A. Defendant Trahan Did Not Comply With Connecticut General Statutes §
`3Ba-323, Which Requires Actual Notice Be Received By The Insured
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`The Defendant Trahan failed to comply with Connecticut General Statutes § 38a-
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`323, which read in conjunction with Connecticut General Statutes§ 38a-323(c) and the
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`legislative history of these statutes, requires actual notice be received by the insured
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`before non-renewal can occur. Connecticut General Statutes § 38a-323 states, in
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`relevant part: "(a) (1) no insurer shall refuse to renew any policy ... unless such insurer
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`or its agent sends, by registered or certified mail or by mail evidenced by certificate of
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`mailing, or delivers to the named insured, at the address shown in the policy, at least
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`sixty days' advance notice of its intention not to renew." Connecticut General Statutes§
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`38a-323 (c) provides a remedy when the insurer fails to comply with this statute. It
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`states, "failure of the insurer or its agent to provide the insured with the required
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`notice of nonrenewal ... shall entitle the insured to (1) renewal of the policy for a term
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`of not less than one year." (Emphasis added). Thus, reading the two statutes together,
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`it is clear that the legislature intended that the insured be made aware of the insurance
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`company's intention to non-renew through actual notice or the penalty would apply.
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`The Court described the legislative intent in enacting Connecticut General
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`Statutes§ 38a-323, the non-renewal statute, in Lem ieux v . New London County Mutual
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`Insurance, 68 Conn L. Rptr. 835 (June 24, 2019). In that case, the Court noted that,
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`The clear legislative purpose underlying § 38a-323 from the outset was to
`provide advance notice to a policyholder that the coverage he or she has under
`an existing policy will no lonyet be available or will be available at a different
`
`1t
`
`lIRM P.C.
`THE REARDON LAW
`Attorneys at L a\v
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. 102515
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`

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`price. The legislature determined that insurers must provide such notice in
`advance of the existing policy's expiration to provide the policyholder a
`meaningful opportunity to explore alternatives. Where substantial change in the
`scope of coverage is proposed , the legislative purpose can only be achieved
`when the policyholder has advance notice of the proposed changes .. . . The
`insured's advance knowledge of a substantial change in the scope of coverage is
`essential if, as the legislature intended, the insured is to have time to intelligently
`explore alternatives to the contract being offered by the insurer."
`
`See also, Leibowitz v. Merrimack Mutual Insurance Company, Docket No
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`TTDCV176012151, 1029 WL 3406885 (June 24, 2019) (noting that the legislative
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`purpose underlying §38a-323 as written in 2016 was to ensure policyholders were made
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`aware of changes to their policies before they went into effect).
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`The legislative history regarding the non-renewal Statute supports the conclusion
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`that it was intended that actual notice of non-renewal be received by the insured before
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`it could properly, and legally, occur. On February 7, 1985, the Insurance and Real
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`Estate Committee debated and discussed Senate Bill 382 entitled, An Act Concerning
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`Advanced Notice Requirements for Non-Renewal of Insurance Policies, specifically the
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`amount of time if would take for a certified letter of non-renewal to be delivered to the
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`insured. During this discussion, comparison was made to Connecticut General Statutes
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`§ 38-175 (i), which pertained only to automobile insurance but contained "the exact
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`same language" as Senate Bill 382:
`
`Ms. Melley: 4 Section 2 of this Bill references Section 38-175(i) of the
`General Statutes and that has the exact same language
`as Section 1 of this Bill and it pertains only to auto
`insurance so current law in Connecticut mandates that
`auto insurance notice of non-renewal follows this
`
`4 Maura Melley was the Vice President of the Insurance Association or Connecticut at the time of her testimony on
`February 7, 1985.
`
`THE REARDON LAW 1JrRM, P.C.
`Att orneys at
`aw
`160 Hempstead Street • P .O . Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No . 102515
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`exact same language. What the Department is doing
`is extending this for the requirements on the auto
`insurance also into the fire lines, the homeowner's
`line. So the auto insurance is being handled this way now.
`(emphasis added).
`
`Rep. Karsky: You mean a non-renewal on an auto policy, a person
`must receive written notice 30 days. (emphasis added).
`
`Ms. Melley: Current law requires that, yes.
`
`(Exhibit U - Insurance and Real Estate Legislative History). This exchange
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`during the Committee hearing demonstrates that the legislature intended that
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`the insured actually receive written notice on non-renewal before it would be
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`allowed.
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`On April 17, 1985, the Connecticut General Assembly approved
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`Senate Bill 382. During the discussion about the Bill, Senator Schoolcraft
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`clarified that " this Bill would require that the insurance companies would have
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`to notify by certified or registered mail, to the insured, at least prior 30 days
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`prior to the end of his policy and also what would happen, he'd have certain
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`rights if they failed to do this, to give him proper notification . .. if they were
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`not going to renew it they would have to give him the reasons for renewal."5
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`(Exhibit V - General Assembly Legislative History).
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`Bulletin PC-66 from the State of Connecticut Insurance Department regarding
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`Cancellation and Nonrenewal of Personal and Commercial Insurance Policies further
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`5 Senator Schoolcraft was present during the February 7, 1985 Insurance and Real Estate Committee hearing.
`
`12
`THE REARDON LAW FIRM, P.C.
`Attorneys at La=
`160 Hempstead Street • P.O. Dra wer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. 102515
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`clarifies that actual notice received by the insured is required under Connecticut
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`General Statutes § 38a-323. The Bulletin states that "notice of nonrenewal must be
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`given to the insured a minimum number of days in advance of the effective non renewal
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`date." (Exhibit W - Bulletin PC-66, page 3) (emphasis added).
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`Based on the legislative history there can be no question that the Defendant
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`failed to comply with the terms of Connecticut General Statutes § 38a-323, which the
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`legislature intended the "insurer or its agent" to provide actual notice. That is why
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`they also chose the language included in subsection (c), which indicates that failure to
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`"provide the insured" with the required notice subjects the insurer to a penalty of
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`continuation of the policy for a term of not less than one year. If the legislature intended
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`that proof of mailing to the insured was sufficient to satisfy the Statute, they would not
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`have specified that the insured must be provided with notice. In plain terms, the Statute
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`would have no real purpose if it could be complied with by sending a letter as it clearly
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`was meant to ensure that the insured knew about the non-renewal before it happened.
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`The undisputed fact is that NGIC and Trahan did not ensure that the Deers knew
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`about the non-renewal. Rather, they sent a letter to the Deers notifying them of the
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`intent to non-renew that was never received by them. (Exhibit O - USPS electronic
`
`delivery confirmation report) (Exhibit A - Lee Deer Affidavit) (Exhibit B - Keleen Deer
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`Affidavit) (Exhibit K - Keleen Deer deposition, page 105-106) (Exhibit F - Lee Deer
`
`deposition, pages 76-77, 92-95, 97-98, 135-137) (Exhibit E - Jessica Perry deposition,
`
`pages 189-193).
`
`13
`THE REARDON LAW FIRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London , CT 06320 • T e l. ( 8 60) 442-0444 • Juris No. 102515
`
`

`

`Simply put, at no time up to and including April 28, 2020 (60 days before
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`expiration of the policy) did Trahan inform the Deers about the non-renewal as required
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`by General Statutes § 38a-323. (Exhibit A - Lee Deer Affidavit) (Exhibit B - Keleen Deer
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`Affidavit) (Exhibit K - Keleen Deer deposition, page 105-106) (Exhibit F - Lee Deer
`
`deposition, pages 76-77, 92-95, 97-98, 135-137) (Exhibit E - Jessica Perry deposition,
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`pages 189-193).
`
`B. The Evidence Demonstrates That The Plaintiffs Never Received Notice,
`Which Is Sufficient To Rebut Any Presumption Of Receipt Under The
`Mailbox Rule
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`Should the Court apply the Mailbox Rule to evaluate whether the notice was ever
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`received by the Plaintiffs, which our Courts have done interpreting similar insurance
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`statutes in other cases, it will readily conclude that the Plaintiffs have presented
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`sufficient evidence to rebut the presumption that they received the notice after it was
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`placed in the mail by NGIC. The Mailbox Rule, applied by the Connecticut Supreme
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`Court in Echavarria v. National Grange Mutual Insurance Co., 275 Conn. 408 (2005),
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`provides that "a properly stamped and addressed letter that is placed into a mailbox or
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`handed over to the United States Postal Service raises a rebuttable presumption that it
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`will be received." Here, there can be no question that the Plaintiffs can rebut the
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`presumption that the notice was received, because it was never collected by them and
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`was mailed back unclaimed to NGIC, and because they have testified that they never
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`received it. The Defendants do not dispute this. Thus, under the Mailbox Rule, the
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`Plaintiffs can establish that the non-renewal notice was never received by them and
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`14
`THE REARDON LAW FIRM, P.C .
`Attorneys a t Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, C T 06320 • Tel. (860) 442-0444 • Juris No . 102 515
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`there is no genuine issue of material fact that should permit these claims to proceed to
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`the Jury. The Plaintiffs have submitted unrefuted evidence through affidavits and
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`deposition testimony that they never received the notice of non-renewal.
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`Thus, not only have the Plaintiffs denied receiving the notice of non-renewal,
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`but the evidence demonstrates that their assertions are true. As a result, the Plaintiffs
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`have successfully rebutted the presumption of receipt contained in the mailbox rule and
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`this Motion for Summary Judgment should be granted. See also Starr v. Pistone, 47
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`Conn. L. Rptr. 67 (January 9, 2009) (in which the Court discussed the automobile
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`cancellation statute and concluded that it required that the insured had "clear and
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`unambiguous notice of the cancellation."
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`C. Supreme Court Case Law from Nearby Jurisdictions and Public Policy
`Considerations Support The Conclusion That Actual Notice To The
`Insured Is Required Under The Statute, Contract And Case Law
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`Public policy considerations and case law from other jurisdictions also support
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`the conclusion that actual notice of the intent to non-renew is required in Connecticut in
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`order for an insurer to non-renew a policy. In Larocque v. Rhode Island Joint
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`Reinsurance Association, 536 A.2d 529 (1988), a case with facts nearly identical to this
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`one, the Rhode Island Supreme Court thoroughly analyzed similar language in that
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`State's insurance cancellation Statute and in the insurance policy at hand, and
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`concluded that "fundamental fairness" required that the insurance company do more to
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`ensure that the insured was notified of cancellation. That case, and the notion that
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`1
`THE REARDON LAW
`~IRM P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No . 102515
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`

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`fundamental fairness be applied in this case in order to achieve the intent of the Statute,
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`requires that summary judgment be granted in favor of the Plaintiffs.
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`In Larocque, the plaintiff held insurance on a property he owned that was issued
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`by the defendant insurer. kl at 529. Pursuant to the terms of the policy, an inspection
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`of the property was required . kl at 530. An inspection was arranged, but never
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`occurred because the plaintiff overslept and failed to meet the inspector. kl The
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`inspector claimed he left messages, but the plaintiff denied receiving them. kl The
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`defendant insurance company mailed a letter to the plaintiff notifying him that
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`cancellation of the policy would occur if the inspection did not take place. kl The
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`plaintiff never responded to the letter and no inspection took place. kl Thereafter, the
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`defendant insurer sent, by certified mail, a notice of cancellation to the plaintiff. kl The
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`plaintiff's wife, knowing nothing about the contents of the letter, refused to sign for it
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`and, as a result, it was sent back to the defendant insurer unsigned. kl Shortly
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`thereafter, fire destroyed the plaintiff's building and the defendant insurer took the
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`position that it had properly cancelled the policy. kl
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`Rhode Island's insurance cancellation Statute required that the insurer "give
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`thirty days notice prior to cancellation or nonrenewal of risk eligible under the plan." kl
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`In Larocque, the Rhode Island Supreme Court considered, for the first time, what the
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`term "giving notice" meant. kl In doing so, the Court reviewed case law from other
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`jurisdictions. kl The Court noted that the defendant's argument that that placing the
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`notice in the mail was sufficient to constitute giving notice would be equivalent to a form
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`16
`THE REARDON LAW FIRM, P.C.
`Attorneys at Law
`160 Hempstead Street • P.O. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. 102515
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`of "implied actual notice." kl The Court held that "public policy dictates that the insured
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`receive actual notice of cancellation" so that the insured could seek out and obtain
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`coverage elsewhere. kl at 531. Reviewing the law from other jurisdictions, the Court
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`explained that most states require that the insured receive actual notice of the
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`cancellation. kl The Court also noted that, by sending the notice via certified mail
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`instead of regular postage, the defendant insurer "increased the risk of nondelivery." 19.:.
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`at 532. Furthermore, once the defendant insurer was aware that the notice had not
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`been received by the plaintiff, because it was returned unclaimed, the defendant had an
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`additional burden to follow through in order to notify the plaintiff. kl Like in this case,
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`"upon receiving the certified letter returned unsigned for, the defendant was clearly
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`aware of the possibility that the plaintiff had no knowledge of the notice of cancellation ."
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`!.g_,_ Thus, the Court held that actual notice by the insured was required.
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`Similarly here, public policy considerations dictate that the insured receive the
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`notice of non-renewal so that he has time to either correct the problem identified or find
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`alternative insurance coverage so that his property is not uninsured.
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`D. The Defendant Trahan owed the Plaintiffs a duty to act with reasonable
`skill, care, and diligence including a duty to notify the Deers of National
`General's decision to non-renew their homeowner's insurance policy
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`"It is well established that an insurance broker owes a duty to his principal to
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`exercise reasonable skill, care and diligence in effecting the insurance, and any
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`negligence or other breach of duty on his part which defeats the insurance which the
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`broker undertakes to secure will render the broker liable to his principal for the resulting
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`17
`THE REARDON L A W FIRM , P . C.
`Attorneys at Law
`160 Hempstead Street • P .0. Drawer 1430 • New London, CT 06320 • Tel. (860) 442-0444 • Juris No. 102515
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`loss." Precision Mechanical SeNices, Inc v. T J Pfund Associates, Inc. 109 Conn. App.
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`560, 565 (2008).
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`In a tort action, the nature of the duty, and specific persons to whom
`it is owed are determined by the circumstances of the conduct surrounding
`the individual. Although it has been said that no universal test for duty has
`been formulated ... our threshold inquiry has always been whether the
`specific harm alleged by the plaintiff was foreseeable to the defendant.
`Furthermore a duty to use care may arise from a contract, from a statute or
`from circumstances under which a reasonable person, knowing what he
`knew or should have known, would anticipate hat harm of the general nature
`of that suffered was likely to res