Coelho v. ITT Hartford

In Coelho v. ITT Hartford, 251 Conn. 106, 752 A.2d 1063 (1999), the Court discussed General Statutes 38a-336 (b) while determining when the limitations period begins to run under 52-576. The Coelho court stated that 38a-336 (b) "requires that the insured first liquidate a claim against a tortfeasor before recovering underinsured motorist compensation" and that "exhaustion of the liability limits of the tortfeasor's policy is a necessary precondition to the recovery of underinsured motorist benefits . . . ." Coelho v. ITT Hartford, supra, at 112. Coelho also stated that it is well settled law that "a claim for underinsured motorist benefits can be initiated in advance of exhaustion." Id. The court stated that "in both McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 139, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 149-50, 617 A.2d 451 (1992), it held that the parties were free to adopt an unambiguous contract provision governing the award of benefits and that the plaintiffs' failure to comply with the terms therein barred recovery. . . . In so holding, the court tacitly recognized that the concept of accrual under a particular statute differs from the right to initiate recovery proceedings under a particular policy provision. Although General Statutes 38-175c, the statutory precursor to 38a-336 (b), prevented the plaintiffs from recovering benefits prior to exhaustion, nothing prevented the plaintiffs from initiating recovery proceedings within the contractually prescribed period." Coelho v. ITT Hartford, supra, 251 Conn. at 113-14. In Coelho, the Court stated that 38a-336 (g) (1) "permits an insurance carrier, upon compliance with certain tolling provisions, to limit the period for filing a claim to less than three years from the date of accident . . . . Under that section, tolling is required whenever the claimant, prior to the expiration of the applicable time period, gives written notice to the insurer of a pending claim and commences suit within 180 days of exhaustion. . . . The tolling provisions of 38a-336 (g) expressly apply to those contracts that limit the time for commencing a recovery proceeding to a period of less than three years from the date of accident . . . . Subdivision (g) goes on to enumerate the circumstances under which the applicable limitations period will be tolled. The phrase any applicable limitation period, as used in subdivision (g) therefore, refers to those express contractual provisions that limit the commencement of recovery proceedings to a period of less than three years from the date of accident . . . . Section 38a-336 (g) does not contemplate tolling of any limitations period that might otherwise be applicable." 251 Conn. at 115-16.