This action to recover an unsatisfied finaljudgment was commenced under General Statutes38-1751 on March 26, 1976, against thedefendant insurer, Aetna Life and Casualty Company,hereinafter designated as Aetna, by the plaintiff, a
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judgment subrogee of Peter F. Temelini. In itsanswer, Aetna, in effect, denied its liability. Itsubsequently filed a disclosure of defenseclaiming that the insured, Temelini, had failed toperform all the conditions and obligations underthe terms of the policy involved. On September 16,1977, Aetna filed a motion for summary judgmentaccompanied by an affidavit and other documentaryevidence. At no time did the plaintiff file acounter-affidavit or other proof in opposition tothis motion, nor did he move for a continuance.A summary judgment was granted and the plaintiffhas appealed.
In his appeal the plaintiff attacks the findingsof the trial court as not supported by theevidence, as well as the court's conclusions drawnfrom said findings. It is well settled that the"validity of such a claim is tested by the evidenceprinted in the appendices to the briefs. PracticeBook 718; State v. Vars, 154 Conn. 255, 258,224 A.2d 744." Klein v. Chatfield, 166 Conn. 76, 7879,347 A.2d 58 (1974). On examination we findthat the evidence set forth in the defendant'sappendix, in its brief and in the record fullysupports the challenged findings.
When the plaintiff was injured at Temelini'srestaurant on July 31, 1969, Temelini was insured by
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the defendant. On September 26, 1969, theplaintiff's counsel sent a letter to Temeliniinforming him that the plaintiff intended toassert a claim for personal injuries incurred atthe restaurant. The letter stated that the suitwas being brought under General Statutes 30-102,the dram shop act. Temelini forwarded this letterto Aetna which advised him that it would notdefend the action because his insurance policy hadan exclusion for dram shop act actions.
On July 23, 1970, the plaintiff instituted anaction for personal injuries in two counts, one ofwhich was in common-law negligence. Aetna did notreceive notice of the pendency of that actionuntil October 20, 1972. Judgment was rendered inthat action on November 4, 1975, for $14,415.55.That judgment has not been paid.
The insurance policy under which Temelini wasinsured by the Aetna provided that "if claim ismade or suit is brought against the insured, theinsured shall immediately forward to the companyevery demand, notice, summons or other processreceived by him or his representative."
Aetna filed its motion for summary judgment onSeptember 16, 1977. It included an affidavit thatit had not received notice of the action ofKolibczynski v. Temelini, Superior Court, HartfordCounty, No. 166922, brought July 23' 1970, untilOctober 20, 1972. Attached to the motion was theinsurance policy which included the above quotedprovision.
"To oppose the motion for summary judgmentsuccessfully, the defendants had to recite factsin accordance with Practice Book 300 whichcontradicted those stated in the plaintiff's affidavit.Dougherty v. Graham, 161 Conn. 248, 250,
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287 A.2d 382; Dorazio v. M. B. Foster Electric Co.,157 Conn. 226, 229, 253 A.2d 22." Rusco Industries,Inc. v. Hartford Housing Authority, 168 Conn. 1,5, 357 A.2d 484 (1975). Aetna's affidavit showeda lapse of notice of over two years from the filingof the case. The policy required that the suit papersbe "immediately" forwarded to the defendant. Theinsured's duty to comply with the insurance policyin forwarding the complaint and all suit caperswas a condition precedent to the defendant's dutyto defend. Arton v. Liberty Mutual Ins. Co.,163 Conn. 127, 13, 1-32, 302 A.2d 284 (1972). Theplaintiff chose not to oppose the defendant'saffidavit by a counter-affidavit or otherdocumentary evidence as required by 299 of the1963 Practice Book.
Therefore, we find that the trial court wascorrect in ruling, based on the pleadings anddocuments before it, that there were no genuineissues as to any material fact, and in grantinga summary judgment for the defendant.
There is no error.
1. "[General Statutes] Sec. 38-175.LIABILITY OF INSURER UNDER LIABILITY POLICY. Eachinsurance company which issues a policy to anyperson, firm or corporation, insuring against lossor damage on account of the bodily injury or deathby accident of any person, or damage to the propertyof any person, for which loss or damage such person,firm or corporation is legally responsible, shall,whenever a loss occurs under such policy, becomeabsolutely liable, and the payment of such lossshall not depend upon the satisfaction by theassured of a final judgment against him for loss,damage or death occasioned by such casualty. Nosuch contract of insurance shall be canceled orannulled by any agreement between the insurancecompany and the assured after the assured hasbecome responsible for such loss or damage, andany such cancellation or annulment shall be void.Upon the recovery of a final judgment against anyperson, firm or corporation by any person, includingadministrators or executors, for loss or damage onaccount of bodily injury or death or damage toproperty, if the defendant in such action wasinsured against such loss or damage at the timewhen the right of action arose and if suchjudgment is not satisfied within thirty days afterthe date when it was rendered, such judgmentcreditor shall be subrogated to all the rights ofthe defendant and shall have a right of actionagainst the insurer to the same extent that thedefendant in such action could have enforced hisclaim against such insurer had such defendantpaid such judgment."