The district court set aside the jury's verdict in favor of Essex on the ground that there was insufficient evidence to support the jury's finding that a continuing course of conduct had tolled Essex's otherwise untimely filed action.

The U.S. Court of Appeals for the Second Circuit concluded that Connecticut law regarding the contours of the continuing course of conduct tolling doctrine was unclear and certified the following question to the Connecticut Supreme Court:

Is the trial evidence legally sufficient to support the jury's finding that the statute of limitations was tolled at least [three years before the action was commenced,] rendering [Essex's] claim timely?

The Connecticut Supreme Court's Decision

The Supreme Court of Connecticut agreed with the district court that the evidence was not legally sufficient.

In its decision, the court explained that the “continuing course of conduct doctrine” could apply under both a theory of a special relationship and a theory of later wrongful conduct, and it analyzed both.

First, the court noted that the jury was instructed that, as an adjuster hired by Essex, Kramer was Essex's agent and, therefore, Kramer had a special relationship of trust with Essex. It then found that this “special relationship” ended after Essex issued the final claim check and Kramer closed its file, “signifying that it had completed its performance of the adjustment services for which it had been hired.”

The court also ruled that “[n]one” of Kramer's actions after that point “reasonably could be considered further performance of any of the full adjustment services [it] previously [provided] and, thus, a further continuation of that fiduciary relationship.” Moreover, the court observed, Kramer “made no commitment to perform additional adjustment services” after Essex issued the final claim check.

The court conceded that even after that point, Kramer billed some of its general executive adjuster's time to Essex and used Essex's attorney, reflecting “some sort of business relationship between the parties.” The court reasoned, however, that, these facts were “plainly insufficient to establish that any fiduciary relationship created by the agreement to perform full adjustment services continued after [Essex] issued the final check and [Kramer] closed its file.”

Finally, the court ruled that Kramer had not engaged in any wrongful conduct – including acts of omission – after that date to permit application of the continuing course of conduct tolling doctrine.

Accordingly, the court answered the certified question “no.”

The case is Essex Ins. Co. v. William Kramer & Associates, LLC, No. SC 20130 (Conn. April 23, 2019). Attorneys involved include: Mary Massaron, pro hac vice, with whom was Christopher L. Jefford, for the appellant (plaintiff). Richard A. Simpson, pro hac vice, with whom, was Christopher P. Kriesen, for the appellee (defendant).