[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT (NO. 169) Defendant ("Hartford") moved for summary judgment on plaintiff's claim for damage to an automobile allegedly insured by defendant. Hartford claims that the policy was properly cancelled pursuant to statute before the loss.
In a memorandum of decision of even date herewith, the court denied plaintiff's motion for summary judgment in this case. The court rejected plaintiff's claim of collateral estoppel, finding that a different issue as to a material fact (notice of cancellation) was presented here. That issue was not litigated in the Hernandez case relied on by plaintiff.
Defendant's affiant does not claim that he mailed the notice, but rather that he believes it was mailed based on a review of the documents, including a certificate of mailing which he concludes contains a United States post office cancellation. The certificate of mailing is not signed by a postal employee. Even if defendant's contention, that no signing is required by the domestic mail manual, is accepted, whether the notice was indeed mailed would present a question of material fact for the trier. Plaintiff's affidavit that she did not receive the notice of cancellation also helps to create a genuine issue of material fact as to whether the notice was actually mailed.
Defendant's motion for summary judgment is denied.
E. EUGENE SPEAR, JUDGE.