2009 Ct. Sup. 16763, 48 CLR 514
No. AAN-CV08-50085155SConnecticut Superior Court Judicial District of Ansonia-Milford at Derby
September 15, 2009
MEMORANDUM OF DECISION
RADCLIFFE, J.
FACTS
The Plaintiffs, Diane Bailey and Mark Luth, bring this action to recover for injuries and damages sustained as a result of a March 3, 2007 automobile accident which occurred in Tampa, Florida. At the time of the accident, Mark Luth was operating a 2007 Pontiac, which his passenger, Diane Bailey, had rented.
The person responsible for the accident, one Raymond Castillo, carried liability insurance with policy limits of $10,000, per person, and $20,000 per accident. The limits of the Castillo policy have been exhausted, and this claim is instituted against the Peerless Insurance Company to recover underinsured motorist benefits.
At the time of the incident, Diane Bailey was employed by OEM Controls, a corporation headquartered in Shelton. She was in Florida on a business trip, and was accompanied by Mark Luth.
Although he was not an OEM Controls’ employee, Luth was familiar with OEM products, and was capable of providing technical assistance during demonstrations.
Diane Bailey rented the vehicle in which she was riding, using an OEM Controls credit card. Because she was acting in the course of her employment, OEM paid workers’ compensation benefits, and has filed an intervening complaint in this action.
Both of the Plaintiffs were seriously injured in the collision. Diane Bailey suffered a fracture of her neck, requiring surgery, while Mark Luth sustained a broken leg.
The insurance policy issued by the defendant, Peerless Insurance Company (Policy #BA 941228) was issued to OEM Controls, and was in effect CT Page 16764 on the date of the accident. The policy provides for liability and uninsured motorist limits of one million dollars ($1,000,000).
The parties agree that Diane Bailey was employed by OEM Controls at the time of the accident, and that she rented the vehicle with the consent and authorization of her employer.
The liability portion of Policy #BA 941228, issued to OEM Controls, defines an insured” (Section II) as:
a. You for any covered auto.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow . . .
For purposes of liability coverage, the policy defines as a “covered auto,” “Any Auto.” Therefore, both the operator of the rental vehicle, Mark Luth, and the passenger, Diane Bailey, would qualify as insureds under the liability portion of the policy, in that the rental vehicle was a “covered auto” and they were utilizing the vehicle with the permission of OEM Controls.
Peerless argues, however, that the policy does not cover either Diane Bailey or Mark Luth for purposes of underinsured motorist benefits.
The Defendant claims that the policy’s applicable symbol, Symbol 7, restricts uninsured motorist coverage to “only those” autos described in Item Three of the declarations for which a premium charge is shown . . .”
Nine automobiles are listed in the policy: 1) a 1995 Ford Aerostar Van, 2) a 1996 Ford Winstar Van, 3) a 2002 Jeep Liberty, 4) a 2003 Jeep Laredo, 5) a 2004 BMW 645 UL, 6) a 2005 Honda Odyssey, 7) a 2005 BMW 5301, 8) a 2005 Porsche Boxster, and 9) a 2006 Volvo VC 70.
The Plaintiffs maintain that the Peerless policy provision, which does not extend uninsured motorist coverage to the rental vehicle, limits coverage in a manner which is not permitted by § 38a-336(a)(1) of the General Statutes, or any regulation adopted pursuant to the statute. Section 38a-336(a)(1) reads:
Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those CT Page 16765 specified in subsection (a) of section 14-112, for the protection of persons specified thereunder, who are entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles . . . (Emphasis added.)
The Plaintiffs have moved for partial summary judgment, claiming that no genuine issue of material fact exists, concerning their eligibility for underinsured motorist benefits under the insurance policy issued by Peerless to OEM Controls.
Peerless has countered with its own motion for summary judgment, as to the issue of underinsured motorist coverage. It claims that the terms and conditions of its policy, as a matter of law, do not provide underinsured motorist coverage to either plaintiff.
STANDARD OF REVIEW — SUMMARY JUDGMENT
A trial court may appropriately render summary judgment when documentary evidence, including operative pleadings, affidavits and depositions demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to a judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11
(1983); Hammer v. Lumberman’s Mutual, 214 Conn. 573, 578 (1990). A material fact has been defined as one which would make a difference in the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
Connecticut Practice Bock § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof show that there is no genuine issue of material fact . . .” The burden is on the moving party to show quite clearly what the law is, and that it excludes any doubt as to the existence of any genuine issue of material fact. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984).
Because, as it concerns the issue of underinsured motorist coverage, all parties agree as to the material facts which may be considered, but differ only as to the legal conclusions to be drawn from those facts, these partial motions for summary judgment are somewhat akin to a common law motion for judgment on the pleadings. Miller’s Pond, LLC v. City of New London, 273 Conn. 786, 790 (2005). While the purpose of a motion for summary judgment is to test for the presence of disputed or contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate where, as here, it is claimed that the complaint fails to set forth a viable cause of action, CT Page 16766 and the defect cannot be cured by repleading. Larobina v. McDonald, 274 Conn. 392, 401 (2005).
BOTH PLAINTIFFS ARE ELIGIBLE FOR UNDERINSURED MOTORIST BENEFITS UNDER THE POLICY ISSUED BY PEERLESS (#BA 941228) TO OEM CONTROLS
While acknowledging that Diane Bailey and Mark Luth, at the time of the March 3, 2007 accident were insured for purposes of liability coverage under its policy, Peerless nevertheless maintains that it may deny them underinsured motorist coverage, based on the language of the policy.
This claim is not persuasive.
Section 38a-336(a)(1) of the General Statutes, formerly § 38-175c, provides “for the protection of persons . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles . . .” The coverage attaches to the injured person, not to the injured vehicle. Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248 (1982).
An insurer may reduce its liability for uninsured or underinsured motorist coverage, based on a regulation issued pursuant to § 38a-336 Lowrey v. Valley Forge Insurance Co., 224 Conn. 152, 156 (1992); Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 486 (1986); or by a limitation based on the provisions of the statute itself. In order for a policy exclusion to be expressly authorized by the statute, there must be substantial congruence between the statutory provision, and the policy provision Chmielewski v. Aetna Casualty Surety Co., 218 Conn. 646, 647 (1991). Any limitation of liability must be construed most strongly against the insurer. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191
(1987).
The Defendant does not point to any regulation permitting it to restrict underinsured motorist coverage to particular vehicles listed in its policy, in the absence of a similar restriction applicable to liability coverage. Therefore, any authority for limiting the underinsured motorist coverage must be found in the statute itself.
The Connecticut Supreme Court has determined that the language in §38a-336, C.G.S., which requires uninsured motorist coverage “for the protection of persons insured hereunder,” is intended to provide every “insured” within the definition of the term in the liability section of a policy, with underinsured motorist benefits. This is to permit the CT Page 16767 recovery of damages by the insured, in a situation where the responsible tortfeasor has not maintained a policy of insurance Middlesex Ins. Co. v. Quinn, 225 Conn. 257, 268 (1993); Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 377 (1991).
In Quinn, the issue concerned a son, who was a member of his father’s household, and was operating a motor vehicle which he (the son) owned at the time of the accident. The son claimed that he was an “insured” under his father’s policy, for purposes of underinsured motorist coverage.
The son’s vehicle was covered by a policy with $20,000 in uninsured motorist coverage at the time of the accident.
The Court held that it was proper to deny underinsured motorist coverage to the son, where he was not an “insured” under the liability portion of his father’s insurance policy. Middlesex Ins. Co. v. Quinn supra, 267. The refusal of the court to find a violation of public policy in Quinn was based on the language of § 38a-336, which reads:
No insurer shall be required to provide uninsured and underinsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or motorcycle that is owned by the named insured, or (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
The Court reiterated the linkage between uninsured motorist coverage and liability coverage. Once an automobile liability policy extends coverage to a certain class of insureds, uninsured motorist coverage must be offered to the same class of insureds. Public policy requires an insurer to provide uninsured motorist coverage to any insured under the automobile liability policy (emphasis added). Middlesex Ins. Co. v. Quinn, supra, 267-68.
That public policy was emphatically reaffirmed in Gormbard v. Zurich Ins. Co., 279 Conn. 808 (2006). The Court, in Gormbard, stated that the language “persons insured” in § 38a-336(a)(1), C.G.S., refers to persons specified as insureds in the liability portion of the policy, adding “we can think of no better example of an attempt to limit otherwise mandated uninsured motorist coverage than a definition of an insurance policy that purports to limit uninsured motorist coverage to injuries arising out of the insured’s use of a specified vehicle. Gormbard v. Zurich Ins. Co. supra, 823. CT Page 16768
The language of the Peerless policy in question seeks to limit uninsured and underinsured motorist coverage to the nine vehicles listed in the policy. This type of limitation is not authorized by any statute or applicable regulation, and is the type of artifice which the Court explicitly rejected in Gormbard.
Both of the Plaintiffs, Mark Luth and Diane Bailey, were insureds under the Peerless policy issued to OEM Controls for purposes of liability, while operating and riding in the rental vehicles on March 3, 2007.
Therefore, their right to pursue underinsured motorist benefits cannot be restricted to the use of particular vehicles. To allow the distinction contained within the Peerless policy (BA #941228) would be to ratify a disparity between coverage for liability purposes, and coverage for purposes of underinsured motorist benefits. The Supreme Court, in Quinn
and Gormbard has specifically rejected any such distinction, as a violation of public policy.
CONCLUSION
The motion for partial summary judgment, filed by the Plaintiffs Diane Bailey and Mark Luth, is GRANTED, in that both are entitled to underinsured motorist coverage under the policy issued by the Defendant Peerless Insurance Co. to OEM Controls.
The motion for summary judgment of the Defendant, Peerless Insurance Co., is DENIED.
CT Page 16771