Opinion
CV166061977S
04-26-2018
Peter ARROYO et al. v. STATE FARM FIRE AND CASUALTY
UNPUBLISHED OPINION
OPINION
Markle, J.
On November 11, 2017 the defendant filed a Motion for Summary Judgment as to counts one through four of the plaintiffs’ complaint, through which the plaintiff’s uninsured motorist coverage for personal injuries arising out of a motor vehicle collision with an unidentified on the following grounds: (1) there are no genuine issues of material fact that the plaintiffs failed to give notice as required under the policy; (2) the plaintiffs have failed to carry their burden of proving lack of genuine issues of material fact that the defendant was not prejudiced; (3) there are no genuine issues of material fact that under the plain and unambiguous language of the policy the plaintiffs were required to recover under all available limits of all bodily injury liability bonds and policies acceptable at the time of the accident, yet, failed to pursue a claim against the tortfeasor and are, therefore, not entitled to uninsured motorist coverage; and (4) under the circumstances, the plaintiffs’ claim is contrary to public policy as well as the purpose of uninsured motorist coverage. Arguments were heard on December 18, 2017. For the following reasons, the defendant’s motion for summary judgment is DENIED.
FACTS
On May 2, 2016, the plaintiffs Isabel Vega, Peter Arroyo, Isael Oscar-Arroyo, and Carmello Davis filed a four-count complaint alleging the following facts against the defendant, State Farm Fire and Casualty Company. On June 28, 2014, Vega was driving her car on Ferry Street in New Haven when an uninsured motorist (tortfeasor) negligently crashed her car into Vega’s car, in which Arroyo, Oscar-Arroyo, and Carmello Davis were riding as passengers. The police were called and an officer responded to the scene and took information from the parties. After requesting the police report plaintiff’s counsel was informed that no such report existed. Vega’s car was covered under an automobile insurance policy issued by the defendant (policy). All premiums then due were paid and the policy was in full effect, and Vega complied with all conditions, prerequisites, and requirements to date under the policy. The policy provided uninsured motorist coverage benefits. Under the policy, the plaintiffs are entitled to recover uninsured motorist benefits from the defendant.
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
" The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
" Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). " [B]ecause any valid special defense raised by the defendant ultimately would prevent the court from rendering judgment for the plaintiff, a motion for summary judgment should be denied when any [special] defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Cadle Co. v. Ogalin, 175 Conn.App. 1, 10, 167 A.3d 402, cert. denied, 327 Conn. 930, 171 A.3d 454 (2017). " Only one of [a defendant’s] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant’s] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
TIMELY NOTICE & PREJUDICE
The defendant argues that the plaintiffs are not entitled to uninsured motorist coverage pursuant to the policy, because the plaintiffs failed to give the defendant timely notice of the accident as was required by the policy. In support of its argument, the defendant submitted an affidavit from Tesha Fisher, a claims handler for the defendant, by which Fisher swore that the first notice that the defendant received of the accident was on February 16, 2016, over one year and seven months after the accident occurred.
Moreover, the defendant argues the plaintiffs cannot meet their burden of demonstrating the defendant has not been prejudiced by the late notice and claims prejudice in that the defendant was deprived of the opportunity to conduct its own investigation regarding the extent and cause of damages and therefore is entitled to judgment as a matter of law.
The plaintiffs claim notice was provided to the defendant on July 2, 2014, only four days after it occurred. In support of their argument, the plaintiffs produced as an exhibit, (1) a letter and its memory transmission report faxed to the defendant by Attorney George Romania on July 2, 2014, to notify the defendant that his law office would represent the plaintiffs in connection with the accident; (2) a copy of the declarations page of the policy, which was faxed by the defendant and received by the law office on July 2, 2014; and (3) a letter from the law office to the defendant, dated and received by the defendant on February 5, 2016, informing the defendant that they represented the plaintiffs in connection with the accident, and notifying the defendant that the plaintiffs would be seeking underinsured motorist benefits under the policy. The plaintiffs argue that Fisher’s affidavit is directly contradicted by the evidence the plaintiffs submit, and that there are genuine issues of material fact as to when and whether timely notice was given.
" Connecticut requires two conditions to be satisfied before an insurer’s duties can be discharged pursuant to the ‘notice’ provision of a policy: (1) an unexcused, unreasonable delay in notification by the insured; and (2) resulting material prejudice to the insurer." (Internal quotation marks omitted.) Arrowood Indemnity Co. v. King, 304 Conn. 179, 198, 39 A.3d 712 (2012).
" Connecticut courts have recognized the need to shelter an insured from the harsh consequences of a rigid allegiance to the time provisions in a policy. Justice mandates that an insurer should not escape a liability it has expressly undertaken on overly technical grounds. To balance the competing interests of the insurer and the insured, Connecticut courts have fashioned a series of exemptions from the strict application of the ‘condition precedent’ principles of contract law in late notice situations. In addition to the doctrines of waiver and estoppel ..., terms such as ‘immediate notice’ are construed to mean and require that reasonable notice be given under the circumstances ... Moreover, immaterial or unsubstantial failures to comply with notice stipulations do not constitute a fatal breach." (Citations omitted.) Zieba v. Middlesex Mut. Assur. Co., 549 F.Supp. 1318, 1320 (D.Conn. 1982).
In the present case, the defendant submitted a portion of the policy entitled " Insured’s Duties," which provides in relevant part: " The insured must give us or one of our agents notice of the accident or loss as soon as reasonably possible. The notice must give us: a. your name; b. the names and addresses of all persons involved in the accident or loss; c. the hour, date, place, and facts of the accident or loss; and d. the names and addresses of witnesses to the accident or loss." The defendant relies on Fisher’s affidavit, in which Fisher swears that: " The first time [the defendant] was made [aware of] any potential accident on October 24, 2014, was when Attorney George H. Romania placed a phone call to [the defendant] on February 16, 2016 at 11:41 a.m. describing an alleged accident."
The court notes that the accident did not occur on October 24, 2015, but rather on June 28, 2014.
The court finds the plaintiffs have submitted evidence which creates genuine issues of material fact that notice was timely. Specifically, the plaintiffs submitted evidence which demonstrates that the defendant received notice that there had been an accident only four days after the accident occurred. In addition, the plaintiffs submitted evidence demonstrating that on July 2, 2014, the defendant complied with the plaintiffs’ July 2, 2014 request for a copy of the declarations page of the policy. The plaintiff’s evidence, taken together, directly contradict the statements sworn to in the Fisher affidavit. The affidavit is further contradicted by the faxed notification of February 5, 2016, received by the defendant that same date, which explicitly notified the defendant that the plaintiffs would be seeking uninsured motorist benefits. This faxed notification was received by the defendant nearly two weeks before February 16, the date which Fisher claims was the first time the defendant heard from the plaintiffs.
Additionally, the court notes, the defendant did not submit any evidence establishing that it was prejudiced by late notice. Indeed, the defendant incorrectly argues that the burden is the plaintiffs’ to establish lack of prejudice to the defendant. See Arrowood Indemnity Co. v. King, supra, 304 Conn. 201. At oral argument, the defendant argued that it was prejudiced because the July 2, 2014 letter that the plaintiffs submitted indicated that the accident occurred on June 28, 2013, instead of on June 28, 2014.
Based on the supporting exhibits the court concludes that there is sufficient evidence submitted by the plaintiff to prove timely notice.
UNDERINSURED MOTOR VEHICLE COVERAGE
The defendant further argues that judgment should enter in its favor based upon the plain and unambiguous language of the policy, specifically, that the plaintiff did not exhaust, or even pursue all applicable liability limits as required by the policy and therefore may not benefit from the policy because of their failure to pursue the tortfeasor.
The plaintiffs counter that there was no duty to pursue the tortfeasor for insurance information, contractually or otherwise. The plaintiffs assert that under the policy, the plaintiffs must first " use up" all " available" limits in order to recover uninsured motorist benefits. The plaintiffs argue that by definition, the insurance policy of a tortfeasor whose information was not recorded and produced by a responding police officer in an accident report that was never created is not " available" to the insured. And in this regard the plaintiffs argue that the defendant mischaracterizes the deposition testimony of Arroyo which purportedly establishes that the tortfeasor had available liability insurance.
The defendant also relies heavily on Sylvestre v. United Services Automobile Ass’n Casualty Ins. Co., 42 Conn.App. 219, 678 A.2d 1005 (1996), aff’d, 240 Conn. 544, 692 A.2d 1254 (1997), to support its proposition that the tortfeasor was identifiable and should have been pursued. The plaintiffs distinguish Sylvestre on the facts and the law. In Sylvestre, not only were the facts highly distinguishable from those alleged in the present case, but the court’s holding did not touch on whether there was a duty to pursue. As the plaintiffs have pointed out, the court stated: " We conclude that the determinative issue in this appeal, as framed by the pleadings is not whether the plaintiff had a duty to ascertain the identity and insurance status of the operator of the automobile that struck him, but rather whether the plaintiff was struck by a hit and run vehicle as set forth in the policy." (Emphasis in original.) Id., 223.
" Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction ... If the terms of an insurance policy are plain and unambiguous, courts cannot indulge in a forced construction that distorts the meaning of a term so as to accord a meaning other than that evidently intended by the parties ... Policy language must be interpreted reasonably; words are to be given their ordinary meaning in order to deduce the intent of the parties." (Citations omitted; internal quotation marks omitted.) Sylvestre v. United Services Automobile Ass’n Casualty Ins. Co., supra, 42 Conn.App. 223-24.
In the present case, after reviewing the portion of the policy the defendant submitted with its motion for summary judgment; see Def.’s Ex. B; the court cannot interpret the provisions of the policy as imposing a duty on the insured to pursue the tortfeasor beyond calling the police in order to obtain their tortfeasor’s insurance information. The policy provides as follows: " We will pay only if the full amount of all available limits of all bodily injury liability bonds, insurance policies, and self insurance plans that apply to the insured’s bodily injury have been used up by payment of judgments or settlements, or have been offered to the insured in writing." In the case at hand there is no reference to any language requiring a duty to pursue the tortfeasor independently after the police are called to the scene. Whether the plaintiffs had a duty to pursue the tortfeasor beyond calling the police is a matter of law. " In Volume 9 of Couch on Insurance, 3d. at § 123:47, pages 123-42 to 123-44 it states: ‘The claimant has the burden of establishing that the offending owner or operator was uninsured. The insured may collect [uninsured motorist] benefits by providing sufficient evidence that the tortfeasor was uninsured or by showing that all reasonable efforts to obtain evidence of tortfeasor’s insurance status have been utilized and were unsuccessful.’ "
" In the case of a suit by an insured against his or her insurer under a [uninsured motorist] clause the court in Jones v. Massachusetts Bay Ins. Co., 87 Conn.App. 416, 426 (2005), quoted from other cases and said our uninsured motorist statute stands for the proposition that ‘the legislative intent underlying uninsured and underinsured motorist statutes is to provide protection to the broadest number of accident victims.’ In a case involving an underinsured motorist the Appellate Court described the statute as ‘remedial in nature’ and quoted from a Supreme Court opinion to the effect that ‘remedial statutes should be construed liberally in favor of those whom the law intended to protect,’ Gohel v. Allstate Ins. Co., 67 Conn.App. 806, 815 (2001), also see Willoughby v. New Haven, 254 Conn. 404, 440 (2000) ...
" [T]he claimant must prove (1) the tortfeasor was uninsured or (2) the claimant made reasonable efforts to try to establish the tortfeasor’s insurance status, also see Dixie Insurance Company v. Mello, 877 P.2d 740, 744 (Wash.App., 1994), Appleman, Insurance Law and Practice, Vol. 8C pp 321-23 [sic] and discussion of Judge Handy in Sylvestre v. United Services Auto Ass’n, 14 Conn.L.Rptr. 283 (1995)." Lewis v. Blatche, Superior Court, judicial district of New Haven, Docket No. CV-13-6037128-S (July 2, 2015, Corradino, J.) (court found reasonable efforts were made to establish that tortfeasor was uninsured after she failed to respond to subpoenas and direct inquiries).
No doubt the plaintiffs had a duty to make reasonable efforts to try to establish the tortfeasor’s insurance status. Assuming that the defendant has met its burden in establishing that there are no genuine issues of material fact that the plaintiffs failed to pursue the tortfeasor after the police were called, the plaintiffs have produced sufficient evidence to create genuine issues of material fact as to whether the plaintiffs made reasonable efforts to attempt to establish the tortfeasor’s insurance status. The evidence shows that the plaintiffs called the police. See Vega Dep., 54-55. The evidence also shows that the plaintiffs attempted to retrieve the incident report from the police. See Pls.’ Ex. C. In fact, the defendant itself attempted to get a copy of the incident report, but could not. See Ex. F.
The plaintiffs sent a letter to the records division of the police department which provided: " I understand that the responding officer to this accident was an Officer Pepe. It is also my understanding that, after the accident, but before drafting the accident report, Officer Pepe stopped working with the New Haven Police Department. To date, the report has not been drafted. I am under no impression that the report will get drafted at this point. The problem from my standpoint is that I do not have any information on the driver of the other automobile. At this point, I would ask that if there is any way for me or you to access any notes available for the sole purpose of obtaining a name, address and some insurance information of the other party. Even if you write it on this paper and send it back in the enclosed envelope, I would be very appreciative[.]" The plaintiffs sent a second letter to Lieutenant Helegart of the police department, which provided: " After multiple attempts to get the above mentioned police report, I have come to the understanding that the responding [officer], M. Pepe, does not work for the Department any longer and that the police report was never drafted. Can you please verify, in writing, that there is no formal report matching the aforementioned report number and/or matching the description of events that I have described above. I am requesting, on behalf of my clients, any and all writings, recordings, notes, and anything else that was produced regarding this accident and the subsequent investigation."
The plaintiffs submitted a copy of the defendant’s responses to the plaintiffs’ second set of interrogatories as Exhibit F. The plaintiffs asked the following: " Did you ever attempt to obtain the police report for the motor vehicle accident giving rise to the subject lawsuit?" The defendant responded: " Multiple
Turning to whether the tortfeasor was insured, the court concludes that there are material issues of fact as to whether the tortfeasor was insured or underinsured. The defendants rely on the deposition testimony of Arroyo who claims that the tortfeasor’s husband said he had full coverage. Arroyo Dep., 43. The statements in Vega or Arroyo’s deposition testimony are not conclusive as to whether the tortfeasor had insurance. " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The following exchange occurred during the deposition of Vega:
Q Did you look to see if she had any insurance? ...
When viewed in the light most favorable to the plaintiffs, a trier of fact could reasonably conclude that the plaintiff had made reasonable efforts, by relying on the police, to determine whether the tortfeasor was uninsured or underinsured.
PUBLIC POLICY
The defendant next argues that permitting the plaintiff to recover would frustrate the purpose of the uninsured motorist statute. The defendants cite to Florestal v. Government Employees Ins. Co., 236 Conn. 299, 306, 673 A.2d 474 (1996), which emphasized that " the legislative objective was simply to give an insured who is injured in an accident the same resource he would have had if the tortfeasor had carried liability insurance equal to the amount of the insured’s uninsured motorist coverage." (Emphasis removed; internal quotation marks omitted.)
The plaintiffs counter that, " [o]nce the [plaintiffs] called the [police department] and asked for them to respond to the scene of the accident, it was the responsibility of the [police department] to gather and record that insurance information, not the [plaintiffs’]. The [police department] failed in that responsibility, and it would be contrary to public policy to then punish the [plaintiffs] in this matter for that failure and grant the [defendant’s motion for summary judgment]." Pls.’ Mem, 12.
As far as public policy is concerned, this court does not find it reasonable that after the police are called to investigate, and are obligated to submit a report but fail to do so, that a plaintiff should be required to act as a private investigator in order to pursue a claim for this could lead to possible confrontations between the parties that should not be encouraged. Accordingly, this court is not persuaded by the defendants’ policy argument.
CONCLUSION
For the foregoing reasons, the court concludes that there are genuine issues of material fact as to 1) whether the plaintiffs provided timely notice to the defendant; 2) as to whether the plaintiffs acted reasonably to obtain the tortfeasor’s insurance information; and as to 3) whether the tortfeasor was insured.
attempts to obtain a police report were performed by [defendant’s counsel]." (Emphasis added.) Ex. F.
A. No, but I’m sure she did. Like, she- like, the car’s nice, so she looked professional, like, she had a job and her man had a job ... Q. But at no point, did she ask to see your insurance or did you ask to see her insurance? A. No. Vega Dep., 54-55. The following exchange occurred during the deposition of Arroyo: Q. Did you ever ask her husband if he had insurance? A. He said he did, but he didn’t want to give nothing up. Q. Did he say what type of insurance he had? A. No, he did not. Q. Did you ask him if he had insurance? A. Yeah. Q. And you remember him saying " yes" ? A. Yeah, he- he- he say, he was " fully covered." He was nonchalant about everything. So ... Q. Did he say what he meant by " he was fully covered" ? Did he explain what that meant? A. He don’t care. Arroyo Dep., 42-43. When asked whether he ever asked the husband if he had insurance, he said that the husband indicated that he did. Page 42-43.