Opinion
No. FST CV 07-5004607 S
February 8, 2008
MEMORANDUM OF DECISION
Background
The plaintiffs, Lillie Campbell, Erika Campbell and Saada McDonald, ppa Erika Campbell, filed a three-count complaint against four defendants: 1) American Independent Insurance Company, 2) AIG Casualty Company, d/b/a New Hampshire Insurance Company, 3) Zachary Paua, and 4) Judi Paua. The plaintiffs seek compensation for injuries, damages and other losses against each defendant. Plaintiff, Lillie Campbell, was operating a motor vehicle owned by Sarah Walker. Plaintiffs Erika Campbell and Saada McDonald were passengers in said vehicle. Plaintiffs claim that on July 4, 2005 a vehicle operated by "John Doe" suddenly and without warning moved from the left lane into their lane of travel, striking their vehicle, causing plaintiffs' vehicle to go out of control and subsequently be struck by defendant Zachary Paua.
Plaintiffs seek uninsured motorist benefits against defendant AIG in the second count of the complaint. AIG was the liability insurance carrier for the vehicle operated by plaintiff, Lillie Campbell, and owned by Sarah Walker. AIG's policy was issued to Sarah Walker, who was a Florida resident, and was in full force and effect on July 4, 2005. A certified copy of said policy was attached as Exhibit A to the August 28, 2007, motion for summary judgment of the defendant. The plaintiffs objected to the motion for summary judgment, November 21, 2007 (#124). The defendant submitted a reply to the plaintiff's objection. It was dated November 28, 2007. (#127.)
The parties argued their respective positions at the short calendar on January 28, 2008.
Law
"Summary judgment is a method of resolving litigation when the pleadings, affidavit, and 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." (Internal quotation marks omitted.) Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984); Practice Book § 17-49.
The test is whether a party would be entitled to a directed verdict on the same facts. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969); Batick v. Seymour, 186 Conn. 632, 443 A.2d 471 (1982). Once the moving party has presented evidence in support of their motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. See Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983); Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980). It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. "Mere assertions of acts . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45]." Bartha v. Waterbury House Wrecking Co., supra, 190 Conn. 12. To oppose a motion for summary judgment successfully, the nonmoving party must recite specific facts in accordance with Practice Book §§ 17-45 and 17-46, which contradicts those stated in the movant's affidavit and documents. State v. Groggin, 208 Conn. 606, 616, 546 A.2d 250 (1980).
General Statutes § 38a-336 mandates that an insurance policy provide uninsured motorist protection if a claimant is entitled to recover damages from the owner or operator of an "uninsured" motor vehicle or an insured motor vehicle whose insurance carrier denied coverage for lack of cooperation which is material, or due to permissive use. See Arton v. Liberty Ins. Co., 163 Conn. 127, 302 A.2d 284 (1972); Regs., Conn. State Agencies § 38a-334-5(d).
In Reichold Chemicals, Inc. v. Hartford Accident Indemnity Co., 243 Conn. 401, 408, 703 A.2d 1132 (1997), rev'd on other grounds, 277 Conn. 774, 750 A.2d 1051 (2000), the court held that the laws governing insurance contracts "begin with the law of the place where the contract was made." For motor vehicle policies, the state where the insured vehicle is principally garaged is the location of the insured risks, and therefore, controls the interpretation of the policy. See American States Ins. Co. v. Allstate Ins. Co., 94 Conn.App. 79, 87-88, 891 A.2d 75, cert. granted on other grounds, 278 Conn. 904, 896, A.2d 107 (2006).
In Infinity Ins. Co. v. Merrian, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0261511 (March 9, 1999, Beach, J.) (24 Conn. L. Rptr. 173), the court refused to impose a liability obligation upon the Florida insurer for a Connecticut accident. It determined that Florida, not Connecticut law controlled and that Connecticut had no compelling public policy reason to apply its own law. The court further noted that Connecticut appellate decisions have consistently refused to extend the protections and obligations imposed by statute to insurance policies principally operative in other states.
The AIG Casualty Company policy states that:
OUT OF STATE COVERAGE
If an auto accident to which this policy applies occurs in any state or province other than the one in which "your covered auto" is principally garaged, we will interpret your policy for that accident as follows:
A. If the state or province has:
2. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage. (Emphasis added).
Discussion
The policy is a Florida automobile policy that was issued to Ms. Walker, who was a resident of Florida. The only contact with Connecticut is the fact that the accident occurred here. When applying the analysis required by the Reichold case, the court concludes that Florida law applies to interpret the contract of insurance. Florida uninsured motorist law would control.
According to the declarations page, the Florida policy carries liability coverage of $10,000 per person, $20,000 per accident. It is noted that there is a provision within the policy with regard to out of state coverage, which increases limits for liability for bodily injury or property damage in a state whose limits are higher. However, this provision is clearly written under the Part A "Liability Coverage" portion of the policy. See Exhibit A of defendant's motion for summary judgment. The subject lawsuit is not about liability coverage but rather about uninsured/underinsured motorist coverage. The uninsured/underinsured motorist coverage portion of the policy is under Part C of the policy. Part C contains no out of state coverage provision.
The Connecticut Supreme Court has held that liability insurance and uninsured motorist insurance are distinct from one another. "[U]ninsured motorist coverage operates upon a different set of principles from those upon which automobile liability and property insurance are premised, and uninsured motorist insurance protects the named insured against risks that are fundamentally different from liability and property insurance." Sandor v. New Hampshire Ins. Co., 241 Conn. 792, 799, 699 A.2d 96 (1997). One cannot presume that because there is an out of state provision for liability coverage, that the same out of state provision is applicable for uninsured/underinsured coverage.
Connecticut has no law requiring out of state motor vehicles to carry uninsured/underinsured motorist coverage and has no law requiring insurance companies of out of state insurance carriers to afford uninsured/underinsured motorist coverage. General Statutes § 38a-336 requires automobile insurance carriers to provide uninsured and underinsured motorist coverage for Connecticut motor vehicles.
Conclusion
The evidence provided by defendant demonstrates that a policy was issued to Ms. Walker in Florida at her Florida address. The declarations page of the policy states that it provides bodily injury protection in the amount of $10,000 per person and $20,000 per accident. It does not provide coverage for uninsured or underinsured motorist coverage. As such, plaintiffs cannot make a claim for uninsured motorist coverage on a policy that does not carry uninsured motorist coverage.
For the above reasons, the motion for summary judgment is granted in favor of the defendant, AIG. The plaintiffs are not eligible for uninsured motorist coverage pursuant to any policy with AIG.
There is no genuine issue of material fact in dispute and the defendant, AIG is entitled to summary judgment as a matter of law.
So Ordered.