Opinion
CV166009345S
12-13-2018
Jason DEGUMBIA v. GEICO GENERAL INSURANCE CO.
UNPUBLISHED OPINION
OPINION
Nada K. Sizemore, Judge
By Complaint dated June 16, 2016, the plaintiff, Jason Degumbia brings suit against defendant, Geico General Insurance Company (hereinafter referred to as "GEICO") as a result of a two car accident that occurred on January 28, 2015 in the City of Meriden. Plaintiff, Degumbia was a police officer for the City of Meriden at the time of the accident, and he was operating a police cruiser owned and insured through the City of Meriden Police Department.
While on duty, he claims that he was hit on I-691 when he was struck by a car operated by Fabiola Goin. He sustained injuries, losses and damages and brought a claim against Ms. Goin, as the tortfeasor in negligence. Her insurance carrier settled the case with the plaintiff for its policy limit of $20,000 before any lawsuits were brought.
Plaintiff also filed a claim for workers’ compensation benefits and received such benefits from his employer, the City of Meriden, as a result of this accident. As of November 2016, it is alleged by the City of Meriden that it paid out $93,295.66 in benefits to the plaintiff.
Plaintiff now brings suit seeking underinsured motorist benefits from his own automobile insurance carrier, GEICO, pursuant to C.G.S. § 38a-336. He claims his exhaustion of the tortfeasor auto liability policy now triggers this underinsured motorist claim. The defendant’s GEICO policy provides potential limits of $250,000 per person/$500,000 per accident of underinsured motorist coverage.
By Answer and Special Defense dated August 30, 2016, the defendant, GEICO generally admits that it has an insurance policy with the plaintiff, but it denies the claim for underinsured motorist benefits has been triggered yet. Defendant, GEICO has raised ten special defenses to this claim.
The special defenses relevant to this motion for summary judgment are the second and seventh special defenses.
The defendant, GEICO in the second special defense asserts a failure to exhaust defense in which it claims as follows:
Under the terms and conditions of the GEICO policy, the plaintiff has yet to exhaust the insurance policies applicable to all tortfeasors to the accident, and thus, the plaintiff has failed to comply with the condition precedent of making an underinsured motorist claim.
In the seventh special defense, the defendant asserts a priority defense claim in which it asserts:
Under the terms and conditions of the GEICO policy, when the plaintiff occupies an auto not described in the GEICO policy, the GEICO insurance is excess over any other similar insurance available to the plaintiff and the insurance which applies to the occupied auto is primary ...
These defenses are based on the auto insurance coverage provided to the City of Meriden through American Southern Home Insurance Company, a subsidiary of Great American Insurance Company. Defendant, GEICO claims that American Southern provided uninsured/underinsured motorist coverage to all City of Meriden vehicles in the amount of $40,000 per person/$40,000 per occurrence. See (Exhibit C) attached as supporting documentation to the motion for summary judgment.
The plaintiff filed a reply to all special defenses on or about September 6, 2016, so pleadings are now closed.
By Motion for Summary Judgment dated August 8, 2018, the defendant, GEICO now moves for summary judgment pursuant to Connecticut Practice Book Sections 17-44 et seq. It has filed a supporting Memorandum of Law dated August 8, 2018 along with supporting documentation including the GEICO Insurance policy and the American Southern Home Insurance Policy.
The defendant, GEICO argues that it is entitled to judgment as a matter of law on the grounds that the plaintiff failed to exhaust the City of Meriden’s UIM policy before attempting to access the defendant’s GEICO policy. Because plaintiff did not exhaust all available coverages attached to the host vehicle (the police cruiser), the defendant, GEICO argues that the GEICO insurance policy language would preclude the plaintiff from pursuing this underinsured motorist claim.
The plaintiff, by written Objection dated October 11, 2018, objects to the motion for summary judgment and has filed a memorandum of law in opposition to the summary judgment motion. He argues that (1) the defendant, GEICO has not met its burden to show any absence of genuine issue of material fact; and (2) that the plaintiff has met its burden for the filing of an underinsured motorist claim under C.G.S. § 38a-336 by exhausting the single tortfeasor’s liability policy. He also argues that the cases cited by the defendant, GEICO are all inapposite to the case at bar. The parties presented for oral argument to the court on December 7, 2018.
Legal Standard of Review
"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).
"[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).
"A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment ... The facts at issue [in the context of summary judgment] are those alleged in the pleadings ... The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise." (Emphasis in original; internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 728-29, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
"In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). "[I]ssue-finding, rather than issue-determination, is the key to the procedure." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 222, 131 A.3d 771 (2016).
In the case at bar, the court is persuaded by the arguments raised by the defendant, GEICO.
The court cannot find any genuine issue of material fact so as to render this motion for summary judgment inappropriate.
The court does find the exhaustion argument persuasive, based on the language of the relevant insurance policies contained in both GEICO and American Southern Home Insurance provisions, and based on the language and intention of the Connecticut General Statutes guiding underinsured motorist coverage claims. The court also finds this is a question of law that can be determined upon a motion for summary judgment. Berk & Jainchill, Connecticut Law of Uninsured/Underinsured Motorist Coverage, Section 7.9 at pp. 516 (2004).
The court notes that neither the plaintiff or defendant have cited any reported case precedent dealing with the circumstances at hand-where the underlying exhaustion issue involves both tortfeasor liability coverage and underlying underinsured motorist coverage. The reported cases on this topic have seemingly dealt with exhaustion of underlying tortfeasor liability policies only. See, Continental Insurance Company v. Cebe-Habersky, 214 Conn. 209 (1990); General Accident Insurance Company v. Wheeler, 221 Conn. 2016 (1992); Ciarella v. Commercial Union Insurance Company, 234 Conn. 807 (1995). And this court could not find any reported decisions squarely dealing with this set of specific insurance coverages arising from an auto accident where exhaustion was an issue.
Nonetheless, a reading of the Connecticut Underinsured motorist statutes and relevant insurance policy language supports the conclusion that the plaintiff needed to exhaust the underinsured motorist coverages provided by American Southern Home Insurance before proceeding with this underinsured motorist claim.
Plaintiff, Degumbia in his brief and at oral argument conceded that no such claim has been made against American Southern Home Insurance for those UIM benefits. So it is unclear if American Southern would or would not accept the UIM claim.
Connecticut General Statutes § 38a-336(e) defines an underinsured motor vehicle as a "motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section ... (Emphasis added.) See also, Berk & Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage, pp. 71 to 79 (2004).
The statutes further establish exhaustion in Section 38a-336(b) as a requirement to the trigger of underinsured motorist coverage. As Justice Borden described in Ciarella v. Commercial Union Insurance, 234 Conn. 807, 810-11 (1995) 663 A.2d 377.
This section provides that an insurance company is obligated to make payment to its insured "after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements ..." (Emphasis added.) The word "all" and the plural words "bonds" and "policies" found in Section 38a-336(b) would be rendered meaningless if not read to require exhaustion of all the policies applicable to the underinsured motorist vehicle at the time of the accident.
COURT ORDER
Since the plaintiff, Degumbia has not exhausted all possible insurance policies potentially available on the host vehicle-the police cruiser-involved in this accident, the court finds it is premature for this claim for underinsured motorist benefits against the defendant, GEICO.
The court therefore, GRANTS this Motion for Summary Judgment in favor of the defendant, GEICO; and OVERRULES the plaintiff’s Objection to the Motion.