Opinion
FBTCV176068795S
03-08-2019
Ruby ESTAVIEN v. PROGRESSIVE CASUALTY INSURANCE COMPANY et al.
UNPUBLISHED OPINION
OPINION
Elizabeth Stewart, J.
The defendant, Progressive Casualty Insurance Company, moves for summary judgment on count one of the Amended Complaint (No. 108.00) filed by the plaintiff, Ruby Estavien. The element of this breach of contract claim that is at issue in this summary judgment motion is the contract term for underinsured motorist (UIM) limits. The defendant argues that summary judgment should enter in its favor on the ground that the UIM limit was $50,000 because General Statutes § 38a-336(a)(2) does not apply to the commercial auto insurance policy it issued to the plaintiff’s grandfather, Paul Noel. Additionally, the defendant argues that even if that statute does apply, Noel signed an informed consent form for the lower limit of $50,000 and is bound by that. The plaintiff argues that summary judgment should be denied because there are disputed issues of material fact as to whether that limit should be $1.5 million. More specifically, the plaintiff argues that (1) by operation of statute, the UIM limits shall equal the $1.5 million liability limits because the policy at issue is not a commercial fleet policy, and (2) the informed consent form Noel signed is not binding on him and the plaintiff because he did not make a "conscious, knowing and voluntary" election of lower limits for UIM coverage. See Opposition Memorandum (No. 138.00). For the reasons that follow, the court denies the motion for summary judgment.
MATERIAL FACTS
This defendant issued a series of commercial automobile insurance policies for Noel. Plaintiff’s Exhibits (Pl. Exs.) A-L (no. 139.00). Noel is the named insured on these policies. Pl. Ex. M (no. 140.00). Each policy insured one vehicle, a 2007 Chevrolet Express G3500. See, e.g., Pl. Ex. L (no. 139.00). The policy’s UIM Coverage Endorsement defines "insured" as "you or a relative" "if the named insured shown on the Declarations Page is a natural person." Pl. Ex. M. The policy further defines "relative" as "any person living in the household in which the named insured resides who is related to the named insured by blood, marriage, or adoption, including a ward or foster child. This term only applies if the named insured is a natural person." Pl. Ex. M. The insuring agreement provides: "we will pay for damages, ..., which an insured is legally entitled to recover from an owner or operator of an uninsured auto because of bodily injury: 1. Sustained by any insured; 2. Caused by an accident; and 3. Arising out of the ownership, maintenance, or use of an uninsured auto." Pl. Ex. M. There is no dispute that the plaintiff is a natural person or a relative of Noel and is thus covered as an insured of the policy.
Prior to March 31, 2015, the Progressive policies consistently had limits of $20,000 each person/$40,000 each accident for both liability and UIM coverage. Pl. Exs. A-J (no. 139.00). On March 31, 2015, Noel told co-defendant Sacoto that he needed $1.5 million in liability coverage to meet Connecticut Department of Transportation requirements for his business. Pl. Ex. O (no. 141.00). In response to that request, Sacoto made two calls to Progressive; these conversations were both recorded. In the first recording, Sacoto asked a representative of the defendant for the addition of a form MC 1641B to the policy and was advised that the liability limits had to be increased to $300,000 combined single limits. Pl. Ex. P (no. 142.00). Progressive made changes to the policy that date to increase the liability limits to $300,000 and to change the UIM limits to $50,000 combined single limit. Pl. Ex. K (no. 139.00). There was no discussion of UIM coverage or the $50,000 limit in the first recording. Pl. Ex. P (no. 142.00).
Later that same date, Sacoto called Progressive again and requested an increase in liability coverage to $1.5 million. Pl. Ex. Q (no. 142.00). When the defendant’s representative inquired about UIM coverage limits, Sacoto stated that those would remain at the $50,000 combined single limit. Pl. Ex. Q.
Progressive issued new declaration pages reflecting first the $300,000 liability limit and the $50,000 underinsured motorist coverage limit, and then the $1.5 million liability limit and the $50,000 underinsured motorist coverage limit Pl. Exs. K and L (no. 139.00). In addition, Progressive sent at least one informed consent form required by § 38a-336(a)(2) to Noel. Pl. Ex. R (no. 142.00). That informed consent form, which was written in English, explained uninsured and underinsured motorist coverage and included the following warning in letters that were bold, all capitals and underscored:
WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PUCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OF ANOTHER QUALIFIED ADVISOR .Id. Directly below that warning was a signature line. Id. Noel signed and dated it April 8, 2015. Id. There is no evidence that Noel consulted with Progressive or Sacoto about this form. At his deposition, Noel testified that he did not know what UIM coverage is, that he was not comfortable speaking English, and that he had relied upon Sacoto for help with insurance documents in the past. Pl. Ex. O (no. 141.00).
The plaintiff was injured on March 30, 2016, after this change in the policy limits. Amended Complaint, ¶ 1. She recovered $120,000 under the policies issued to her driver and the tortfeasor. Id., ¶¶ 21, 22. The costs associated with her injuries exceed that amount. Id., ¶ 23.
LEGAL ANALYSIS
I. SUMMARY JUDGMENT STANDARD
"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 ... 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 ..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312, 77 A.3d 726 (2013). "[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 ..." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... 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] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
II. THE INFORMED CONSENT REQUIREMENT APPLIED TO NOEL
Although the plaintiff brings a breach of contract claim, the UIM coverage terms of that contract are determined by statute. See Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 191, 602 A.2d 1007 (1992) (insurance contracts must be read to include provisions law requires to be included and excludes provisions law prohibits); see also Pl. Ex. M at ¶ 17. Section 38a-336(a)(1)(A) requires automobile liability insurance policies to include UIM coverage:
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 specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages because of bodily injury, including death resulting therefrom, from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages.
Section 38a-336(a)(2) requires that the limits for that UIM coverage equal the limits for liability coverage unless the policyholder provides written informed consent, in the form prescribed by statute, to lower limits:
Notwithstanding any provision of this section, each automobile liability insurance policy issued or renewed on and after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements that extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form that shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner, (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state:
WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER.
The parties initially dispute whether the defendant had to fully comply with this statutory requirement of written informed consent for Noel’s commercial auto policy. The defendant argues that because Noel purchased a commercial auto policy, the statute’s requirements do not apply to him. The plaintiff responds that any loosening of the statutory requirements by the courts have been limited to commercial fleet policies, not all commercial auto policies. The court agrees with the plaintiff.
The statutory default that UIM limits should equal liability limits first appeared in No. 83-461 of the 1983 Public Acts, which amended General Statutes § 38-175c, the predecessor statute to § 38a-336. That public act required equivalent limits "unless the insured requests in writing a lesser amount" for UIM limits. The Supreme Court interpreted that version of the statute that was amended by Public Act 83-461 in Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 594 A.2d 468 (1991). There, the court held that the language "the insured" was ambiguous and concluded that the statute required the signature of all named insureds on a written request to reduce UIM coverage. Id., 769-71, 594 A.2d 468. In Pasion, the husband and wife were the named insureds of a jointly owned car; the court allowed a passenger riding in the car with the wife to recover UIM limits equal to the liability limits based on the statute rather than the reduced UIM limits on the face of the policy where the husband had executed a written request to reduce the limits, but his wife had not. Id., 768, 594 A.2d 468. The court relied heavily on the legislative history of Public Act 83-461 to find a legislative intent "to assure that consumers purchasing automobile liability insurance would be made aware of the low cost of equal amounts of uninsured coverage by requiring any reduction in that coverage to be in writing." Id., 770-71, 594 A.2d 468.
The Supreme Court revisited this issue under the same version of the statute in the context of a commercial fleet policy in Frantz v. United States Fleet Leasing, Inc., 245 Conn. 727, 728-29, 714 A.2d 1222 (1998). In that case, the court was confronted by a commercial fleet policy in which a representative of General Dynamics Corporation (but none of the other named insureds) had signed a written selection form, choosing the minimum amount of UIM coverage. Id., 731, 714 A.2d 1222. Although the trial court had granted summary judgment in favor of the plaintiff accident victims based on Pasion, the Supreme Court reversed. Id., 733-36, 714 A.2d 1222. The Supreme Court distinguished Pasion, holding that "the legislature did not intend to require the written consent of all named insureds on a commercial fleet policy as a necessary prerequisite to a reduction in coverage." Id., 738-39, 714 A.2d 1222. The court noted that the need to protect consumer named insureds from being bound by the unilateral decision of another named insured did not apply in the situation before it where the named insured in question, United States Fleet Leasing, Inc., had expressly contracted with General Dynamics to address all matters relating to UIM coverage. Id., 73-41, 714 A.2d 1222.
The legislature cleared up the ambiguity caused by the language "the insured" when it enacted No. 93-297 of the 1993 Public Acts, which changed the language to "any named insured." More significantly, that public act added to what was by then General Statutes § 38a-336(a)(2) the requirement that any named insured sign an informed consent form.
The appellate courts twice have considered whether commercial fleet policies had to comply with this version of the statute. In McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, 79 Conn.App. 800, 831 A.2d 310, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003), the Appellate Court held that the informed consent form signed by a representative of Cumberland Farms for its commercial fleet policy did not need to meet the statutory requirement of listing the premium cost options. In Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 891 A.2d 959 (2006), the Supreme Court held that the statutory requirement of twelve-point typeface did not apply to the commercial fleet policy held by a company with 2, 700 employees and over 1, 000 vehicles. In both those cases, the policyholder signed an informed consent form.
A commercial fleet policy has been defined by the Supreme Court as "any insurance policy designated as a "fleet" or "garage" policy, or any insurance policy covering a number of vehicles owned by a business, a governmental entity, or an institution." Cohn v. Aetna, 213 Conn. 525, 530, 569 A.2d 561 (1990). Noel did not have a commercial fleet policy. The undisputed facts show that the policy was titled "commercial auto policy"; that the named insured was Noel, a natural person; and that the policy covered one livery vehicle, a 2007 Chevrolet Express G3500. The defendant has not cited, nor has the court found, any authority for the proposition that a commercial auto policy, as opposed to a commercial fleet policy, should be exempt from the informed consent form requirements of § 38a-336(a)(2). Accordingly, the court holds that the requirements of that statute apply to the policies sold to Noel.
III. THERE ARE DISPUTED ISSUES OF MATERIAL FACT AS TO WHETHER THE PLAINTIFF’S GRANDFATHER GAVE INFORMED CONSENT TO LOWER UNDERINSURED MOTORIST COVERAGE LIMITS
In support of its motion for summary judgment, the defendant has produced only one signed informed consent form from the history of its policy relationship with Noel. That relationship began with a policy issued on November 16, 2010. That policy and several renewal policies had identical liability and UIM coverage limits, and therefore there was no need to procure an informed consent from Noel under General Statutes § 38a-336(a)(2). On March 31, 2015, Noel asked his broker, Sacoto, to increase his liability limits to $1.5 million. Pl. Ex. O (no. 141.00). After an initial conversation with Sacoto, this defendant changed the liability limit to $300,000 and the UIM limit to $50,000. Pl. Ex. P (no. 142.00) and Pl. Ex. K (no. 139.00). Later that same day, during a second conversation with Sacoto, this defendant increased the liability limits to $1.5 million. Pl. Ex. Q (no. 142.00). During this second call, Progressive’s representative said "we’re only going to do the liability, nothing else. Uninsured motorist would stay the same, right?" Pl. Ex. Q. Sacoto’s employee responded "yes." Pl. Ex. Q. Progressive went on to change the policy again to increase the liability limits to $1.5 million and to leave the UIM limits at $50,000. Pl. Ex. L (no. 139.00). Progressive issued two declarations pages that day, reflecting both sets of changes. Pl. Exs. K, L (nos. 139.00). The defendant also claims that on or about that date, it sent through its computer system informed consent forms to Noel. Affidavit of Julie Kenny (no. 128.00).
The one informed consent form signed by Noel is dated April 8, 2015. Pl. Ex. R (no. 142.00); Kenny Aff. Ex. O (no. 128.00). That form was associated with the change to $300,000 in liability coverage, not the later change to $1.5 million in liability coverage.
The plaintiff argues that this informed consent form does not bind her because (1) Noel has a limited command of the English language; (2) Noel relied on Sacoto to represent him and he did not ask Sacoto for lower UIM coverage; (3) the informed consent form he signed on April 8, 2015, was associated with the $300,000 policy and not the $1.5 million policy that already had taken effect by that date; (4) Noel has no understanding of what uninsured or underinsured motorist coverage is, and (5) the form he signed did not comply with Connecticut Insurance Department Property/Casualty Bulletin 65 ("PC-65"). Opposition Memorandum (No. 138.00). The court will address whether any of these arguments raise a genuine issue of material fact for trial.
A. THERE ARE NO DISPUTED ISSUES OF MATERIAL FACT AS TO THE INFORMED CONSENT FORM’S COMPLIANCE WITH STATUTES AND REGULATIONS
The court initially will address the third and fifth arguments as they concern whether the form Noel signed met the statutory and regulatory standards. If the informed consent form he signed did not meet those standards, statutory reformation could apply to make the UIM coverage limits equal to the $1.5 million liability limits. Harlach v. Metropolitan Property & Liability Co., supra, 221 Conn. 185, 191, 602 A.2d 1007 (1992); Banerjee v. Foster, Superior Court, judicial district of Fairfield, Docket No. CV-04-0410456-S (March 5, 2007, Arnold, J.) (43 Conn.L.Rptr. 42).
There is no genuine issue of material fact arising out of the fact that the informed consent form that Noel signed was associated with the first policy change made on March 31, 2015— the increase in liability limits to $300,000 and the change in UIM coverage limits to $50,000. The court holds that based on the language of the statute, the fact that Noel did not sign an informed consent form in connection with the increased liability limits of $1.5 million is not material. Section 38a-336(a)(1)(B) states in relevant part: "[t]he insured’s selection of uninsured and underinsured motorist coverage shall apply to all subsequent renewals of coverage and to all policies or endorsements that extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured." Furthermore, subsection (a)(2) provides: "[s]uch written request shall apply to all subsequent renewals of coverage and to all policies or endorsements that extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured." Thus, once Noel signed an informed consent form, even if it was not directly associated with the policy at issue here, that election for lower limits of UIM coverage continued to apply until he made a subsequent change in writing. See Cartier v. Shuff, Superior Court, judicial district of New Haven, Docket No. CV-15-6053465-S (December 29, 2016, Frechette, J.) (holding that informed consent form signed with earlier policy applied to later renewals).
As to the argument regarding the PC-65 Bulletin, the court will first consider the background for the bulletin’s promulgation. Public Act 93-297, discussed above, enacted a new statute, General Statutes § 38a-336a, entitled "Underinsured Motorist Conversion Coverage." Conversion coverage is not reduced by payments already made to the insured by a tortfeasor or other third party. General Statutes § 38a-336a(c). Section 38a-336a was amended by No. 09-72 of the 2009 Public Acts, which added the following language to subsection (a): "[f]or each new automobile insurance policy issued, the insurer shall disclose to an insured at the time of sale or issuance the availability of, the premium cost and a description of underinsured motorist conversion coverage. Such description of coverage shall be included in a conspicuous manner with the informed consent form specified in subdivision (2) of subsection (a) of section 38a-336." In response to this legislation, the Insurance Commissioner issued PC-65 on December 21, 2009. Pl. Ex. S (No. 142.00). He noted that "[t]his Bulletin is intended to provide updated guidance concerning the use and content of the ‘Informed Consent Form’ for uninsured/underinsured motorist coverage and underinsured motorist conversion coverage pursuant to Public Act 09-72." Id. PC-65 attached a model informed consent form that complied with the new law on conversion coverage, but it also stated that the formats provided with Bulletin PC-22 that contained the informed consent form and the election of UIM conversion coverage options and premiums would satisfy the new act.
The court has compared the form signed by Noel (Pl. Ex. R (no. 142.00)) with the model form created by the Insurance Commissioner and attached to PC-65 (Pl. Ex. S) and agrees with the plaintiff that they differ as detailed by the plaintiff in her Opposition Memorandum. However, the court notes that PC-65 and the model attached to it appears to only apply to new policies. The statute says "[f]or each new automobile liability insurance policy issued ..." General Statutes § 38a-336a(a). PC-65 states that "Public Act 09-72 requires an automobile insurer issuing a new automobile liability insurance policy to disclose to an insured at the time of sale or issuance ..." (Emphasis in original.) By contrast, the PC-22 "Instructions for Companies Using Informed Consent Form" require the informed consent form that complied with the 1993 changes to the statute "to be used with all new and renewal automobile liability policies becoming effective on or after January 1, 1994." At the time Noel was making changes to his policy on March 31, 2015, it was not a new policy. Therefore, the disclosures required by PC-65 did not apply to an informed consent form issued with a policy renewal.
Even if the disclosures required by PC-65 applied to the March 31, 2015 changes, the court finds that the discrepancies identified by the plaintiff are not material. The second, third, and fourth points raised by the plaintiff all relate to conversion coverage and stacking, neither of which are at issue here. The plaintiff’s fifth, sixth, and seventh points are relevant to UIM coverage, but the plaintiff offers no explanation of how any of those disclosure requirements could have made a difference in Noel selecting limits of $1.5 million or $50,000 for his UIM coverage. The court cannot discern how telling Noel that he would get the highest coverage selected if he checked more than one box, separating uninsured and underinsured motorist coverage headings, or telling him that his selection would affect renewals would have changed the outcome. Finally, because none of the distinctions raised by the plaintiff are material to the dispute here, the court holds that it was not material if the defendant did not obtain prior approval from the Department of Insurance before using a form that varies from the PC-65 model.
B. THERE ARE DISPUTED ISSUES OF MATERIAL FACT REGARDING WHETHER THE POLICY SHOULD BE STATUTORILY REFORMED TO RAISE THE LIMITS
The remaining three arguments made by the plaintiff relate to whether or not there are disputed issues of material fact concerning whether the policy should be reformed to apply the $1.5 million liability limits to the UIM coverage.
1. Statutory Reformation
The statute provides that the policy shall provide UIM coverage limits of $1.5 million unless any named insured has signed an informed consent form requesting lower limits in writing. In a situation such as this where a named insured has executed an informed consent form, the controlling case is the Supreme Court’s decision in Harlach v. Metropolitan Property & Liability Ins. Co., supra, 221 Conn. 185, 602 A.2d 1007. Although it was decided under the 1983 version of the predecessor statute, § 38-175c, that decision controls the analysis of the remaining three arguments raised by the plaintiff. The issue in Harlach was "whether the insured was bound by his written request for a lesser amount of UIM coverage when he later claimed that: (1) he did not understand the nature of his coverage; and (2) he did not intend to request a lesser amount of coverage." Id., 186, 602 A.2d 1007. After the 1983 change in the law, the insurance company sent the plaintiff a computer-generated notice that set forth many of the same items that are contained in the current model informed consent form. Id., 187-88, 602 A.2d 1007. The plaintiff initialed the minimum coverage option, signed his name, dated it, and sent the form back to the insurance company. Id., 188, 602 A.2d 1007. The trial court found that the plaintiff "did not make a conscious, knowing and purposeful waiver to accept less uninsured motorist coverage" and concluded that because the plaintiff did not fully perceive what coverage he was surrendering, he had not waived his statutorily mandated right to UIM coverage equal to the insurance liability coverage. Id., 189, 602 A.2d 1007.
The Supreme Court reversed. The court rejected the plaintiff’s argument that there should be reformation based on the statute’s mandate of equal limits for liability and UIM coverage. Id., 191, 602 A.2d 1007. Although the court recognized that an insurance policy must be read to incorporate statutory provisions such as the equivalence of liability and UIM coverage limits, it also held that those provisions could be "surrendered" under the statute. Id. at 192, 602 A.2d 1007. "A statute that establishes contractual rights, however, is equally capable of setting forth the manner in which those rights may be surrendered. In this instance, an insured could relinquish his entitlement to the larger amount of uninsured motorist coverage by ‘request[ing] in writing a lesser amount.’ This is exactly what the plaintiff did." Id., 191-92, 602 A.2d 1007.
In a later case under that same version of the statute, the Supreme Court held that where there were two consumer named insureds, the named insured who submitted a written request for lower limits was bound by those lower limits even if the other named insured had not signed a written request. Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 725, 714 A.2d 1209 (1998). In the present case, the court finds the plaintiff’s argument that the policy should be reformed because Noel did not understand uninsured and underinsured motorist coverage to be unavailing because the argument is contrary to the holdings of Harlach and Colonial Penn. See also Cartier v. Shuff, Superior Court, judicial district of New Haven, Docket No. CV-15-6053465-S (December 29, 2016, Frechette, J.) .
The plaintiff’s remaining argument for statutory reformation is that Noel did not speak enough English to read the informed consent form he signed. The Supreme Court has not had occasion to consider whether a policyholder who cannot speak English is bound by an informed consent form. The Supreme Court has, however, laid out the law on a duty to read in the insurance context: "The general rule is that where a person of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is his duty to read it and notice of its contents will be imputed to him if he negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a man of reasonable business prudence off his guard in the matter." Ursini v. Goldman, 118 Conn. 554, 562, 173 A. 789 (1934).
Before addressing the qualifications to the general rule in the next section regarding equitable reformation, the court will consider whether the general rule even applies in the first place. The issue is whether Noel, who the plaintiff claims has a limited command of English, could read the informed consent form. If he could not read the informed consent form, it could raise an issue of material fact as to whether the general rule of Ursini applied to him and he had surrendered his statutory rights under Harlach .
Shortly after it decided Ursini, the Supreme Court considered whether a plaintiff could recover under a life insurance policy on his mother, who could not speak English and who had signed an application for that policy that contained a falsehood about her health. Russo v. Metropolitan Life Ins. Co., 125 Conn. 132, A.2d 844 (1939). The court did not examine the general rule articulated in Ursini . Instead, it held that because "it is undisputed that the insured accepted the policy, expressly based on the application which she subscribed, the evidence of her inability to read or write English renders the statements in the application no less binding upon her. Having accepted and retained the policy she was bound by its provisions ... [T]he jury could reasonably have reached no other conclusion upon this issue than that the insured’s statement in her application that she had not been attended by a physician within five years, was false." Id., 137, 3 A.2d 844.
The Appellate Division of the Connecticut Circuit Court came to a similar conclusion in Bahr v. Prudential Ins. Co. of America, 5 Conn.Cir.Ct. 620, 260 A.2d 422, cert. denied, 158 Conn. 634, 252 A.2d 313 (1969). There, the court held that even if a policyholder could not speak English, she was bound by the statements she made in an application for medical insurance that she had signed. Id., 627-28, 260 A.2d 422. When the plaintiff applied for insurance, she had her son translate for her, and they revealed that she had a diabetic condition, but somehow this information did not get put into the application by their agent. Id., 624, 260 A.2d 422. Nevertheless, the Appellate Division held that having accepted and retained the policy, the plaintiff had a duty to know the contents of the application signed by her. Id., 627-28, 260 A.2d 422. See also Federico v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-0113506 (July 13, 1994, Sylvester, J.) (granting summary judgment despite a policyholder’s claims that he did not read or write English because he was bound by the statements he made in the application for the policy).
The cases discussed in the preceding paragraph all involved statements made by non-English speaking policyholders in their applications for their policies. This court has not found a case binding a non-English speaking policyholder to a policy or a document such as the informed consent form that was not based on the policyholder’s own information. Moreover, in one decision relying on Ursini, the Appellate Division of the Circuit Court of Connecticut affirmed a trial court that held that a contracting party who did not read an agreement regarding the sale of a used car because of language difficulty was not chargeable with knowledge of the terms of that contract. Corona v. Esposito, 4 Conn.Cir.Ct. 296, 301-02, 230 A.2d 624 (1966). After quoting the general rule from Ursini, that court held: "[t]he determination whether the plaintiff under all circumstances was chargeable with want of diligence in not informing himself as to the contents of the contract so as to charge him with knowledge thereof was within the discretion of the trial court and will not be disturbed by this court unless the discretion was abused. Under all the surrounding circumstances here prevailing, we cannot say that the trial court’s discretion was abused in this instance." Id., 302, 230 A.2d 624. Here, the court holds that the defendant has not established that "a fair and reasonable person could conclude only one way" on the issue of whether Noel "under all circumstances was chargeable with want of diligence in not informing himself as to the contents of the contract so as to charge him with knowledge." Accordingly, the court denies the motion for summary judgment.
It should be noted that the seller of the car was found to have engaged in fraudulent conduct as well. Id., 299, 230 A.2d 624.
2. Equitable Reformation
In addition to considering statutory reformation, the Harlach court also rejected that plaintiff’s argument under the theory of equitable reformation because there was no proof of mutual mistake nor was there proof of a unilateral mistake by the plaintiff coupled with fraud or inequitable conduct by the insurance company. Harlach v. Metropolitan Property & Liability Ins. Co., supra, 221 Conn. 190-91, 602 A.2d 1007. There is no basis in the present case for finding that these parties made a mutual mistake. Here, for this plaintiff to recover under the theory of equitable reformation, she must establish that Noel made a unilateral mistake coupled with fraud or inequitable conduct by this defendant. Id., 191, 602 A.2d 1007. Based on the submissions from the plaintiff, the court holds that the plaintiff has raised a disputed issue of material fact as to whether Noel made a unilateral mistake. Nevertheless, none of the three arguments raised by the plaintiff suggest that the defendant engaged in fraud. The issue remains as to whether any of the three arguments raise a disputed issue of material fact that the defendant engaged in inequitable conduct. The court concludes that they do not.
Inequitable conduct has been defined by the Appellate Court as "such knowledge, actual or imputed by law, as makes it inequitable for the purchaser to retain his [advantage] ..." (Internal quotation marks omitted.) Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn.App. 251, 267, 805 A.2d 105, 117, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002); see also Office Furniture Rental Alliance, Inc. v. Liberty Mutual Ins. Co., 981 F.Supp.2d 111, 123 (D.Conn. 2013) ("[w]here, unknown to one of the parties, an instrument contains a mistake rendering it at variance with the prior understanding of the parties, and the other party learns of this mistake at the time of the execution of the instrument and later seeks to take advantage of it, equity will reform the instrument so as to conform to the prior understanding").
First, the plaintiff asserts that Noel relied on Sacoto and that he did not request lower underinsured motorist coverage limits during his interactions with them on March 31, 2015. Even if all of this is established, it would not have any bearing on whether this defendant engaged in inequitable conduct. The court holds that this argument does not raise a genuine issue of material fact.
The remaining arguments are that Noel did not have a command of the English language and that he did not even know what uninsured and underinsured motorist coverage was at the time he signed the informed consent form. Although these arguments may raise an issue of disputed material fact as to whether Noel made a unilateral mistake about the UIM limits, they do not raise a genuine issue of material fact as to whether this defendant engaged in inequitable conduct. Accordingly, the plaintiff cannot recover under a theory of equitable reformation.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is denied.