Opinion
CV176031306S CV186034507S
07-31-2019
William GREGORY v. Naomi M. CLARK et al. Jennifer Cedeno v. Amica Mutual Insurance Co.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT, AMICA MUTUAL INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT, # 126
As stated below, this memorandum of decision also addresses the motion for summary judgment present in Cedeno v. Amica Mutual Ins. Co., pleading # 114.
Swienton, J.
The defendant, Amica Mutual Insurance Company (Amica), moves for summary judgment on the following grounds: (1) that the vehicle operated by the tortfeasor is not, by operation of law and/or pursuant to the terms of the plaintiff’s insurance contract with Amica, considered an underinsured motor vehicle and/or (2) that the underinsured motor vehicle policy limits contained in the plaintiff’s insurance contract with Amica have been reduced to zero by operation of law and/or pursuant to the terms of the plaintiff’s insurance contract with Amica as a result of the plaintiff and his passenger’s recovery of damages from the tortfeasor. The plaintiff, William Gregory, objects on the grounds that (1) the tortfeasor’s vehicle is underinsured and (2) Amica’s policy language does not allow Amica to limit its liability to the plaintiff by what the tortfeasor paid to the passenger in Gregory’s vehicle.
This case has been consolidated with the underinsured motorist claim of Jennifer Cedeno that is entitled: Cedeno v. Arnica Mutual Ins. Co., Superior Court, judicial district of New London, Docket No. CV-18-6034507-S. Because the identical legal issues addressed by this motion are present in the Cedeno v. Amica Mutual Ins. Co. matter, Amica has filed an identical motion for summary judgment in the Cedeno proceeding. Amica’s motions for summary judgment as to Gregory and Cedeno are denied. The identical legal issues addressed by the present motion are also present in the Cedeno v. Arnica Mutual Ins. Co. matter, so the court issues a single decision which will be filed in both matters.
FACTS
The present case has been consolidated with a parallel action entitled Cedeno v. Amica Mutual Ins. Co., Superior Court, judicial district of New London, Docket No. CV-18-6034507S. The plaintiffs, William Gregory and Jennifer Cedeno, allege the following relevant facts in their operative complaints. On August 20, 2015, the plaintiffs were injured in a motor vehicle accident caused by the tortfeasor, Naomi Clark. At the time of the accident, the tortfeasor was operating a vehicle owned by Jansen A. Clark, who had an automobile insurance policy with Hawleysville Preferred Insurance Company with liability insurance coverage in the amount of $100,000 per person/$300,000 per accident auto liability coverage, and no excess or umbrella insurance coverage to cover their liability in this matter. At the time of the accident, Gregory had a policy in effect with Amica providing for $200,000 single limit underinsured motorist coverage. The plaintiffs allege that Amica has not provided for underinsured motorist benefits for the plaintiffs in accordance with General Statutes § 38a-336.
Hereinafter, William Gregory and Jennifer Cedeno will be referred to collectively as the plaintiffs and individually by name where appropriate.
Cedeno was an insured under this policy as well.
Bodily injury claims were brought against Clark by the plaintiffs, Gregory and Cedeno, and were resolved through a settlement with Hawleysville in the amount of $100,000 as to each plaintiff, exhausting the $100,000 per person limit in the tortfeasor’s insurance policy. Gregory and Cedeno each individually claim damages in excess of $100,000.
On February 7, 2019, Amica filed a motion for summary judgment against Gregory on the grounds that (1) the vehicle operated by the tortfeasor is not, by operation of law and/or pursuant to the terms of Gregory’s insurance contract with Amica, considered an underinsured motor vehicle, and/or (2) that the underinsured motor vehicle policy limits contained in Gregory’s insurance contract with Amica have been reduced to zero by operation of law and/or pursuant to the terms of Gregory’s insurance contract with Amica as a result of Gregory’s and Cedeno’s recovery of damages from the tortfeasor. On March 18, 2019, Gregory, in turn, filed an objection to Amica’s motion on the grounds that the tortfeasor’s vehicle is underinsured and Amica’s policy language does not allow Amica to limit its liability to Gregory by what the tortfeasor paid to Cedeno. Both parties filed replies and the parties’ arguments were heard at short calendar on May 6, 2019.
Because the identical legal issues addressed by the present motion are also present in the Cedeno v. Amica Mutual Ins. Co., Superior Court, judicial district of New London, Docket No. CV-18-6034507-S matter, Amica has filed an identical motion for summary judgment in the Cedeno matter.
On March 19, 2019, Cedeno filed her objection to the motion for summary judgment. Amica filed a reply to her objection, and argument was also heard on May 6, 2019.
DISCUSSION
"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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (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.) Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (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).
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 motions for summary judgment are somewhat akin to a common-law motion for judgment on the pleadings. Miller’s Pond Co., LLC v. New London, 273 Conn. 786, 789 n.5, 873 A.2d 965 (2005); see also Sewer Commission v. Norton, 164 Conn. 2, 5, 316 A.2d 775 (1972) ("[a] motion for judgment on the pleadings is of limited utility, for it requires a situation where the parties are willing to admit the facts and place their entire case on the legal issues raised, waiving the right to replead if the legal issue is decided against them" [internal quotation marks omitted]).
"Our resolution of the [present motion] revolves around our interpretation of ... the language of the [named] plaintiff’s insurance policy. Interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy ... Unlike certain other contracts, however, where absent statutory warranty or definitive contract language the intent of the parties and thus the meaning of the contract is a factual question ... construction of a contract of insurance presents a question of law for the court ..." (Internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 711-12, 59 A.3d 207 (2013).
Amica first moves for summary judgment on the ground that there is no genuine issue of material fact that the vehicle operated by the tortfeasor is not, by operation of law and/or pursuant to the terms of Gregory’s insurance contract with Amica, considered an underinsured motor vehicle. Amica argues that the tortfeasor’s vehicle is not underinsured because the tortfeasor had auto liability coverage of $300,000 per accident, which Amica argues was more than the $200,000 per accident available on Gregory’s Amica policy. Gregory, in response, argues that the vehicle is underinsured per the holding in Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991). Gregory argues that $100,000 was available to him from the tortfeasor’s policy against Amica’s policy limit of $200,000 because the tortfeasor’s liability coverage had split liability limits of $100,000 per person/$300,000 per accident.
General Statutes § 38a-336(e) provides in relevant part: "[A]n underinsured motor vehicle means 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." (Internal quotation marks omitted.) "[Section] 38a-336 requires that, in determining whether a motor vehicle is underinsured the total of all liability insurance coverage available to an individual claimant must be compared to the amount of underinsured motorist coverage in each of the policies against which the victim has a claim. If the total of the liability insurance is less than the uninsured motorist limits of the individual’s policy, then the uninsured motorist coverage becomes applicable." (Internal quotation marks omitted.) Covenant Ins. Co. v. Coon, supra, 220 Conn. 34. "The application of [§ 38a-336] requires two distinct steps: (1) determining whether a vehicle is in fact underinsured, so that coverage is available; and (2) calculating the amount of the actual award due the victim." Id., 36. "[T]he total of the per person limit is the amount of liability insurance available to the claimant ..." Id., 34; see also D’Arcangelo v. Hartford Casualty Ins. Co., 44 Conn.App. 377, 379-80, 689 A.2d 502 ("[w]here the insurance policy is a split limit policy, the total of the per person limit is the amount of liability insurance available to the claimant" [internal quotation marks omitted]), cert. denied, 240 Conn. 925, 692 A.2d 818 (1997).
In Casseus v. Nationwide Property & Casualty Ins. Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-09-5012134-S (February 8, 2011) , the Superior Court addressed a similar factual scenario to the present case where multiple plaintiffs were involved in an accident with a tortfeasor who was insured by a split policy limit. In determining what was available to each of the plaintiffs, the Casseus court stated that "the critical factor is what money (insurance proceeds or otherwise) was available to each of the plaintiffs from the underinsured tortfeasor." Id. The court noted that "this concept of availability was reinforced more recently in Doyle v. Metropolitan Property & Casualty Co., 252 Conn. 79, 743 A.2d 156 (1999) ... which reiterated the holding in Coon that the critical issue to be resolved is what is the insurance coverage available to the plaintiff from the tortfeasor’s policy and compare that amount to what is available from the plaintiff’s own underinsured motorist benefit." Casseus v. Nationwide Property & Casualty Ins. Co., supra . In its determination of the amount available to the plaintiffs, the Casseus court held that "[t]his case presents the situation of the [tortfeasor’s policy] having split liability limits ($25,000 per person, $50,000.00 per occurrence.) Therefore, the amount available to each of the plaintiffs under that policy was $25,000.00 ... For [the plaintiffs], the total amount available to each of them from [the tortfeasor’s] policy was $25,000 each." (Citation omitted.) Id.
Amica seems to argue that because there are two claimants seeking underinsured coverage from a single limit policy, then the "per accident" policy limit of the tortfeasor should control as to whether the tortfeasor’s vehicle was underinsured. The court disagrees. The court looks to what the individual claimant has available from the tortfeasor’s liability bonds or insurance policies applicable at the time of the accident.
In Anastastia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 59 A.3d 207 (2013), a husband and wife were injured in a motor vehicle accident and were covered by their underinsured motorist policy "that provided underinsured motorist coverage up to a maximum of $250,000." Id., at 708. Although the primary issue in Anastastia was whether an insurer is entitled to a reduction of its limits of liability for underinsured motorist coverage by punitive damages paid to the insured, the court concluded that the tortfeasor was "underinsured." "At the time of the collision, the motor vehicle driven by the tortfeasor was ‘underinsured’ as defined by the plaintiff’s insurance policy and by General Statutes § 38a-336 because the $100,000 coverage limit of the tortfeasor’s policy was lower than the $250,000 underinsured motorist coverage limit of the plaintiff’s policy." Id., at 709-10.
Similarly, in the present case, the tortfeasor’s liability coverage had split liability limits of $100,000 per person/$300,000 per accident. In accordance with our Supreme Court’s holding in Coon, and its conclusory statement in Anastastia, the total amount available to each of the plaintiffs under the tortfeasor’s policy was $100,000 per person, and, therefore, the Clark’s vehicle is deemed to be underinsured.
Amica also moves for summary judgment on the ground that, even if the tortfeasor’s vehicle is determined to be underinsured, the setoffs allowed by regulation and policy language reduce the underinsured policy limit to zero. Relying on Allstate Ins. Co. v. Lenda, 34 Conn.App. 444, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d 149 (1994), Amica argues that the terms of its policy allows a reduction of the $200,000 per accident underinsured motorist coverage policy limit to zero because both plaintiffs have collectively recovered $200,000 from the tortfeasor’s auto liability carrier, which entitles Amica to policy limit reductions in accordance with the following language: "[t]he limits of liability shall be reduced by all sums: 1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible." Gregory, in contrast, cites to Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 621 A.2d 258 (1993) and Buell v. American Universal Ins. Co., 224 Conn. 766, 621 A.2d 262 (1993) for the proposition that Amica’s policy language does not allow Amica to limit its liability to Gregory by what the tortfeasor paid to Cedeno.
In Stephan and Buell, our Supreme Court held that the plaintiffs’ automobile insurers could not reduce the plaintiffs’ uninsured/underinsured motorist coverage limits by settlement payments made to third parties. See Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 764-65; Buell v. American Universal Ins. Co., supra, 224 Conn. 770-71. In Stephan v. Pennsylvania General Ins. Co., supra, 764, the policy language at issue provided: "Any amounts otherwise payable for damages under this coverage shall be reduced by all sums: (1) Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible." (Internal quotation marks omitted.) In Buell v. American Universal Ins. Co., supra, 770, the policy language at issue provided: "The limit of liability shall be reduced by all sums: (1) Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible." (Internal quotation marks omitted.) Our Supreme Court held in both cases that the plain and unambiguous use of the phrase "the bodily injury" prevented the defendant from reducing the uninsured/underinsured motorist coverage benefits owed to the plaintiff by taking credit for payments made to others because "the bodily injury" undoubtedly refers to the claimant’s bodily injury, but not to any other person’s bodily injuries. See Stephan v. Pennsylvania Ins. Co., supra, 764-65; Buell v. American Universal Ins. Co., supra, 770-71.
In Allstate Ins. Co. v. Lenda, supra, 34 Conn.App. 451, our Appellate Court addressed, inter alia, whether an insurer of an automobile policy providing for underinsured motorist benefits was entitled to reduce the amount of underinsured motorist benefits provided under that policy by the full amount of liability coverage paid by, or on behalf of, a tortfeasor. This included amounts paid to individuals other than the injured policyholder who sought underinsured motorist benefits. Id. The relevant policy at issue stated that "[w]e will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person ... The coverage limit for: (1) each person is the total of all damages arising out of bodily injury to one person in any one motor vehicle accident ... The limits of this coverage will be reduced by: (1) all amounts paid by the owner or operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy." (Internal quotation marks omitted.) Id., 452. The court in Allstate held that the terms of the policy entitled the insurer to reduce the amount of underinsured motorist benefits provided under that policy by the full amount of liability coverage paid by, or on behalf of, the tortfeasor because the word "includes" suggests that there are other sums by which the limits of the coverage may be reduced and the phrase "all amounts paid" is "exceptionally broad and unrestricted regarding the types of damages that may be used to reduce the limits of the coverage." Id., 453. The Allstate court held further that the phrase, "the injury," in § 38a-334-6(d)(1) of the Regulations of Connecticut State Agencies did not limit the amount that may be used to reduce the limits of coverage to only those attributable to the claimant’s injury and not to the injury of others because the phrase "the injury" relates to the person who paid or on whose behalf damages have been paid, which was in contrast to Stephan and Buell, where the phrase "the bodily injury" related to the purpose for which the damages were paid." Id., 454-55.
Section 38a-334-6(d) of the Regulations of Connecticut State Agencies provides: "(1) The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury, (B) paid or are payable under any workers’ compensation law, or (C) paid under the policy in settlement of a liability claim. (2) The policy may also provide that any direct indemnity for medical expense paid or payable under the policy will reduce the damages which the insured may recover under this coverage. (3) Any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment. (4) This subsection shall not apply to underinsured motorist conversion coverage except that no payment under a policy providing underinsured motorist conversion coverage shall duplicate payment from any other source."
"The Connecticut rule of construction of insurance policies is well settled. If the terms of an insurance policy are of doubtful meaning, that permissible construction which is most favorable to the insured is to be adopted; but if they are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and the courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. at 712. "It is a basic tenet of insurance policy interpretation that the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Nichols v. Salem Subway Restaurant, 98 Conn.App. 837, 843, 912 A.2d 1037 (2006).
In the present case, paragraph B of Amica’s policy issued to Gregory contains the following language: "[t]he limits of liability shall be reduced by all sums: 1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible." Def.’s Mot. Summ. J., Ex. F, Uninsured/Underinsured Motorists Coverage- Connecticut, p. 2. Similar to the policy language at issue in Stephan and Buell, Amica’s policy language at issue specifies that "[t]he limit of liability shall be reduced by all sums ... [p]aid because of the bodily injury ..." See Stephan v. Pennsylvania Ins. Co., supra, 224 Conn. 764; Buell v. American Universal Ins. Co., supra, 224 Conn. 770; Def.’s Mot. Summ. J., Ex. F, Uninsured/Underinsured Motorists Coverage- Connecticut, p. 2. The policy language at issue in the present case, therefore, does not establish that Amica is entitled to reduce its limits of liability for amounts other than those sums paid towards the claimant’s injury. See Stephan v. Pennsylvania Ins. Co., supra, 764 ("[the bodily injury] undoubtedly refers to the claimant’s bodily injury, and not to any other bodily injuries"); Buell v. American Universal Ins. Co., supra, 771 ("[w]e conclude that [the bodily injury] refers only to the claimant’s bodily injury and not to the bodily injuries of others"); see also Massey v. Geico General Ins. Co., Superior Court, judicial district of New London, Docket No. CV-13-6016439-S (May 9, 2014) ("[The Superior Court] concludes that the use of the phrase ‘the injury’ refers only to the claimant’s injury because the chosen language is specific and restrictive. Following this interpretation, it would be impermissible under [the insurer’s] policy language to permit [the insurer] to take reductions for amounts other than those sums paid towards the claimant’s injury"). Accordingly, Amica is not entitled to summary judgment as a matter of law.
In this case, Amica’s argument runs contrary to a plain reading of the contract. "A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity." Kitmirides v. Middlesex Mutual Assurance Co., 65 Conn.App. 729, 733, 783 A.2d 1079 (2001), aff’d, 260 Conn . 336, 796 A.2d 1185 (2002). It is clear that the policy language at issue in paragraph B contains limiting language specifically referring to the claimant’s bodily injury and not to any other bodily injuries. See Buell v. American Universal Ins. Co., supra, 224 Conn. 771. In its memorandum in support of its motion for summary judgment, Amica specified the terms of paragraph B and stated that "the unambiguous terms of this portion of Amica’s contract allows for the reduction of [Gregory’s] $200,000 per accident UIM limit by all sums paid because of the bodily injury of an insured or on behalf of persons or organizations who may be legally responsible." See Def.’s Mot. Summ. J., p. 15. In its reply memorandum, Amica argues that paragraph A of the Limit of Liability portion of Gregory’s Uninsured/Underinsured Motorists Coverage policy makes a distinction between the definition of "bodily injury" in the context of a per person underinsured motorist limit and "bodily injury" in the context of a per accident underinsured motorist limit and, therefore, Amica’s policy includes all bodily injury resulting from any one accident when there is a per accident single limit. See Def.’s Reply to Pl.’s Obj. to Mot. Summ. J., p. 9-10; see also Def.’s Mot. Summ. J., Ex. F, Uninsured/Underinsured Motorists Coverage- Connecticut, p. 2. In response, Gregory states that the policy language of paragraph A is changed in a separate endorsement that follows directly after the first underinsured endorsement. See Pl.’s Surreply to Mot. Summ. J., p. 5; see also Def.’s Mot. Summ, J., Ex. F, Single Uninsured/Underinsured Motorists Limit. Gregory argues, nonetheless, that paragraph A, in either endorsement, does not control from what sources Amica can claim a credit. See Pl.’s Surreply to Mot. Summ. J., p. 5.
Gregory concedes that Amica will pay no more than the $200,000 in any one accident, as well as agreeing that there is a difference between receiving a reduction in the amount of coverage available and receiving a reduction in damages for sums already received from the tortfeasor or other sources.
CONCLUSION
Amica’s motions for summary judgment as to both plaintiffs are denied because the identical legal issues addressed by the present motion are also present in the Cedeno v. Amica Mutual Ins. Co. matter.