Opinion
HHBCV176037503S
09-12-2018
Robert KLIN v. LIBERTY MUTUAL INS. CO.
UNPUBLISHED OPINION
OPINION
Morgan, J.
The plaintiff, Robert Klin, filed this action against the defendant, Liberty Mutual Insurance Company, his insurance carrier, seeking, among other damages, payment of uninsured motorist benefits in connection with injuries he allegedly sustained when he stepped off a sidewalk curb while directing traffic. The complaint is in four counts. In addition to the first claim for uninsured motorist benefits, the plaintiff also asserts claims for breach of the implied covenant of good faith and fair dealing, violation of the Connecticut Unfair Insurance Practices Act, and violation of the Connecticut Unfair Trade Practices Act. The defendant moves for summary judgment on all counts on the ground that the insurance policy (LM Policy) does not provide coverage for the incident at issue in this case.
By order dated January 22, 2018, the court bifurcated the uninsured motor vehicle claim (first count) from the bad faith claims (second, third, and fourth counts). See Docket Entry No. 111.01.
Summary Judgment Standard
"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 ... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... It is not enough ... for the opposing party merely to assert the existence of such a disputed issue ... Mere assertions of fact, whether contained in a complaint or in a brief, are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] ...
"As a general rule, then [w]hen a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by ... [the rules of practice], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him ... Requiring the nonmovant to produce such evidence does not shift the burden of proof. Rather, it ensures that the nonmovant has not raised a specious issue for the sole purpose of forcing the case to trial ...
"More specifically, [t]he party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents ... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence." (Emphasis in original; internal quotation marks omitted.) Bisson v. Wal-Mart Stores, Inc., 184 Conn.App. 619, 626-27 (2018).
Discussion
In his complaint, the plaintiff alleges that on September 1, 2015, he was employed as a Hartford police officer working traffic control when an unknown motorist entered the area that was blocked off from the general public. In an effort to stop the unknown motorist from entering the prohibited area, the plaintiff stepped off the curb into the street and fell, injuring his left knee. The plaintiff alleges further that his injuries were caused by the negligence of the unknown driver who drove away from the scene without providing any identifying or insurance information. The plaintiff claims that the unknown vehicle was an "uninsured motor vehicle" as that term is used in the LM Policy such that the defendant has a duty to pay damages to the plaintiff up to the applicable limits of the uninsured motorist coverage under the LM Policy. The defendant filed an answer denying that the plaintiff’s alleged injuries are covered under the LM Policy and raising several special defenses.
On February 7, 2018, the defendant filed a motion for summary judgment arguing that the unknown vehicle that allegedly caused the plaintiff to step off the curb is not an "uninsured motor vehicle" under the LM Policy because the vehicle stopped at the scene of the incident and then was waved through the area by the plaintiff who made no effort to identify the vehicle’s owner or operator. The defendant also argues that the plaintiff failed to promptly notify the police of the incident as required by the LM Policy. Filed with the defendant’s memorandum of law in support of the motion for summary judgment are an affidavit with a copy of the LM Policy and an affidavit with a copy of the plaintiff’s deposition transcript.
On February 27, 2018, the plaintiff filed an objection to the defendant’s motion for summary judgment. He argues that there are two factual issues in dispute which preclude the entry of summary judgment: (1) whether the plaintiff failed to "promptly notify the police" of the incident as required by the LM Policy; and (2) whether the unknown vehicle qualifies as a "hit and run" vehicle under the LM Policy. The plaintiff did not file any affidavits or other documentary evidence in opposition to the motion. The court heard oral argument on the matter at short calendar on June 4, 2018.
It is undisputed that the LM Policy provides coverage for bodily injuries caused by uninsured motor vehicles. Part C.C.3.a. of the LM Policy defines an "uninsured motor vehicle" as "a land motor vehicle or trailer of any type ... [w]hich is a hit-and-run vehicle whose operator or owner cannot be identified and which hits ... [y]ou ..." The term "hit-and-run vehicle" is not further defined in the LM Policy. Part E.C.1. of the LM Policy provides that the defendant has "no duty to provide coverage under this policy unless there has been full compliance with the following duties: ... [p]romptly notify the police if a hit-and-run driver is involved."
Insurance policies are interpreted and construed under general principles of contract construction. National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 88-89, 961 A.2d 387 (2009). The policies are "enforced in accordance with the real intent of the parties as expressed in the language employed in the policy." Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). The policy words are given their ordinary meaning, with any ambiguity being construed in favor of the insured. Allstate Ins. Co. v. Lenda, 34 Conn.App. 444, 452, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d 149 (1994). In the absence of any ambiguity, the policy will be enforced in accordance with its terms. Id.
In Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., 42 Conn.App. 219, 678 A.2d 1005 (1996), aff’d, 240 Conn. 544, 692 A.2d 1254 (1997), our Appellate Court discussed the meaning of the term "hit-and-run vehicle" where, like here, the term was not expressly defined in the insurance policy.
We look to dictionary definitions to ascertain the ordinary meaning of a "hit and run vehicle." See Wrinn v. State, 234 Conn. 401, 406, 661 A.2d 1034 (1995). The term has meaning in common parlance. "Hit-and-run," as it refers to the driver of a vehicle, has been defined as "guilty of leaving the scene of an accident without stopping to render assistance or to comply with legal requirements." Webster’s Third New International Dictionary. It has also been defined as "[d]esignating or involving the driver of a motor vehicle who drives on after striking a pedestrian or another vehicle." American Heritage Dictionary (New College Ed. 1981). Because the driver of the vehicle that struck the plaintiff stopped to render assistance and because the plaintiff affirmatively acted to dismiss the driver from the scene of the accident, we conclude that the plaintiff was not struck by a hit and run vehicle.Id., 224. The Sylvestre court affirmed the granting of summary judgment holding that because the vehicle that struck the plaintiff was not a "hit and run vehicle" the policy’s provisions for uninsured motorist coverage were inapplicable. Id.
In the present case, the unknown vehicle never came into physical contact with the plaintiff. According to the plaintiff’s uncontroverted deposition testimony, the vehicle came to a complete stop at the direction of the plaintiff. The plaintiff made no attempt to pull the vehicle over, identify the driver of the vehicle, or take down the license plate number of the vehicle. To the contrary, the plaintiff waved on the unknown vehicle to proceed through the area without further interaction. On these undisputed facts, the court finds that the unknown vehicle, which allegedly caused the plaintiff to step off the curb was not a "hit and run vehicle" and, therefore, is not an "uninsured motor vehicle" as that term is used in the LM policy. Consequently, the LM Policy affords no benefits to the plaintiff for the incident at issue in this case.
The court acknowledges that the mere lack of physical contact between an unidentified vehicle and the plaintiff does not negate uninsured motorist benefits. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 377, 593 A.2d 498 (1991).
The plaintiff also argues that summary judgment should not be granted because there is a factual issue in dispute with respect to the LM Policy’s notice provisions. This argument is unavailing for two reasons. First and foremost, the court’s finding herein that the unknown vehicle is not an "uninsured motor vehicle" under the LM Policy renders the argument moot. Second, there is no evidence that the plaintiff satisfied the notice provisions of the LM Policy.
As noted above, the LM Policy requires the plaintiff to "promptly notify the police if a hit-and-driver is involved." Turning again to the dictionary, "notify" means "to give notice of or report the occurrence of." Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003). The plaintiff contends that because he himself was a police officer at the time of the incident, the requirement that the police be notified promptly was automatically satisfied. The court is not persuaded that plaintiff’s own knowledge of the incident is sufficient to satisfy the notice provisions of the LM policy.
The second, third, and fourth counts, which allege bad faith in the consideration and investigation of the plaintiff’s uninsured motorist claim are entirely dependent upon the viability of the first count. Consequently, the court’s finding that the LM Policy does not provide coverage for the incident at issue is dispositive of the remaining counts of the complaint.
Conclusion
The defendant has satisfied its burden of proving that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. The plaintiff has not presented evidence that demonstrates the existence of any disputed factual issues. As found above, the LM policy does not provide coverage for the injuries allegedly sustained by the plaintiff. The motion for summary judgment is therefore granted as to all four counts of the plaintiff’s complaint.