Opinion
No. FBT CV08 5019441 S
January 21, 2010
MEMORANDUM OF DECISION
The plaintiff in this case is an insured under an automobile policy issued by the defendant, Nationwide Mutual Insurance Company. The dispute between the parties involves the limits of coverage available to the plaintiff under the underinsured motorist provisions of the policy. In his complaint, the plaintiff alleges that on August 15, 2006 he was injured when the motor vehicle he was operating collided with a vehicle operated by Majorie O'Grady. O'Grady and her passenger, Helen Ialeggio, both lost their lives as a result of the collision. In his complaint, the plaintiff alleges that O'Grady's negligence caused the collision and his resulting injuries. The plaintiff claims that the policy issued by Nationwide provided underinsured motorists coverage in the amount of $500,000, but that Nationwide has refused to compensate him fairly and adequately under the terms of the policy.
Nationwide has filed an answer admitting the issuance of the policy. However, in its special defense Nationwide claims that it is entitled to reductions in underinsured motorists coverage for certain payments made either to the plaintiff or to Helen Ialeggio.
Nationwide filed a motion for summary judgment dated November 5, 2009. In that motion, Nationwide seeks a summary judgment adjudicating the amount of coverage available under the underinsured motorists provisions of the policy issued to the plaintiff by Nationwide.
Exhibit "1" to the motion for summary judgment is an affidavit signed by Mark Budziszewski, a claims adjuster for Progressive Northern Insurance Company. In his affidavit Budziszewski states that Progressive Northern, O'Grady's liability insurer, paid $100,000 to the executor of the estate of Helen Ialeggio in compensation for the fatal injuries she received in the August 15, 2008 collision.
Exhibit "2" to the motion for summary judgment is an affidavit signed by Tim Carbary, a claims specialist for Nationwide. In his affidavit Carbary authenticates the policy issued to the plaintiff (Exhibit "A" to his affidavit) and states that Nationwide paid $100,000 to the estate of Helen Ialeggio under the liability coverage of the policy issued to the plaintiff.
Exhibit "3" to the motion for summary judgment is the plaintiff's reply to a request for admissions filed by Nationwide. In that reply the plaintiff admits that he received the sum of $100,000 for the Progressive Northern Insurance Company.
A copy of the policy issued to the plaintiff by Nationwide is attached to Carbary's affidavit. An endorsement to that policy provides for uninsured/underinsured motorists coverage of $500,000 for each accident. Paragraph D of the endorsement is entitled "Limits of Insurance." Subparagraph 2 provides:
The Limit of Insurance shall be reduced by:
a. All sums paid or payable under any workers' compensation or similar law.
b. All sums paid by or for anyone who is legally responsible, including all sums paid under this Coverage Form's Liability Coverage.
Nationwide claims that, pursuant to the provisions of Subparagraph 2. b., the limits of the underinsured motorists coverage available to the plaintiff must be reduced by $100,000 paid by Progressive Northern to the plaintiff, by $100,000 paid to the executor of the estate of Helen Ialeggio by Progressive Northern, and by $100,000 paid by Nationwide to the estate of Helen Ialeggio.
In his opposition to the motion for summary judgment the plaintiff concedes that Nationwide is entitled to a reduction in coverage for the $100,000 he received from Progressive Northern Insurance Company, but disputes that Nationwide is entitled to reduce its coverage by either the $100,000 paid by Progressive Northern to the executor of Helen Ialeggio's estate or by the $100,000 paid by Nationwide to the executor.
In his opposition to the motion for summary judgment, the plaintiff further claims that a motion for summary judgment is not the proper vehicle for determining limits of coverage in an insurance policy. The plaintiff's position is that while Practice Book § 17-50 provides for an interlocutory summary judgment on the issue of liability and § 17-51 allows for partial summary judgment when appropriate, no provision of the Practice Book allows for summary judgment with respect to a single issue when resolution of that issue is not dispositive of a claim. Asserting a contrary position, Nationwide claims that the Connecticut Supreme Court has approved the use of motions for summary judgment to determine the extent of insurance coverage even when the granting of the motion would not lead to the entry of a final judgment.
"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." Provencher v. Enfield, 284 Conn. 772, 790-91 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Zielinski v. Kotsoris, 279 Conn. 312, 318-19 (2006).
Practice Book § 17-50 provides "summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages . . . Upon the conclusion of these proceedings, the judicial authority shall forthwith render the appropriate summary judgment."
In this case neither the plaintiff nor Nationwide have filed pleading praying the court to issue a declaratory judgment. Nationwide's motion for summary judgment seeks a court determination of the amount of coverage available under the plaintiff's underinsured motorists coverage without a determination of either liability under the plaintiff's policy or damages.
A declaratory judgment action is a special proceeding under General Statutes § 52-29. "The purpose of a declaratory judgment action . . . is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties." (Internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 33 (1995). "There is no question that a declaratory judgment is a suitable vehicle to test the rights and liabilities under an insurance policy." St. Paul Fire Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380 (1990), aff'd, 222 Conn. 823 (1992).
Practice Book § 17-55 provides: "A declaratory judgment action may be maintained if all of the following conditions have been met: (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure."
In Jacaruso v. Lebski, 118 Conn.App. 216 (2009), the trial court granted summary judgment when the reductions to the plaintiff's underinsurance coverage left the defendant without any liability under the policy and accordingly allowed judgment to enter in favor of the defendant. However, in this case, even if Nationwide were to prevail on the maximum reductions in coverage it claims, the issues of liability and damages would remain open and no judgment of any type could be entered.
Nationwide claims that in Liberty Mutual Insurance v. Lone Star Industries, 290 Conn. 767 (2009), our Supreme Court approved of a partial summary judgment regarding an asbestos exclusion in an insurance policy, but allowed other portions of the claim to go forward. However, in that case, unlike the present one, the trial court was addressed a complaint which included a count seeking a declaratory judgment interpreting a settlement agreement.
Nationwide also relies on Zulick v. Patron's Mutual Insurance Company, 287 Conn. 367 (2008), claiming that, in that case, the Supreme Court upheld the trial court's decision granting summary judgment as to the issue of whether an insured's coverage was limited to ten percent of the value of a property loss under the terms of the policy. However, in that case there were no issues of fact as to losses suffered by the insured plaintiff or that the defendant had, in accordance with its interpretation of the policy, tendered payment for the loss of personal property equal to ten percent of the limits of coverage under the policy. The trial court agreed with the defendant's interpretation of the policy limits and found for the defendant on the plaintiff's claim of breach of contract.
Unlike Liberty Mutual Insurance, supra, and Zulick, supra, no judgment, either partial or final, could be issued if the court were to grant, in whole or in part, Nationwide's motion for summary judgment. The court agrees with the plaintiff that, under the circumstances of this case, the court cannot decide the issue of the extent of underinsured motorists coverage available to the plaintiff under the policy issued by Nationwide on a motion for summary judgment. Accordingly, Nationwide's motion for summary judgment is denied.