Opinion
No. CV02-0174638 S
February 7, 2006
MEMORANDUM OF DECISION ON MOTION TO REARGUE
The City of West Haven has filed a motion to reargue the court's decision dated December 15, 2005. Such motion is authorized under § 11-12 of the Practice Book. Its purpose is to demonstrate to the court that there is some decision or some principal of law which would have had a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. It may also be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the movant claimed were not addressed by the court. Opoku v. Grant, 63 Conn.App. 686, 692 (2001). "If a court is not convinced that its initial ruling is correct, then in the interests of justice it should reconsider the order . . ." Tiber Holding Corp. v. Greenberg, 36 Conn.App. 670, 671 n. 1 (1995). "[A] motion to reargue [however] is not to be used as an opportunity to have a second bite [at] the apple or present additional cases or briefs which could have been presented at the time of the original argument." Opoku v. Grant, supra, 692-93.
In its motion, the city states that the court's decision held that "West Haven had an automobile liability insurance policy and not a general excess policy with a self-insured retention"; that "[i]f West Haven is deemed a self-insurer in the present case, then the terms of the insurance policy between it and TIG require the [c]ity of West Haven to provide more than the statutory minimum liability insurance of $20,000 per person and $40,000 per occurrence"; and that "the explicit terms of the insurance policy between West Haven and TIG require West Haven to provide more than the statutory minimum in [General Statutes] § 14-112 for its minimum liability insurance of $20,000, and, therefore, West Haven must provide the first $100,000 of [uninsured and/or underinsured motorist] coverage." Pacileo v. West Haven, Superior Court, judicial district of Waterbury, Docket No. CV 02 0174638 (December 15, 2005, Moraghan, J.T.R.). In essence, the city is claiming that the court's decision held that it is not self-insured, and even if it were, it failed to provide for the statutory minimum for uninsured motorist coverage.
This ostensive third holding referenced by the city is not a separate holding but is from a portion of the last paragraph of the decision in which the court is summing up its holding referred to by the city in the second sentence of this paragraph.
The city relies in its motion on the following: (1) the court failed to address and take into consideration West Haven's claim that its policy with TIG Insurance Company (TIG) had required West Haven to investigate, defend, and settle claims, and required underlying insurance, and, consequently, the policy at issue was an excess policy, not a primary automobile liability policy; (2) the court failed to reconcile how West Haven could then become self-insured on January 17, 2002, if it indeed had an automobile liability insurance policy with TIG as opposed to an excess policy; (3) the court failed to address the Appellate Court's holding in Serra v. West Haven, 77 Conn.App. 267, 273 (2003), that "[a] self-insured retention does not create a legal obligation to third parties. It only means that if a legal obligation otherwise exists arising out of a statute or contract, for example, the party retaining that risk must bear the loss without indemnity"; and (4) the court failed to address which specific terms of the contract between West Haven and TIG, or how any terms therein required West Haven to provide the plaintiff with more than the statutory minimum in § 14-112. The city then concludes that its motion should be granted and the court should find that it was self-insured at the time of the accident at issue and is required to provide only the minimum coverage of $20,000.
In its memorandum of law, the city reargues and discusses that: (1) it is a self-insured entity and (2) the terms of the policy issued by TIG do not require it to provide more than the statutory minimum uninsured motorist coverage. As to the defendant's argument that West Haven is a self-insured entity, it further avers that (a) "the failure to file a notice of self-insurance with the commissioner is irrelevant if" the policy in the present matter were in substance, deemed to be a general excess policy"; and (b) "when the terms and conditions of the insurance policy agreement issued by TIG are analyzed, that . . . policy was an excess insurance policy with an underlying insurance requirement."
It is unnecessary for the court to deal with the city's first basis for its motion to reargue that "the court failed to address and take into consideration West Haven's claim that its policy with TIG had required West Haven to investigate, defend, and settle claims, and required underlying insurance, and therefore was an excess policy, not a primary automobile liability policy." The court's holding that West Haven did not become self-insured before January 17, 2002, because it failed to follow the statutory procedures as required by General Statutes § 38a-371(c) is dispositive of that issue regardless of whether the court addressed West Haven's claim that its policy with TIG had required West Haven to investigate, defend, and settle claims, and required underlying insurance, which resulted in it having an excess policy, not a primary automobile liability policy. Pacileo v. West Haven, supra, Superior Court, Docket No. CV 02 0174638.
The defendant's second basis that "the court failed to reconcile how the [c]ity of West Haven could then become self-insured on January 17, 2002, if it indeed had an automobile liability insurance policy with TIG as opposed to an excess policy" is an attempt by the city to have a "second bite [at] the apple." See Opoku v. Grant, supra. In its decision, the court thoroughly explained that West Haven did not become self-insured before January 17, 2002, "[b]ecause it had not filed the proper notice with the state, [it] had not elected to become a self-insurer for its automobile liability as required by § 38a-371(c)." Pacileo v. West Haven, supra, Superior Court, Docket No. CV 02 0174638. Therefore, the court did address how West Haven became self-insured after January 17, 2002.
Finally, the city's argument that it is a self-insured entity because "the failure to file a notice of self-insurance with the commissioner is irrelevant if the policy in the present matter were in substance, deemed to be a general excess policy"; and "when the terms and conditions of the insurance policy agreement issued by TIG are analyzed, that . . . policy was an excess insurance policy with an underlying insurance requirement" is again the city's attempt at a "second bite [at] the apple" to reassert and present further argument on issues already briefed by the parties and considered by the court. See Opoku v. Grant, supra. Accordingly, the court will not revisit these arguments.
The court will, however, comment on the defendant's assertion that the Appellate Court in Serra and the Supreme Court in Conzo v. Aetna Ins. Co., 243 Conn. 677 (1998), found West Haven to be a self-insured entity, despite the uncontroverted fact that it had never filed a notice of self-insurance with the commissioner prior to January 17, 2002. In Serra, the Appellate Court provided that "[t]he plaintiff also argues that because West Haven never filed a notice with the commissioner that it was self-insured and never received a certification of self-insurance, in accordance with [General Statutes] §§ 14-129 and 38a-371, it was not legally self-insured. The plaintiff, although mentioning this in his appellate brief and at oral argument, provides no legal analysis as to what effect, if any, this would have on his claim if true, and, therefore, we do not address it because it is inadequately briefed." (Emphasis added.) Serra v. West Haven, supra, 273-74. As a result, the Serra court chose not to discuss whether the city's lack of filing a notice with the commissioner that it was self-insured affected its status as a self-insured entity. In Conzo, the Supreme Court stated that "[t]he following facts are not disputed . . . The plaintiff sought to recover uninsured motorist benefits from West Haven, which is self-insured pursuant to General Statutes § 38a-371(c), and from the named defendant, Aetna Insurance Company (Aetna), which insured a vehicle owned by him." (Emphasis added.) Conzo v. Aetna Ins. Co., supra, 678-79. Because the parties stipulated that West Haven was self-insured, the effect of its failure to file a notice with the commissioner that it was self-insured and its status as a self-insured entity was never before the Conzo court. Accordingly, the defendant's argument that the Serra Court and the Conzo Court held West Haven to be a self-insured entity despite the fact that it had never filed a notice of self-insurance is an incorrect statement of the holding in those cases.
Furthermore, the recent case Piersa v. Phoenix Ins. Co., 273 Conn. 519 (2005), states, in dicta, that a municipal self-insurer is required to provide written notice to the commissioner of its election to be self-insured pursuant to § 38a-371(c). In Piersa, the Supreme Court held that Section 38a-334-6 of the Regulations of Connecticut State Agencies require a municipal self-insurer that wishes to impose permitted limits on its obligations as such to do so by a written document that appropriately provides for reduction of limits. It subsequently explains that there is no particular form that a self-insured entity must use in order to take advantage of the permitted reductions in limits and provides two possible routes a self-insured entity may choose to take advantage of the permitted limits. One of the options the Piersa Court lists is that the required written document may be part of its written notice to the commissioner of its election to be self-insured, pursuant to § 38a-371(c). Piersa v. Phoenix Ins. Co., supra, 527, 531. Accordingly, it is acknowledging that a municipality which chooses to self-insure is statutorily required to provide written notice to the commissioner of its election to be self-insured pursuant to § 38a-371(c).
Finally, the defendant's third and fourth bases for its motion to reargue and its second argument in its memorandum of law would be applicable only if the court's decision had held that West Haven was self-insured. The court's memorandum of decision, however, did not so hold. Rather, it held that "West Haven had an automobile liability insurance policy and not a general liability excess policy with a self-insured retention. Thus, West Haven was not self-insured at the time of the plaintiff's accident . . . and did not become self-insured until . . . more than two years thereafter." (Internal quotation marks omitted.) Pacileo v. West Haven, supra, Superior Court, Docket No. CV 02 0174638. Although the court did provide an analysis as to the outcome of the case if West Haven were deemed to be self-insured, this discussion is dicta, not a holding of the court. The court merely set forth an alternative analysis based on the city's argument that it was self-insured at the time of the incident. Therefore, the defendant's third and fourth bases for its motion to reargue and its second argument in its memorandum of law are moot as they concern points that are not applicable to the court's holding.
For the foregoing reasons, the plaintiff's motion to reargue has been considered and it, together with the relief it sought, is denied.