Opinion
No. CV 08-4038259-S
April 23, 2010
MEMORANDUM OF DECISION
Plaintiff, Progressive Casualty Insurance Company, brings this declaratory judgment action seeking a ruling that it has no duty to defend or indemnify the defendants, Christine McCrea or Jonathan McCrea, in connection with any claim for damages arising out of an accident occurring on February 3, 2008 involving the operation of a motorized golf cart.
The facts are as follows.
On or about November 9, 2007, plaintiff, Progressive Casualty Insurance Company, ("Progressive") issued to the defendants, Christine and Jonathan McCrea, as named insureds, a Connecticut motor vehicle policy with the policy period November 9, 2007 through May 9, 2008. On or about February 3, 2008, defendant Christine McCrea operated a red, 204 "Clays Car" golf cart on a public road in Wellington, Florida. At that time and place, Audrey Hanrahan was a passenger on the golf cart and allegedly fell from it. On February 4, 2009, the estate of Audrey Hanrahan instituted a wrongful death action against, among others, Christine McCrea in the Circuit Court of the Fifteenth Judicial Circuit in Palm Beach, Florida. Said action remains pending. It is alleged in that action that as a result of having fallen from the golf cart, Audrey Hanrahan suffered injuries which ultimately led to her death.
Defendants Christine and Jonathan McCrea demanded that the plaintiff Progressive defend and indemnify them in the Hanrahan action.
The policy provides that to trigger liability coverage there must be "an accident arising out of the: (1) ownership, maintenance or use of a vehicle . . ." The policy defines "vehicle" as follows:
"Vehicle" and "vehicles" mean a land motor vehicle:
a. of the private passenger, pickup or a cargo van type;
b. designed for operation principally upon public roads;
c. with at least four wheels; and
d. with a gross vehicle weight rating of 1,200 lbs. or less, according to the manufacturer's specification.
On the date of the accident defendant Christine McCrea was driving and Audrey Hanrahan was the passenger in a typical golf cart with the following characteristics: It was gas operated with a low slung open body, and with no sides and no doors; it had a plastic roof, partial front windshield, a rearview mirror and a horn; it had no windshield wiper, no safety belts, no side mirror, no turn signal, and no speedometer.
These characteristics were both testified to by the defendant Christine McCrea and observed by this court viewing a photograph of the golf cart submitted as Exhibit 6 in this case. The plaintiff contends the cart is not a land motor vehicle within the meaning of the policy because it is not "of a private passenger, pickup or cargo van type "and it is not `designed for operation principally upon public roads.'"
The sole function of a trial judge in a declaratory judgment action is to ascertain the rights of the parties under the existing law. Preston v. Connecticut Siting Council, 21 Conn.App. 85, 89 (1990). The plaintiff bears the burden of proof in such an action. Scott v. General Iron Welding Co., 177 Conn. 132, 139 (1976).
It is well settled in our law that an insurance policy is a contract of adhesion and any ambiguity in the wording of a policy must be construed in favor of the insured. Auto Glass Express, Inc. v. Hanover Insurance Co., 293 Conn. 218, 231-32 (2009).
No Connecticut appellate level court has yet addressed whether a golf cart is considered a "vehicle," as that term is defined in the context of an automobile insurance policy. However, courts in other parts of the country have addressed the issue. In general, the majority of those cases hold that a golf cart is not covered under a typical motor vehicle policy. Those cases are of somewhat limited precedential significance because of the variety and the description of the coverage.
Dowdle v. Mississippi Farm Bureau Mut. Ins. Co., 697 So.2d 788 (Miss. 1997), addressed a policy with a definition similar to the one at issue here. That policy stated an exclusion for "equipment designed for use principally off public roads." Id. 789. The court concluded that "golf carts are recreational vehicles `designed for use principally off public roads' and are thus excluded under the terms of the policy." Id. 791.
In Herring v. Horsemann Ins. Co., 795 So.2d, 209, 211 (Fla.Dist.Ct.App.4th Dist. 2001), the court said: "[G]olfcarts . . . are not generally designed for use on public roads, and their use on public roads in Florida is prohibited except under conditions specified by statute . . . A golf cart, patently, is designed for operation at low speed on golf courses or for similar sporting or recreational purposes or for transportation on private property." Chase v. State Farm Mut. Auto Ins. Co., 131 Ariz. 461 (Ariz.Ct.App. DLP. 1 (1983)), affirmed a trial court judgment which concluded that a policy exclusion for a "land motor vehicle designed for use principally off public roads except while being used on public roads included golf carts." In Bailey v. Neth Ins. Co., 615 F.Sup.2d 1332, 1338 (M.D.Fla., 209), the policy defined "auto" as "a land motor vehicle designed for travel on public roads." The court concluded that a "golf cart is not an `auto' under the Subject policy because it is not designed to be operated on public roads." The court stated as its rationale that "a golf cart is designed for operation at low speed on a golf course or for similar sporting or recreational purposes, or for transportation on private property . . . Further, a golf cart has none of the common safety and operational features conducive to, or required, for travel on public roads . . ." "[T]he golf cart did not come equipped with seat belts, side view mirrors or a speedometer as required by the federal Department of Transportation regulations."
Cases of other jurisdiction also support the conclusion that a golf cart does not comply with the policy definition of "a land motor vehicle: (a) a private passenger, pickup or cargo van type." In Progressive Cas. Ins. Co. v. Dunne, 665 A.2d 322, 326 (Md.Ct.Spec.App. 1995), the court said, "One would not ordinarily view a golf cart as a `private passenger, station wagon or jeep type automobile,' or as an `automobile of the truck type' or `an automobile . . . of the pick up body, sedan delivery or panel truck type.'"
One Connecticut case is tangentially on point. In Kelly v. Ron's Golf Cart Rental, Judicial District of New Haven, CV 385960 (May 26, 2000, Levin, J.) [ 27 Conn. L. Rptr. 442], the court held that a golf cart as not a motor vehicle as that term is defined in Conn. Gen. Stat. §§ 14-98, 100a(a) and 104a because it was not equipped to be registered and was therefore unsuitable for highway use.
All of the above cases are of some precedential value, but this court renders its decision primarily on its viewing of Plaintiff's Exhibit 6 showing an open golf cart without sides, without seatbelts, windshield wipers, side view mirror, turn signal, or speedometer and only a partial windshield. It concludes that the golf cart in question does not meet the policy definition of a "land motor vehicle: (a) of the private passenger, pickup body or cargo van type; or (b) designed for operation principally upon public roads."
Defendant argues this declaratory judgment action should be denied because the plaintiff has failed to notify the fiduciary of the Estate of Audrey Hanrahan as an interested party. The plaintiff did notify the attorney for the estate. The short answer to this defense is, however, that Practice Book Sec. 17-56(c) provides that: "no declaratory judgment shall be defeated by the nonjoinder of parties or the failure to give notice to interested persons. The exclusive remedy for nonjoinder or failure to give notice to interested persons is by motion to strike . . ."
Thus, the court renders a declaratory judgment that the plaintiff, Progressive Casualty Insurance Company, has no duty to defend or indemnify defendants Christine McCrea or Jonathan McCrea in connection with any claim for damages arising out of the incident of February 3, 2008, involving the operation of the motorized golf cart.