Opinion
NNHCV186082179S
09-06-2019
Truck Insurance Company v. Martin Corraro et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Pierson, W. Glen, J.
MEMORANDUM OF DECISION RE MOTION FOR PARTIAL SUMMARY JUDGMENT (NO. 106)
PIERSON, J.
STATEMENT OF THE CASE
This is a declaratory judgment action concerning the plaintiff’s duty to defend the defendant, Martin Corraro, against claims brought against him by the co-defendant, Gabriella Giglietti, in an underlying action. According to the plaintiff, Truck Insurance Exchange, it is a reciprocal or "interinsurance" exchange owned by its policyholders, with its principal place of business in Los Angeles, California, authorized to write liability policies in Connecticut. Further according to the plaintiff, this action arises out of an existing controversy pending in the Superior Court of the State of Connecticut, entitled, Gabriella Giglietti ppa Candace Giglietti v. Martin Carrara, bearing docket no. NNH-CV-17-6074669 S (underlying action). The underlying action seeks damages for personal injuries allegedly sustained by Giglietti in an accident that occurred on August 17, 2017.
The plaintiff’s operative pleading is the Amended Declaratory Judgment Complaint dated February 11, 2018, which was filed with the court on February 11, 2019 (No. 104).
More specifically, according to the complaint in the underlying action, Giglietti claims that she was injured as a result of being struck by a golf cart operated by Corraro near 19 Raynham Road in New Haven, Connecticut. Further according to the complaint in the underlying action, the subject incident, and Giglietti’s claimed injuries and damages, were caused by the negligence and carelessness of Corraro.
In this case, the plaintiff claims that it insures Corraro under a certain umbrella policy of insurance (policy), issued to Corraro’s parents as named insureds, that was in effect on the date of loss alleged by Giglietti. According to the plaintiff, the policy has the following grant of coverage.
Part II- Coverage
If a claim is made anywhere in the world against any insured, we will, subject to the definitions, exclusions, terms and conditions of this insurance, pay damages caused by an occurrence in excess of the Retained Limit on the insured’s behalf. The amount of damages we pay will not exceed our Limit of Liability as explained in "Part IV- Limits of Liability." We will defend any insured for any claim or suit that is covered by this insurance but not covered by other insurance as described in "Part VI- Defense of Suits Not Covered By Other Insurance." If a claim or suit is made for damages excluded from coverage under this policy, we have no obligation to defend such claim or suit.
Once our Limit of Liability has been exhausted by payment, our obligations under this policy including any duty to defend are deemed completed and no further coverage continues beyond the date on which such payment is made.
Any expense we incur as the result of providing a defense or settling a claim or suit outside the United States of America (including its territories or possessions) or Canada will be part of and not in addition to the Limit of Liability. Our obligation to defend any claim or suit ends when the amount for net loss we pay equals our Limit of Liability. In countries other than the United States of America (including its territories or possessions) or Canada, where we cannot handle the case ourselves, we will advance the cost for someone else to handle the settlement or defense, if we have given that person our written consent.
Further according to the plaintiff, the policy contains the following definitions:
Part I- Definitions
In this policy, "you" and "your" mean the "named insured" in the Declarations and spouse if a resident of your household. "We," "us" and "our" mean the Truck Insurance Exchange.
Other words are defined as follows:
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2. Auto - means a land vehicle, trailer or semi-trailer, including farm tractor, trailer and implements.
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7. Insured - means:
a. you and the following residents of your household except as respects autos and watercraft :
(1) your relatives ; and
(2) any person under age 21 in the care of a person named above.
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14. Recreational vehicle - means a self-propelled land vehicle designed for use off public roads.
15. Relatives - means persons living with you who are related to you by blood, marriage or adoption.
16. Residence Premises - means the family dwelling and separate structures or that part of any other building where you reside, including the grounds on which the dwelling and separate structures are located.
The policy also contains the following pertinent exclusion:
Part III- Exclusions
We do not cover damages.
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14. Arising out of the ownership, maintenance, use, operation, entrustment to others, supervision, loading or unloading of any recreational vehicle owned by, rented to or controlled by the insured, while away from the residence premises owned by, rented to or controlled by the insured . This exclusion does not apply if such damages are covered by underlying insurance shown in the Schedule of Underlying Insurance (Item 3) in the Declarations of this policy.
In his answer, Corraro admits that the foregoing language is contained in the policy.
The plaintiff goes on to allege that to the extent Giglietti claims that her injuries were caused by Corraro’s operation of a golf cart, there is no coverage by operation of the exclusion set forth in Section 14 of Part III, and the plaintiff has no duty to defend or indemnify Corraro in connection with the claims made against him in the underlying action. By this action, the plaintiff asks the court to declare that the plaintiff has no obligation to defend or indemnify Corraro for the claims asserted against him in the underlying action.
On March 27, 2019, the plaintiff filed a motion for partial summary judgment (No. 106), seeking a judicial declaration that it owes no duty to defend Corraro in the underlying action "by operation of Exclusion 14" of the policy. According to the plaintiff’s motion, the allegations of the underlying complaint "come within the unambiguous terms of the exclusion, as Corraro was operating a recreational vehicle and the claims arise out of his use and control of such vehicle ..." Giglietti filed a memorandum of law in opposition to the plaintiff’s motion on May 3, 2019 (No. 109); Corraro filed an opposition brief on May 8, 2019 (No. 110.00). Oral argument was held on May 20, 2019, on which date the matter was submitted to the court for adjudication.
DISCUSSION
I
The motion for summary judgment is designed to eliminate the delay and expense accompanying a trial where there is no real issue to be tried. Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970). The standard of review applicable to motions for summary judgment is well established in our law. "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 summary 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... [I]ssue-finding, rather than issue determination, is the key to the procedure ... [T]he trial court does not sit as a trier of fact when ruling on a motion for summary judgment ... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Brackets in original; internal quotation marks omitted.) Northrup v. Witkowski, 175 Conn.App. 223, 230-31, 167 A.3d 443 (2017). "It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward ... evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." (Emphasis in original; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). The legal standard applicable to the movant is strict. See Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008) ("courts hold the movant to a strict standard"); Anderson v. Gordon, Muir & Foley, LLP, 108 Conn.App. 410, 416, 949 A.2d 488 (2008). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 431.
In response to a summary judgment motion, "the 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 ... To oppose a motion for summary judgment successfully, the non-movant must recite specific facts in accordance with Practice Book ... § § 17-45 and 17-46 ... which contradict those stated in the movant’s affidavits and documents and show that there is a genuine issue of material fact for trial. If he does not so respond, summary judgment shall be entered against him." (Citation omitted; internal quotation marks omitted.) Id., 430. A party opposing the motion "must present an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Mere assertions of fact are insufficient to establish the existence of a material fact and cannot rebut properly presented evidence in support of the motion. See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 430. "The existence of [a] genuine issue of material fact must be presented by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). In the context of a motion for summary judgment, a material fact "[is] a fact that will make a difference in the result of the case." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).
B
The plaintiffs’ summary judgment motion is filed in the context of a case in which the plaintiff seeks relief in the form of a declaratory judgment. Actions for declaratory judgment are authorized by General Statutes § 52-29(a) and governed by Practice Book § 17-54 et seq. Pursuant to § 52-29(a), "[t]he Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed" and such "declaration shall have the force of a final judgment." Practice Book § 17-55(2), which sets forth the conditions necessary to maintain a declaratory judgment action, provides, in relevant part, that there must be "an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties."
"The remedy by means of declaratory judgments is highly remedial and the statute and rules should be accorded a liberal construction to carry out the purposes underlying such judgments. One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits." (Internal quotation marks omitted.) Bysiewicz v. DiNardo, 298 Conn. 748, 757, 6 A.3d 726 (2010), citing Sigal v. Wise, 114 Conn. 297, 301-02, 158 A. 891 (1932).
A declaratory judgment action is an appropriate procedural vehicle for resolving issues of insurance coverage. See, e.g., DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 690-91, 846 A.2d 849 (2004) (declaratory judgment action permitted to determine insurer’s obligations under insurance policy, and judgment rendered is entitled to preclusive effect to the same extent as any other judgment). The court turns to the plaintiff’s duty to defend under the policy.
C
"Under the well established four corners doctrine, the duty to defend is broader than the duty to indemnify ... An insurer’s duty to defend is triggered if at least one allegation of the complaint falls even possibly within the coverage ... Indeed, [i]t is well established ... that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered ... The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured’s ultimate liability ... In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case ... Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage ... Because the duty to defend is significantly broader than the duty to indemnify, where there is no duty to defend, there is no duty to indemnify. ..." New London County Mutual Ins. Co. v. Sielski, 159 Conn.App. 650, 655-56, 123 A.3d 925 (2015); citing-DaCruz v. State Farm Fire & Casualty Co., supra, 268 Conn. 688.
D
"It is the function of the court to construe the provisions of the contract of insurance." (Citation omitted; internal quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co. of America, 308 Conn. 146, 154, 61 A.3d 485 (2013). "Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction. ... The determinative question is the intent of the parties, that is, what coverage the ... [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning ... However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally reasonable] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted ... [T]his rule of construction favorable to the insured extends to exclusion clauses." (Citation omitted; internal quotation marks omitted; brackets in original.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004).
"The burden of proving that an exclusion applies is on the insurer ..." (Citation omitted; internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 788 n.24, 67 A.3d 961 (2013). "[A]lthough policy exclusions are strictly construed in favor of the insured ... the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ... The interpretation of an insurance policy is based on the intent of the parties, that is, the coverage that the insured expected to receive coupled with the coverage that the insurer expected to provide, as expressed by the language of the entire policy ... The words of the policy are given their natural and ordinary meaning, and any ambiguity is resolved in favor of the insured ... The court must conclude that the language should be construed in favor of the insured unless it has a high degree of certainty that the policy language clearly and unambiguously excludes the claim." (Citation omitted; internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 796, 967 A.2d 1 (2009).
"In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms ... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading ... Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy." (Citation omitted; internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group., Inc., 311 Conn. 29, 38, 84 A.3d 1167 (2014).
"It is a basic principle of insurance law that policy language will be construed as laymen would understand it ..." (Citation omitted; internal quotation marks omitted.) Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223 n.5, 571 A.2d 107 (1990). "Connecticut courts have consistently referred to dictionary definitions to interpret words used in insurance contracts." (Citations omitted.) Id. Thus, "[to] determine the common, natural, and ordinary meaning of an undefined term, it is proper to turn to the definition found in a dictionary." (Citation omitted.) New London County Mutual Ins. Co. v. Zachem, 145 Conn.App. 160, 166, 74 A.3d 525 (2013).
II
The question presented is whether, at the time of the incident alleged in the complaint, Corraro was in "control" of a recreational vehicle such that the exclusionary language of Section 14 applies. For the following reasons, the court concludes that Corraro was in control of a recreational vehicle and that, pursuant to the language of the exclusion, the plaintiff has no duty to defend Corraro in connection with the claims asserted against him in the underlying action.
A
First, the court must determine if Corraro was in "control" of the golf cart at the time of the incident. The umbrella policy does not define the word "control." The complaint in the underlying action alleges that Corraro was operating the golf cart at the time of the incident.
The plaintiff argues that operation constitutes control. In response, Giglietti claims that the "generally accepted broader meaning" of the word "control" does not include "operation." Giglietti further claims that, as set forth in the umbrella policy, the use of the word "control" in connection with the words "own" and "rent" connotes a general power to exercise dominion over the golf cart, not temporary operation. Corraro argues that "control" means legal or physical control, not operation. The court agrees with the plaintiff.
The defendants’ arguments are inconsistent with the interpretive rules applicable to insurance contracts in Connecticut. The word "control" is clear and unambiguous, and a layman would understand the word "control" of a recreational vehicle to include the operation of that vehicle. To "control" means "to exercise restraining or directing influence over." Merriam-Webster Dictionary, "control ," transitive verb, 2a (On-line version, 2019); see also id., noun ("1 a: an act or instance of controlling also: power or authority to guide or manage"); Black’s Law Dictionary (11th ed. 2019) ("control vb ... 1. To exercise power or influence over ...") It has also been defined as "[the] ability to manage a machine, vehicle, or other moving object." Oxford Dictionaries, noun, 1.1 (On-line version, 2019 [Lexico.com] ); id., verb; 1 ("Determine the [behavior] or supervise the running of").
The alleged operation of a golf cart by Corraro clearly and unambiguously constitutes the exercise of restraint or directing influence by him over the golf cart, and the power and authority to guide or manage the golf cart; it further demonstrates his ability to manage a machine, vehicle, or other moving object, and determine its "behavior." A layman would understand the word "control" to include operation. See, e.g., Oxford Dictionaries, noun, 1.1 (On-line version, 2019 [Lexico.com] ) (sample sentence: "he lost control of his car"). By contrast, equating "control" with legal control, or a claim of right or dominion, would be inconsistent with what laypeople would understand the word to mean. Moreover, by urging more restrictive and legalistic definitions of the word "control," the defendants are attempting to create ambiguity where none exists. By operating the golf cart, Corraro was in control of it.
B
Having concluded that Section 14 of the exclusion includes the insured’s operation of a recreational vehicle, the court addresses the issue of whether a golf cart constitutes a "recreational vehicle" under the umbrella policy. For the reasons that follow, the court concludes that it does.
The umbrella policy defines "recreational vehicle" as follows: "a self-propelled land vehicle designed for use off public roads." The defendants do not dispute that a golf cart is a self-propelled land vehicle. Nor do they argue that a golf cart is designed for use on public roads. Clearly, golf carts, which are designed to be used on golf courses in connection with the recreational sport of golf, are designed for use off public roads.
"Golf carts ... are not generally designed for use on public roads, ... 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 ... Further, a golf cart has none of the common safety and operational features conductive to, or required, for travel on public roads ..." (Citations omitted; internal quotation marks omitted; brackets omitted.) Progressive Cas. Ins. Co. v. McCrea, Superior Court, judicial district of Hartford, Docket No. CV084038259 S (Apr. 23, 2010, Satter, J.T.R.) (49 Conn.L.Rptr. 722) (entering declaratory judgment in favor of insurer). This conclusion is supported by the fact that a golf cart does not qualify as a "motor vehicle" as defined by statute. General Statutes § 14-1(58), which defines "motor vehicle," provides in part that a motor vehicle "means any vehicle propelled or drawn by any nonmuscular power, except ... any other vehicle not suitable for operation on a highway." (Emphasis added.) Because it is not suitable for operation on a highway, a golf cart is not a "motor vehicle" as defined by General Statutes § 14-1(58). As observed by the court in Andrade v. Tradition Golf Club of Wallingford, LLC, judicial district of New Haven, Docket No. NNH-CV-13-6039774 S (Jan. 9, 2014, Nazzaro, J.) (57 Conn.L.Rptr. 462), "[it] is the vehicle’s design that controls in determining whether a particular vehicle is suitable for operation on a highway and qualifies as a motor vehicle ... [A] golf cart does not qualify as a motor vehicle ..." (Citing Pinheiro v. Board of Education, 30 Conn.App. 263, 272, 620 A.2d 159 [1993]); accord East v. Labbe, 46 Conn.Supp. 24, 33, 735 A.2d 371 (1998), aff’d, 252 Conn. 359, 746 A.2d 751 (2000).
The court concludes that a golf cart is a self-propelled land vehicle designed for use off public roads. See Dowdle v. Mississippi Farm Bureau Mutual Ins. Co., 697 So.2d 788, 791 (Miss. 1997) ("We apply the terms of the policy as written and find that golf carts are recreational vehicles ‘designed for use principally off public roads’ and are thus excluded under the terms of the policy").
CONCLUSION
For the foregoing reasons, the plaintiff’s motion for partial summary judgment (No. 106) is GRANTED, and a declaratory judgment enters in favor of the plaintiff, as follows:
The plaintiff, Truck Exchange Insurance, has no obligation to defend or indemnify the defendant, Martin Corraro, in connection with any claims asserted against him in a certain civil action pending in the Superior Court of the State of Connecticut, entitled, Gabriella Giglietti ppa Candace Giglietti v. Martin Corraro, bearing docket no. NNH-CV-17-6074669 S.