Opinion
No. HHB CV 05 4005696 S
August 31, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#117.25)
This matter is before the court concerning the third-party defendant Amica Mutual Insurance Company's (Amica) motion for summary judgment as to the defendant and third-party plaintiff, Holly Bobrowiecki's third-party complaint against it (#111). The parties presented oral argument at short calendar on July 16, 2007. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
In the underlying complaint in this matter, the plaintiff, Dale Walter, alleges that he suffered personal injuries as a result of a single motor vehicle collision which occurred on December 31, 2003, in Southington, Connecticut, when he was a passenger in a vehicle which was owned by and was being driven by Bobrowiecki. He alleges that Bobrowiecki drove off the road and struck a tree.
Walter claims, in count one, that the collision was caused by Bobrowiecki's negligence and carelessness, in that she drove at an unreasonable rate of speed; she failed to keep the vehicle under proper and reasonable control; she failed to keep a proper and reasonable lookout; she failed to apply her brakes in time; she failed to turn the motor vehicle so as to avoid a collision; and she was operating the motor vehicle while under the influence of liquor or drug or while impaired by liquor or drug in violation of General Statutes § 14-227a.
In count two, Walter alleges that, at the time of the collision, he was insured by Allstate Insurance Company (Allstate), and that Bobrowiecki was an uninsured/underinsured motorist. He claims that, under his policy with Allstate, he is legally entitled to recover, from Allstate, all sums to which he is legally entitled to recover as damages from the owner or operator of an uninsured/underinsured vehicle. In count three, Walter alleges that Bobrowiecki deliberately or recklessly operated her motor vehicle while under the influence of liquor or drug or while impaired by liquor or drug in violation of General Statutes § 14-227a.
Walter seeks to recover monetary damages from Bobrowiecki and Allstate. He also seeks double or treble damages from Bobrowiecki pursuant to General Statutes § 14-295.
Bobrowiecki claims, in her third-party complaint against Amica, that on December 31, 2003, when Walters alleges that he suffered injuries when he was a passenger in the vehicle she was operating, she was insured by an Amica insurance policy while she was driving an automobile covered thereby. In count one, she claims that Amica agreed to pay on her behalf all sums which she shall become legally obligated to pay as damages because of bodily injury or property damage arising out of the ownership, maintenance or use of her automobile, including any newly acquired automobile. She alleges that Amica has neglected and refused to defend the action brought against her by Walter or to assume any responsibility therefor as required by the terms of the policy. She alleges also that she has been compelled to retain the services of an attorney and to incur other expenses in connection with the defense of Walter's action. In count two, she alleges that Amica has neglected and refused to pay medical bills which she incurred for medical care as a result of the accident or to pay for the collision damage and total loss of her vehicle. She seeks money damages from Amica.
In its summary judgment motion, Amica contends that it is entitled to summary judgment in its favor as to Bobrowiecki's third-party complaint because there was no insurance coverage for the vehicle which she was driving on the date of the accident, and, accordingly, it has no obligation to defend or to indemnify her from damages which she caused Walter to suffer. In addition, Amica asserts that it has no obligation to provide medical and collision coverage to her since she did not comply with the provisions of her policy.
The court refers to the December 31, 2003 incident as the accident or the collision.
In her memorandum in opposition, Bobrowiecki argues that her contractual duty to report to Amica the newly acquired vehicle which she was driving at the time of the collision, a Ford Mustang (Mustang), was excused by the doctrine of "impracticality" of performance. See Bobrowiecki's memorandum in opposition, p. 5. In addition, she contends that she is entitled to coverage since the Mustang was a replacement vehicle for the Lincoln Navigator (Navigator) listed in the Declaration of the policy.
II STANDARD OF REVIEW
"To succeed on a motion for summary judgment, [t]he movant must show 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 . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Id., 586.
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). A preliminary showing of genuineness is required. See Id., 679, citing Conn. Code of Evidence § 9-1. However, the Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, the Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, no objection was raised on the ground that any exhibit was not properly authenticated. Accordingly, the court deems such objections to have been waived by Bobrowiecki and by Amica. In the exercise of its discretion, the court has considered the exhibits presented by each side.
III DISCUSSION
"An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy . . . The policy words must be accorded their natural and ordinary meaning . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous." (Internal quotation marks omitted.) Enviro Express, Inc. v. AIU Insurance Co., 279 Conn. 194, 199, 901 A.2d 666 (2006).
"Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Montoya v. Montoya, 280 Conn. 605, 613, 909 A.2d 947 (2006).
"The question of whether an insurer has a duty to defend its insured is purely a question of law, which is to be determined by comparing the allegations of [the] complaint with the terms of the insurance policy. In such circumstances, the facts are not in dispute . . ." (Internal quotation marks omitted.) Wentland v. American Equity Insurance Co., 267 Conn. 592, 599 n. 7, 840 A.2d 1158 (2004).
"[T]he duty to defend is considerably broader than the duty to indemnify . . . 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 . . . It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint . . . Moreover, [i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured . . . 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, whereas the duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy. 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) DaCruz v. State Farm Fire and Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004).
"[I]f the complaint alleges a liability which the policy does not cover, the insurer is not required to defend." (Internal quotation marks omitted.) Security Insurance Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 712, 826 A.2d 107 (2003). "[T]he duty to defend means that the insurer will defend the suit, if the injured party states a claim, which . . . is for an injury covered by the policy; it is the claim which determines the insurer's duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact covered." (Internal quotation marks omitted.) Hartford Casualty Insurance Co. v. Litchfield Mutual Fire Insurance Co., 274 Conn. 457, 464, 876 A.2d 1139 (2005).
The evidence before the court contains the following undisputed facts. Since she planned to move from Connecticut to Florida in early January 2004, Bobrowiecki never registered the Mustang in Connecticut after she bought it and took possession of it. The only vehicle listed on the declarations pages of her Amica insurance policy (policy) was the Navigator. See Exhibit B to Amica's motion, p. 1 of 3.
The policy provides that a "[n]ewly acquired auto" includes any private passenger auto which the named insured becomes the owner of during the policy period. See Exhibit D to Amica's motion, subsection K, p. 1 of 14. The policy also provides that for "coverage to apply to a newly acquired auto which is in addition to any vehicle shown in the Declarations, you must ask us to insure it within 14 days after you become the owner. If a newly acquired auto replaces a vehicle shown in the Declarations, coverage is provided for this vehicle without your having to ask us to insure it." See Exhibit D to Amica's motion, subsection K, paragraph 2a, p. 2 of 14. The policy also provides that, if the insured asks Amica to insure a newly acquired auto "after a specified time period . . . has elapsed, any coverage we provide for a newly acquired auto will begin at the time you request the coverage." See Exhibit D to Amica's motion, subsection K, paragraph 2, p. 2 of 14.
Bobrowiecki does not dispute Amica's assertion that a Ford Mustang is a private passenger automobile. See State v. Jones, 44 Conn.App. 338, 340, 689 A.2d 517, cert. denied, 240 Conn. 929, 693 A.2d 301 (1997) (referring to three individuals sitting in a Ford Mustang automobile).
In an examination under oath, Bobrowiecki agreed that, at the time she acquired it, the Mustang was "in addition to the Navigator." See Exhibit C to Amica's motion, p. 60.
Bobrowiecki never notified Amica that she wanted to add the Mustang to her policy as a newly acquired automobile. On December 11, 2003, twenty days before the accident, ownership of the Mustang was assigned to Bobrowiecki by Rui Guimares, the seller. See Exhibit E to Amica's motion (Assignment of Ownership). The final payment was delivered to the seller and Bobrowiecki took possession of it on December 22, 2003. See Exhibit C to Amica's motion, pp. 29-30 (examination under oath); Bobrowiecki affidavit, ¶ 7. Thus, even after she had possession of the vehicle, for several days before the accident, Bobrowiecki had the opportunity to notify Amica about her newly acquired vehicle, but did not do so, because she planned to register the Mustang in Florida when she moved there in January 2004. See Exhibit C to Amica's motion, pp. 60-61 (Bobrowiecki stated that she had no intention of notifying Amica about the Mustang until after she got to Florida); Bobrowiecki affidavit, ¶ 10. She stated that the Mustang was going to be shipped to Florida, she was going to wait to put it on her policy until after she got to Florida, and it was going to have Florida license plates. She also stated that she wished to avoid expense. See Exhibit C to Amica's motion, p. 58.
After the accident, Bobrowiecki was hospitalized from December 31, 2003 until January 3, 2004. See Exhibit 4 to Bobrowiecki's memorandum of law (hospital records). Her mother, June Bobrowiecki, notified Amica of the accident on January 16, 2004. See June Bobrowiecki affidavit, ¶ 8. In her memorandum in opposition, p. 6, Bobrowiecki states that it is not disputed that Amica was first notified of the accident and the Mustang on that date. Even if December 22, 2003 is the date on which Bobrowiecki acquired the Mustang, the notification to Amica concerning it did not occur until twenty-five days later, well after the fourteen-day contractual notification period, which was set forth in the policy, had elapsed.
Amica, as the movant, has shown that it is entitled to judgment as a matter of law as to Bobrowiecki's claim that Amica is obligated to defend her and indemnify her, since the Mustang is not covered by the policy, as Amica was not asked to insure it within fourteen days after Bobrowiecki became the owner. As discussed below, Bobrowiecki, as the opposing party, has not presented evidence that demonstrates the existence of genuine issues of material fact as to essential elements of the doctrine of impracticability, on which she relies, since she has not presented evidence to show that the claimed supervening event, the collision, occurred without her fault, and since she has not presented evidence showing that the collision made her performance impracticable.
Rabatie v. U.S. Security Insurance Co., 581 So.2d 1327 (Fla.App. 3 Dist. 1989), review dismissed, 589 So.2d 294 (1991), cited by Bobrowiecki, provides a useful illustration. In Rabatie, in contrast to the fourteen-day notification period contained in Bobrowiecki's insurance policy, the insurance policy provided for coverage of a newly acquired vehicle, provided that the insured notified the insurance company within thirty days after acquisition. See id., 1329. The court concluded that "the policy provides automatic coverage upon the acquisition of ownership of the additional vehicle, subject to the condition subsequent that the insurer be notified within thirty days." Id., 1331. There, it was undisputed that there was a written communication to the insurer within the thirty-day period. See id.
Bobrowieicki has cited no Florida statute which requires a thirty-day notice period.
In Empire Fire Marine Insurance Co. v. Taylor, 608 So.2d 854 (Fla.App. 3 Dist. 1992), also cited by Bobrowiecki, another case involving a thirty-day notice provision, the insurer was not notified of the newly acquired automobile until the forty-first day after acquisition. As a result, there was no coverage, even though the accident occurred within the thirty-day period. See id.
In contrast, here Bobrowiecki argues that the severity of the injuries which she suffered as a result of the accident and the effect thereof on her subsequent ability to manage her affairs raise genuine issues of material fact as to whether the common-law doctrines of impossibility or "impracticality" of performance excused her from strict compliance with the policy's fourteen-day reporting requirement. See memorandum in opposition, pp. 6-8.
"The impracticability doctrine . . . recogni[zes] . . . the fact that certain conditions cannot be met because of unforeseen occurrences . . . A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes. 2 Restatement (Second), Contracts § 261 ["Restatement"]; E. Farnsworth, Contracts (1982) § 9.6, p. 678." (Citation omitted; footnote omitted; internal quotation marks omitted.) Dills v. Enfield, 210 Conn. 705, 717, 557 A.2d 517 (1989). See also McMahon v. New London County Mutual Insurance Co., Superior Court, judicial district of New Haven, Docket No. CV 98 0408032 (August 23, 1999, Jones, J.) (25 Conn. L. Rptr. 469) (cited by Bobrowiecki).
"To ascertain the commonly approved usage of a word, we look to the dictionary definition of the term." (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 678, 911 A.2d 300 (2006). The Supreme Court has utilized Webster's Third New International Dictionary (Webster's) as a source for dictionary definitions. See id. Webster's, p. 1136, in the closest relevant definition, defines "impracticable" to mean "not practicable: incapable of being performed or accomplished by the means employed or at command." Likewise, Webster's, p. 1780, defines "practicable," in the closest relevant definition, to mean "possible to practice or perform: capable of being put into practice, done, or accomplished."
Bobrowiecki argues that Florida law should be applied since she asserts that the policy was purchased and issued in Florida to a resident of Florida. See Bobrowiecki's memorandum in opposition, p. 5, n. 2. The court need not determine whether Connecticut law or Florida law applies, since, concerning the application of the doctrine of impracticability, the same legal principles are applicable regardless of which State's law is applied. See City of Key West v. R.L.J.S. Corp., 537 So.2d 641, 648 n. 10 (Fla.App. 3 Dist. 1989) (citing Restatement), review denied, 1800 Atlantic Developers, Inc. v. Key West, 545 So.2d 1367 (Fla. 1989).
Bobrowiecki's presentation, while acknowledging the applicability of the four-pronged test which must be made met in order for a party to avail herself of the impracticability doctrine, presents no evidence as to how there is any genuine issue of material fact as to the third prong, the requirement that she show that "the impracticability resulted without the fault of the party seeking to be excused." Dills v. Enfield, supra, 210 Conn. 717. She has not shown that the accident, and resulting injuries to her, which she claims prevented her from providing timely notice to Amica, occurred without fault by her.
The undisputed facts in the record show that her own drinking of alcohol contributed to the events which led Bobrowiecki to drive the unregistered Mustang on a public highway on the night of the accident. She decided to drive the Mustang, which she had never driven before, around the block, which she stated "was a dumb thing to do." See Exhibit C to Amica's motion, pp. 9, 10 (examination under oath). When asked why she drove the car that night after she had been drinking, Bobrowiecki stated, "I shouldn't have, I wanted to take it for a ride before it got shipped to Florida." See Exhibit C to Amica's motion, p. 12.
Bobrowiecki acknowledged that, after the accident, she was charged with driving under the influence (DUI). When asked whether she had pleaded guilty to driving while intoxicated, she stated, "I guess. I don't remember." See Exhibit C to Amica's motion, p. 11. She admitted that she paid a fine of $600.00 and that her license to drive was suspended for one year. See Exhibit C to Amica's motion, pp. 11-12. These penalties are consistent with a conviction for operation while under the influence of liquor or drug, or while having an elevated blood alcohol content, in violation of General Statutes § 14-227a.
General Statutes § 14-227a(g) provides, in relevant part, "Penalties for operation while under the influence. Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, (A) be fined not less than five hundred dollars or more than one thousand dollars, and (B) be (i) imprisoned not more than six months, forty-eight consecutive hours of which may not be suspended or reduced in any manner, or (ii) imprisoned not more than six months, with the execution of such sentence of imprisonment suspended entirely and a period of probation imposed requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person's motor vehicle operator's license or nonresident operating privilege suspended for one year."
According to the police report concerning the collision, it occurred at 1:20 a.m. on Meriden Avenue in Southington. See Exhibit A to Amica's motion (police report). The police report describes the collision as involving the Mustang rotating, striking the curb, leaving the roadway, and striking a SNET utility pole, which snapped at its base. Bobrowiecki was transported by ambulance to a hospital to be treated for her injuries and the Mustang sustained heavy front end damage.
No evidence has been presented to show that the accident occurred because of some reason unrelated to Bobrowiecki's negligence or recklessness as the operator of the Mustang. For example, Bobrowiecki has not shown that a mechanical failure caused the Mustang to leave the road, going so fast that it snapped a telephone pole. Also, there is no evidence to show that the accident was caused by another vehicle. It is undisputed that the Mustang, which Bobrowiecki was operating, was the only vehicle involved in the collision.
In addition, Bobrowiecki has not presented evidence which creates a genuine issue of material fact as to the first required prong of the impracticability test, that the event made the performance impracticable. As discussed above, Bobrowieicki intended to have the Mustang put on her policy after she moved to Florida. See Exhibit C to Amica's motion (examination under oath), pp. 57-58, 60-61. She stated that she was planning on leaving Connecticut for Florida around January 10, 2004, more than fourteen days after December 22, 2003. See Exhibit C to Amica's motion, p. 16. She stated, concerning the Mustang, "I was going to have it shipped to Florida, and then I was planning on registering it down in Florida." See Exhibit C to Amica's motion, p. 17.
The Supreme Court has stated that while "intent ordinarily is an issue to be decided by the fact finder, when the facts alleged permit only one conclusion regarding an actor's state of mind, that issue is appropriately resolved by way of summary judgment . . . [E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Citation omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire and Casualty Co., supra, 268 Conn. 690 n. 14.
Here, the facts in the record permit only one conclusion as to Bobrowiecki's intent concerning notification to Amica about the Mustang. Bobrowiecki never intended to advise Amica, within the fourteen-day period, that she wanted to add the Mustang to her policy.
Thus, the claimed supervening event, the collision, did not prevent her from complying with the policy's fourteen-day notice requirement, since she never intended to notify Amica about the Mustang until after that period had expired, when, after moving to Florida, she planned to register it there. Bobrowiecki has not submitted evidence to create a genuine issue of material fact concerning the first prong of the impracticability test. The collision did not make her performance impracticable.
The same reasoning applies to Bobrowiecki's claim for collision coverage for the Mustang. The provisions for collision coverage contain a similar fourteen-day notification requirement. Exhibit B to Amica's motion contains copies of the declarations pages for the policy. At page 2 of 3, it provides for collision coverage for the Navigator. For a newly acquired auto, such as the Mustang, to have collision coverage, the insured "must ask us to insure it within: . . . 14 days after you become the owner if the Declarations indicate that Collision Coverage applies to at least one auto." See Exhibit D to Amica's motion, subsection K, paragraph 2b, p. 2 of 14. Here, since the Declarations did indicate that collision coverage applied to the Navigator, to obtain collision coverage for the Mustang, Bobrowiecki was required to ask Amica to cover it within fourteen days of becoming the owner of the Mustang. As discussed above, this did not occur. As a result, there is no collision coverage for the Mustang as a result of the December 31, 2003 collision.
Likewise, the same reasoning applies to Bobrowiecki's claim for medical payments coverage. The policy declarations provide for "Other Than Collision Loss" coverage for the Navigator. See Exhibit B to Amica's motion, p. 2 of 3. For a newly acquired auto, such as the Mustang, to have "Other Than Collision Coverage," the insured "must ask us to insure it within: . . . 14 days after you become the owner if the Declarations indicate that Other Than Collision Coverage applies to at least one auto." See Exhibit D to Amica's motion, subsection K, paragraph 2c, p. 2 of 14. Thus, to obtain Other Than Collision Coverage for the Mustang, Bobrowiecki was required to ask Amica to cover it within fourteen days of becoming the owner of the Mustang. As discussed above, this did not occur. As a result, there is no coverage for the medical expenses incurred as a result of the December 31, 2003 collision.
Bobrowiecki also argues that, under the policy, the Mustang was a replacement vehicle for the Navigator, since her plan, before the collision occurred, was to sell the Navigator and ship the Mustang to Florida, to be registered there. The policy provides, "[i]f a newly acquired auto replaces a vehicle shown in the Declarations, coverage is provided for this vehicle without your having to ask us to insure it." See Exhibit D to Amica's motion, subsection K, paragraph 2a, p. 2 of 14. In her memorandum in opposition, p. 8, Bobrowiecki states, "[i]f all had gone as she planned the Navigator would have been sold by the time the shipping company delivered the Mustang to her home in Florida."
The quoted policy language is unambiguous. The policy does not define the term "replaces." In ascertaining the common meaning of terms utilized in a contract where no definition is provided, the Supreme Court has looked to the dictionary definition, as found in Webster's. See Metropolitan Life Insurance Co. v. Aetna Casualty Surety Co., 255 Conn. 295, 307, 765 A.2d 891 (2001); Moore v. Continental Casualty Co., 252 Conn. 405, 410-11, 746 A.2d 1252 (2000). Webster's, p. 1925, in the closest relevant definition, defines "replace," to mean "to take the place of: serve as a substitute for or successor of." Similarly, in defining "replacement," it provides the illustration, "a new fixed asset or portion of an asset that takes the place of a discarded one." See Webster's, p. 1925.
Florida caselaw also uses Webster's as a source of definitions for undefined terms. See V.K.E. v. State, 934 So.2d 1276, 1292 (Fla. 2006).
Based on the evidence in the record, no genuine issue of material fact is created by Bobrowiecki's plan to sell the Navigator. The Mustang did not replace the Navigator. As Bobrowiecki's presentation makes clear, at the time of the collision, the Mustang was not a substitute for the Navigator; rather, she still owned the Navigator. It had not been traded in for the Mustang. Also, as discussed above, Bobrowiecki agreed, in an examination under oath, that the Mustang was "in addition to the Navigator." See Exhibit C to Amica's motion, p. 60.
As also set forth above, it is undisputed that Bobrowiecki intentionally did not register the Mustang in Connecticut, and that she knew that she should not be driving it on the road. In view of the events which ensued, the Mustang never replaced the Navigator. In these circumstances, under the policy, at the time of the collision, the Mustang was not covered as a newly acquired auto which had replaced the Navigator. Accordingly, compliance with the fourteen-day notice period was required. As discussed above, the notice was given to Amica well after the expiration of fourteen days after Bobrowiecki acquired the Mustang.
In the absence of any genuine issue of material fact, since she did not comply with the provisions of her policy, Amica has presented evidence which is sufficient to show that it is entitled to judgment as a matter of law as to Bobrowiecki's third-party complaint. Amica has no obligation to defend Bobrowiecki or to indemnify her from any alleged damages which she caused Walter to suffer. In addition, Amica has no obligation to provide medical expense or collision coverage to her.
CONCLUSION
For the reasons stated above, Amica's motion for summary judgment as to Bobrowiecki's third-party complaint is granted.
It is so ordered.