Opinion
No. CV02 0282411-S
May 11, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #116
I PROCEDURAL HISTORY
On October 10, 2000, while driving southbound on Interstate 91, the plaintiff, Alice Baglioni, was injured in a single-car accident, when forced to swerve suddenly to avoid a box spring mattress lying in the middle of the highway, causing her motor vehicle to collide with a guardrail. The plaintiff's insurance carrier, the defendant Travelers Indemnity Company of America, denied uninsured motorist coverage for the accident. Seeking to recover the uninsured motorist benefits, the plaintiff filed suit against the defendant on October 15, 2000. On November 21, 2003, the defendant moved for summary judgment on the ground that there is no genuine issue of material fact as to whether the accident is covered under the plaintiff's uninsured motorist benefits of the policy since "she cannot prove that the accident arose out of the ownership, maintenance or use of [a] motor vehicle." (November 20, 2003, Motion for Summary Judgment.) The defendant also submitted a memorandum of law in support of the motion. On January 23, 2004, the plaintiff filed a memorandum of law in opposition with her affidavit, a copy of the uninsured/underinsured motorist coverage and an uncertified excerpt from her deposition. The motion was heard on the short calendar on February 4, 2004.
II DISCUSSION
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." Practice Book § 17-49. "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." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). In making that determination, the court may look at both direct and circumstantial evidence provided and any inference that has some definite basis in the facts. See Puro v. Henry, 188 Conn. 301, 310, 449 A.2d 176 (1982).
The defendant moves for summary judgment on the ground that no genuine issues of material fact exist with respect to the plaintiff's uninsured motorist claim and it is entitled to judgment as a matter of law. The defendant argues that the plaintiff cannot prove that her accident arose out of the "ownership, maintenance or use of a motor vehicle." (November 20, 2003, Motion for Summary Judgment.) It is the defendant's position that since "the plaintiff is not able to present any evidence whatsoever as to how the box spring came to be on the highway, she is not able to meet her burden of proving by a preponderance of the evidence that an accident occurred because of an unidentifiable vehicle." Id.
The plaintiff argues in her memorandum of law in opposition that genuine issues of material fact exist as to how the box spring came to rest on the highway. She further argues that: "Given that the box spring mattress was found in the middle of a busy interstate highway, where there was no overpass nearby from which somebody could have dropped it and no other easy access by which a pedestrian could have carried it onto the highway, there is sufficient circumstantial evidence to raise an issue of fact for the [fact finder] as to how the box spring got there." (January 21, 2004, Objection p. 4.)
The policy at issue defines an "uninsured motor vehicle" as a "land motor vehicle or trailer which is a hit and run vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in bodily injury," and, further, provides that the insurer "will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury . . . sustained by an insured and . . . [c]aused by an accident." The policy further defines a "hit and run" vehicle as one "whose operator or owner cannot be identified and which hits, or which causes an accident resulting in bodily injury without hitting . . . a vehicle which [the named insured] or any family member are occupying." (January 21, 2004, Objection, Attachment A.)
In Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 593 A.2d 498 (1991), the Connecticut Supreme Court interpreted similar provisions relating to uninsured motorist benefits in a policy. The court stated therein that to resolve the question as to whether the plaintiff's accident was covered by uninsured motorist insurance required it "to adjudicate the legal consequences of an accident caused by an unidentified vehicle that, without physical contact, causes injury to an individual or an automobile otherwise covered by uninsured motorist insurance." Id., 374. Two questions had to be answered for this resolution, the court indicated: "(1) Do the terms of the plaintiff's insurance policy entitle him, as a matter of contract construction, to indemnification for the accident? (2) Does the public policy of this state entitle the plaintiff to indemnification, even if his insurance policy does not so provide?" Id.
The court determined that based on the rules of contract construction, the policy language was unambiguous and the phrase "`which hits' would be superfluous unless it was intended to limit the circumstances under which indemnification is payable for injuries arising out of [the type of accident in which there is no physical contact with the vehicle causing the accident]." Id., 375-76. The court concluded that "the coverage afforded to the plaintiff is limited, as a matter of law, to hit and run accidents involving physical contact with the tortfeasor." Id., 376. As to the second question, the court looked at the legislative policy of the uninsured motorist statute, General Statutes § 38a-336(a)(1), prior case law and canvassed out-of-state jurisdictions to conclude "that a physical contact requirement is inconsistent with statutorily mandated uninsured motorist coverage." Id., 381-82. The court held that an insured should be entitled to recover uninsured motorist benefits based on a hit and run accident involving an unidentified vehicle or owner, without regard to physical contact. Id., 379-81.
In the present case, the policy includes under the "hit and run" section: "If there is no physical contact with the vehicle causing the accident, the insured must prove by a fair preponderance of the evidence that the injuries resulted from the negligence of an unidentified motorist . . ." (January 21, 2004, Objection, Attachment A.) This provision was not a part of the plaintiff's policy in the Streitweiser case. On the basis of the contract construction rules and Connecticut public policy, the plaintiff in the present case should be entitled to recover for the damages she sustained as a result of the hit and run, regardless of whether the vehicle which caused the accident had physical contact with her vehicle.
The evidence presented by the defendant in the present case fails to show the absence of a genuine issue of material fact as to the accident not arising out of the ownership, maintenance or use of a motor vehicle. "The 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." Miller v. United Technologies Corp., 233 Conn. 732, 751-52, 660 A.2d 810 (1995). On the other hand, the plaintiff has demonstrated the existence of questions of material fact.
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 514, 825 A.2d 72 (2003). "The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact." Barasso v. Rear Still Hill Road, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004). The circumstantial and direct evidence presented by the plaintiff set forth a sufficient factual predicate from which it can be determined that a genuine issue of material fact exists. Therefore, because there are genuine issues of material fact, the defendant's motion for summary judgment is denied.
III CONCLUSION CT Page 7243
The defendant's motion for summary judgment is denied. So ordered.
BY THE COURT
Peter Emmett Wiese, Judge