Opinion
No. CV-09-5012398
August 30, 2011
MEMORANDUM OF DECISION RE DEFENDANT SAFECO'S MOTION FOR SUMMARY JUDGMENT — #129 DEFENDANT GEICO'S MOTION FOR SUMMARY JUDGMENT — #138
I. INTRODUCTION
This uninsured/underinsured motorist claim arises out of a motor vehicle accident that occurred on February 3, 2006, in Waterbury, Connecticut. The relevant facts will be hereinafter set forth. The central or core issue raised by a motion for summary judgment filed by Safeco Insurance Company of Illinois (Safeco) and a similar motion filed by GEICO Casualty Company (GEICO) is: Should a timely filed uninsured (hereinafter referred to as "UM") motorist civil action brought by an insured pursuant to policy provisions under the heading "Uninsured Motorist/Underinsured Motorist Benefits" be deemed sufficient notice of a claim under that policy provision so as to trigger the tolling provisions of General Statutes Section 38a-336(g)(1) for the statutory limitation for claims for underinsured (hereinafter referred to as "UIM"). motorist coverage? More to the point, does the answer to that question depend upon the resolution by a trier of fact of genuine issues of material fact, thereby making summary judgment inappropriate?
That portion of the statute provides: "No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals." Emphasis added.
II. NATURE AND HISTORY OF THE PROCEEDINGS
A. The 2007 Action — CV07-5005084 — Becher v. We Rent Minivans, et al.
In order to comprehend the facts, circumstances and legal issues presented by the motions for summary judgment that are now before the court, a full and complete understanding of the storied history of the initial lawsuit prompted by the motor vehicle accident is appropriate and necessary. Becher commenced the above-captioned lawsuit on June 20, 2007, against We Rent Minivans, LLC (Minivans) and Martin Jones (Jones). In her initial complaint the plaintiff alleges that on February 3, 2006, she was a passenger in a motor vehicle that was struck in the rear by a motor vehicle operated by Jones that was leased to him by Minivans. She further alleged that as a result of the negligent operation of the vehicle by Jones she sustained injuries and other damages, some of which may be permanent and may require her to incur future medical expense. The complaint was brought in two counts, one count against each defendant. While the second count was based on typical automobile negligence allegations against Jones, the first count alleged that Minivans leased the vehicle operated by Jones to him and thereby gave him permission to operate the vehicle and allowed Jones to operate the vehicle without the insurance coverage mandated by law. On August 23, 2007, Minivans, through its attorney, who at that time had not appeared for Mr. Jones, filed a Motion To Strike the first count alleging that the so-called federal Graves amendment prohibited the imposition of liability on motor vehicle lessors as a matter of federal law and thereby abolished any such liability imposed by the state of Connecticut. On September 17, 2007, Judge Alvord granted that motion. On November 21, 2007, the plaintiff filed a three-count revised complaint (#111.50). Counts One and Two were filed against Minivans based upon claims of negligent entrustment and violation of Connecticut's Unfair Trade Practices Act (CUTPA), respectively. The plaintiff alleged that Jones rented the motor vehicle, a 2005 Ford Focus, from Minivans on January 25, 2006, however, at the time that the alleged tortfeasor leased said vehicle Minivans knew that he possessed no insurance, nor did he exhibit the financial responsibility required by Connecticut's mandatory auto liability insurance statutes. The CUTPA cause of action was based upon the underlying theory that Minivans issued a lease of the motor vehicle to a financially irresponsible person motivated solely by profit. The third count was a personal injury action against Jones based on a traditional theory of automobile negligence and mirrored the second count of the plaintiff's initial complaint. On December 2, 2008, Minivans filed a Motion To Strike Counts One and Two of the revised complaint. By memorandum of decision dated February 19, 2009 [ 47 Conn. L. Rptr. 254], Judge Brunetti granted Minivans' motion. As to the negligent entrustment count although the court agreed with the plaintiff that Jones and Minivans had a statutory duty to insure the leased motor vehicle, the plaintiff failed to allege any facts showing a causal connection between the breach of that duty and the plaintiff's injuries. As to the CUTPA count, the court ruled that the plaintiff failed to allege any relationship, consumer or otherwise, upon which such a claim could be made against Minivans as the only connection between the plaintiff and that corporate defendant was through Jones. On March 6, 2009, the plaintiff filed a Revised Complaint (#127), which appears to be the operative complaint in the 2007 action. Again, undaunted by the previous rulings, the plaintiff, in addition to the usual count against Mr. Jones, included a negligent entrustment and a CUTPA claim against Minivans. On March 20, 2009, Minivans, once again, filed its Motion To Strike (#128) each of the counts lodged against it, this time based upon the primary argument that the principle of the law of the case, per Judge Brunetti's memorandum, ought to foreclose the plaintiff from reasserting the negligent entrustment and CUTPA claims against Minivans. Although there is a note in the file assigning argument on the motion for the short calendar on April 27, 2009, the file does not reflect the issuance of any ruling on the motion. The motion to strike, therefore, remains unresolved at this time.
Although Minivans filed its appearance on August 16, 2007, Jones did not file an appearance until March 24, 2009. The same law firm represents both defendants.
As will be hereinafter addressed, the owner/operator of the vehicle in which the plaintiff was a passenger was Jessica Bock. GEICO was Bock's automobile insurance carrier while Safeco insured a motor vehicle owned by the plaintiff's brother, Josef Becher with whom the plaintiff resided. The plaintiff was a permitted driver under the Safeco policy.
See 49 USC Section 30106.
One year and two months later, on November 17, 2008, on motion by Minivans, Judge Upson entered judgment on that count, however, he permitted the filing by the plaintiff of a revised complaint.
General Statutes Sections 14-213b(a) provides, in pertinent part: "No owner of any private passenger motor vehicle . . . registered or required to be registered in this state may operate or permit the operation of such vehicle without the security required by section 38a-371 or with security insufficient to meet the minimum requirements of said section, or without any other security requirements imposed by law . . ."
It is noteworthy that on January 30, 2009, three weeks before Judge Brunetti's decision on the motion to strike in the 2007 case, the plaintiff commenced the 2009 action against Safeco, and GEICO.
Four days after filing the motion to strike, for the first time in nearly two years during which the 2007 action was pending, an appearance was filed for Mr. Jones by the same law firm that had represented Minivans from the inception of this action.
On January 21, 2010, Jones filed a Motion To Enforce Settlement Agreement (#132), wherein, inter-alia, the tortfeasor alleged that the parties had reached a settlement of $20,000 in exchange for a full release of both defendants and " Jones['s] insurer for this claim, Empire Fire and Marine Insurance Company." Emphasis added. Counsel for Minivans and Jones attached to the memorandum in support of the motion a letter dated November 5, 2009, from the plaintiff's attorney accepting the $20,000 offer as the " limits on the policy covering Martin Jones" and requesting the preparation of a release by the defendants' attorney. Emphasis added. Plaintiff's counsel closed the letter with, "I expect the motion to strike will not proceed." On that same day the defendants' attorney, as per request, provided a release of "all claims" to plaintiff's counsel. On February 10, 2010, the plaintiff filed her opposition (#133 #134) to the defendants' efforts to judicially enforce the alleged settlement agreement claiming that no settlement agreement had been reached in that the plaintiff objected to the release of "all entities." On February 16, 2010, Judge Sheedy refused to enforce the alleged settlement agreement without an opportunity to canvass the parties, whereupon on March 8, 2010, Jones filed a Motion To Reargue (#135), that prompted Judge Sheedy to mark the matter off the short calendar, suggest that the plaintiff reclaim the matter for argument and be prepared to present evidence. As of this date, the Motion To Enforce Settlement Agreement (#132) and the Motion To Strike remain unresolved!
B. The 2009 Action — The Present Lawsuit
On February 9, 2009, while the Motion To Strike was pending before Judge Brunetti in the 2007 case, the plaintiff filed her initial two-count complaint against GEICO and Safeco. In the first count the plaintiff alleged that GEICO insured Jessica Bock, who was the owner and operator of the vehicle, in which the plaintiff was a passenger on February 6, 2006, when said vehicle was rear-ended by that operated by Jones and leased to him by Minivans. The plaintiff alleged that Jones fled the scene and could not be located, and further that Minivans had confirmed that there was no liability insurance policy on the Jones vehicle. The plaintiff also asserted that Minivans has denied any liability based upon the federal Graves amendment. In the second count the plaintiff alleged that Safeco had sold an automobile liability policy to Josef Becher, the plaintiff's brother with whom the plaintiff resided, thus making the plaintiff a permitted driver entitled to coverage under her brother's policy. Based upon the allegations in the initial complaint against each insurer, there is no question that the plaintiff was making a claim pursuant to the uninsured motorist coverage to which she claimed entitlement under each of the referenced auto liability policies.
On March 30, 2009, GEICO filed its Answer (#105) and six special defenses. In addition to the typical special defenses filed by insurers in response to uninsured/underinsured motorist causes of action, GEICO alleged that the plaintiff had failed to exhaust all insurance policies applicable to all tortfeasors which was a condition precedent to coverage under the GEICO policy. GEICO disclosed that the coverage afforded by Bock's policy was limited to 20,000/40,000. On December 9, 2009, Safeco filed its Answer (#112) without asserting therein any special defenses.
On February 4, 2010, the plaintiff moved to cite in Minivans and Empire Fire and Marine Insurance Company (Empire), alleging that the claims against GEICO and Safeco may be based upon the underinsured coverage afforded by each of the policies rather than uninsured coverage. The plaintiff asserted that Empire may be liable under a policy that covered Jones' operation of the leased vehicle and that said coverage was not disclosed by way of the discovery conducted as part of the 2007 action. In fact, the plaintiff alleged in the motion that the existence of such coverage was " concealed" by Minivans and Empire resulting in an alleged " late notice" of the underinsured motorist claim to GEICO and Safeco. The plaintiff attached a twelve-count proposed amended complaint. On February 16, 2010, the motion was granted by Judge Sheedy. The Amended Complaint was filed, as served, on March 12, 2010 (#121). The operative twelve-count complaint is now lodged against all four current defendants: GEICO, Safeco, Minivans and Empire.
On May 27, 2010, Minivans and Empire filed a Request To Revise that amended complaint. Each of the ten requested revisions were objected to by the plaintiff, however, the plaintiff's objection was overruled by Judge Sheedy and the plaintiff's motion to "reargue" was denied. In meeting with counsel this court proposed and all agreed that for the purposes of the motions presently before this court that Amended Complaint (#121) is the operative complaint.
The plaintiff alleges the following facts, which comprise the first eighteen introductory paragraphs of the operative complaint. On February 3, 2006, Becher was a passenger in a vehicle owned and driven by Jessica Bock in Waterbury, Connecticut. Another vehicle, owned by Minivans and driven by Jones, collided with Bock's vehicle, which caused severe injury to Becher. Jones fled the scene of the accident. On November 14, 2007, Becher became aware that Minivans had an insurance policy with Empire, by way of Minivans' interrogatory responses; however, those responses did not disclose that Jones was an insured under the policy or that Jones' negligent driving was covered under the policy. In March of 2009, more than three years after the date of the collision and after the plaintiff filed its UM claims against Safeco and GEICO, Minivans disclosed to Becher that the Empire insurance policy provided liability coverage for Jones in the amount of $20,000.
In Count One, Becher states a claim for UM coverage pursuant to General Statutes Sec. 38-336 against GEICO, and alleges that GEICO provided automobile insurance to Bock, which was in effect on the date of the collision and afforded coverage to Bock and the occupants of her vehicle for bodily injury caused by uninsured or underinsured motorists. Becher alleges that there is a possibility that Empire may assert defenses that will cause Jones to be uninsured for the collision under the Empire policy, and therefore the plaintiff claims UM coverage under the Bock policy. She alleges that the GEICO policy requires it to provide coverage for Becher as an occupant of Bock's vehicle, and requires it to compensate her for personal injuries sustained due to the negligence of an uninsured driver. Becher further alleges that GEICO is statutorily and contractually bound to pay her for her personal injuries, that she demanded UM coverage, but GEICO has failed to make any payments.
In Count Two, Becher essentially asserts the same allegations as the first count but asserts the UM claim against Safeco under the Safeco policy. She also alleges that at the time of the collision, Safeco provided automobile insurance to Josef Becher, the plaintiff's brother, which was in effect at the time of the collision and afforded coverage to Becher for bodily injury caused by uninsured and underinsured motorists. The policy covered Josef Becher and members of the family that reside with him, which included the plaintiff. In Count Three, Becher states a claim for underinsured motorist (UIM) benefits against GEICO. She alleges that she asserted a claim for UM benefits under GEICO's policy on January 30, 2009, after Empire and Minivans's interrogatory responses stated that the policy did not cover Jones, that the civil action against GEICO was commenced within three years of the collision and that GEICO was notified of Becher's claim for benefits under section IV of the policy, which provides for UM and UIM coverage. Becher alleges that she has made a claim for UIM coverage for her injuries, GEICO is statutorily and contractually required to provide such coverage, but has failed to make any payments. In Count Four, Becher alleges the same facts and claims as above, but the UIM claim is against Safeco under the Safeco policy.
In March 2009, as previously discussed herein, Empire offered to settle for $20,000, the policy limit in return for a general release from Jones, Minivans and Empire, which the plaintiff alleges that she refused. See Amended Complaint dated February 4, 2010, Count Three, Paragraphs #24-26.
In Counts Five and Six, Becher appears to state common-law indemnification claims against Minivans and Empire, respectively, for their failure to disclose the liability coverage for Jones under the insurance policy, when they were aware of her negligence claims against Jones, until more than three years after the collision, which may result in late notice to Safeco and GEICO for coverage and ultimately a denial of coverage for the UM and UIM claims due to a defense of untimeliness. Counts Seven, Eight and Ten appear to state claims for negligent misrepresentation against Minivans and Empire. In Count Eight, Becher incorporates the same facts and allegations from the seventh count but adds that she justifiably relied on Minivans' omissions and statements. In Counts Nine and Twelve, Becher appears to state claims of intentional misrepresentation against Minivans and Empire. In count Eleven, Becher appears to state a claim for fraudulent concealment against Empire.
The plaintiff also alleges that she has been put on notice that Safeco and Geico intend to defend against her UM and UIM claims on the ground that she provided late notice to them of the claims, apparently to bolster her common-law indemnity theory of liability against Empire and Minivans.
It is unclear to this court what theory of liability the plaintiff is claiming in Counts Eight through Twelve. The court suggests that the plaintiff organize the complaint for clarity as there is a pending request to revise the amended complaint.
On March 26, 2010, Safeco filed an Answer to the amended complaint (#125) and asserted a special defense that, inter alia, Becher's UIM claim is barred because she failed to state that claim within three years of the collision as required by the cited portion of the uninsured/underinsured motorist statute. See Footnote #1. On the same day, GEICO filed its Answer to the amended complaint (#126) that asserted, among others, the same special defense.
On April 13, 2010, Safeco filed a Motion For Summary Judgment (#129), accompanied by a supporting memorandum which argues that the plaintiff's UIM claim is barred by the statute of limitations because she failed give written notice of the claim within three years of the accident and that notice via the filing of the initial complaint, based solely on a UM claim, was not sufficient for the purposes of a UIM claim, as the two claims arise from different facts and are therefore separate causes of action. As to the alternative UM claim advanced by the plaintiff, Safeco asserts that, in light of the disclosed insurance coverage by Empire, a UM claim does not exist. Safeco's memorandum was accompanied by several exhibits, including the aforementioned settlement correspondence from the 2007 case, the Safeco policy and several trial court cases. On July 14, 2010, Becher filed her oppositional memorandum (#133) that was accompanied by excerpts from a deposition, the motor vehicle accident investigative report and numerous trial court cases. On August 6, 2010, Safeco replied (#135) via its first of five supplementary memoranda, i.e., #139, 142, 145 and 148. On November 17, 2010, the plaintiff submitted a personal affidavit (#137), attesting to the fact that the subject automobile accident occurred between 4:00 and 5:00 PM on February 3, 2006.
#148 was an unsolicited submission by Safeco that was filed on July 6, 2011, nearly four months after the court heard oral argument on the motion. Counsel submitted for the court's consideration the recent appellate court opinion in Romprey v. Safeco Ins. Co., 129 Conn.App. 481 (2011). The court has reviewed that decision and finds it inapplicable to the issues presented in this case. In Romprey, as the appellate court states in Footnote #2: "There is no dispute that the tortfteasor had insurance coverage on her motor vehicle, and the plaintiffs alleged in pleadings, other than the complaint the payment to them of some or all of the tortfeasor's policy coverage amounts in a settlement." Here, the core of the factual dispute between the parties is whether or not there was auto liability coverage on the Minivans/Jones vehicle that would be applicable at the time of the accident which allegedly occurred on February 3, 2006, at 4:00 p.m.
On November 18, 2010, GEICO filed its Motion For Summary Judgment (#138) accompanied by a supportive memorandum and several exhibits, including the aforementioned settlement correspondence, the GEICO insurance policy and some trial court decisions. GEICO, in addition to the arguments offered by Safeco, argues that the plaintiff does not have a valid UM or UIM claim against it because Empire's policy limits are $20,000, which Empire tendered to Becher. Thus, GEICO's exposure to the plaintiff, at the most, would be $20,000, which, if that sum were collected from Empire, would set off and discharge any claim the plaintiff would have under the GEICO uninsured/underinsured coverage. On January 13, 2011, Becher filed a memorandum in opposition (#143). The court heard oral argument from counsel at the short calendar on March 14, 2011, and thereafter ordered and read a transcript of that argument.
After reviewing in great detail both the 2007 and 2009 files; after reading all of the memoranda submitted by counsel and many of the cases referred to therein; after reviewing the exhibits accompanying said memoranda; and after considering the oral arguments advanced by each of the parties; the court, for reasons articulated herein, will DENY each of the subject motions for summary judgment as there are genuine disputed issues of material fact which must be determined by a trier of fact.
III. SUMMARY JUDGMENT
"Practice Book Sec. 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 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." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54 (2010). "A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . In 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 him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Citation omitted; internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn.App. 781, 785-86, cert. denied, 283 Conn. 904 (2007). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute." Burns v. Hartford Hospital, 192 Conn. 451, 452 (1984).
"[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." (Internal quotation marks omitted.) Coss v. Steward, 126 Conn.App. 30, 40 (2011). "[W]hether the plaintiffs supplied the defendants with sufficient notice presents material issues of fact which render summary judgment inappropriate." Boulanger v. Old Lyme, 51 Conn.Sup. 636, 648 (2010), aff'd, 127 Conn.App. 572 (2011).
IV. SAFECO'S MOTION FOR SUMMARY JUDGMENT A. The Claims of the Parties CT Page 18357
Safeco argues that Becher's UIM claim is time-barred because she failed to bring suit and failed to provide written notice of the UIM claim within three years of the collision date. It argues that the lawsuit did not provide sufficient notice of the UIM claim because the original complaint only alleged a claim for UM benefits, not UIM benefits, and therefore Becher did not provide notice in writing of the UIM claim within three years. Safeco includes colorful language in its brief, such as a quote from Travelers Insurance Company v. Kulla, 216 Conn. 390, 398 (1990), a case well known to this court: "Designating the Lawlor car as the underinsured motor vehicle in this factual situation will no more change its essential character than calling a bull a cow will change its gender." In the alternative, Safeco argues that its motion must be granted with regard to the UIM claim because it was filed after the three-year period and does not relate back to the original complaint or the UM claim, as the "two claims arise from different facts and are separate causes of action."
Next, Safeco argues that its motion must be granted with regard to Becher's UM claim, Count Two, because liability coverage exists. It argues that the alternative UM claim is "inchoate" because there has not been a denial of coverage, and the plaintiff's allegations that Empire's policy may not be applicable is irrelevant because it has not yet come to pass. It relies on the motion to compel enforcement of the settlement agreement and its accompanying documents filed by Jones in the pending sister case, i.e., the 2007 case, as support for the fact that Empire's liability coverage must apply. Thus, Safeco argues, as liability coverage from Empire's policy applies, a UM claim is invalid. It notes that when Empire does, in fact, deny coverage, Becher may bring her UM action.
In response, Becher argues that timely notice was provided to Safeco regarding the UIM claim because the original complaint asserted a claim for benefits under Part C of the policy, which provides coverage for "Uninsured/Underinsured Motorist Benefits," which satisfies the tolling extension within the policy's three-year limitations period. She contends that the original complaint gave the necessary facts to apprise Safeco of the UM claim and the possibility of a UIM claim, and thus Safeco had actual notice of the UM claim, which should toll the limitations period. She also argues that Minivans has disclosed documents that show that Jones was not an authorized driver, which would be a basis to deny liability under the policy for the collision, and therefore there is a genuine issue of material fact whether there is insurance coverage on Jones's vehicle. Becher points to the exhibits submitted in support of her memorandum in opposition to Safeco's motion for summary judgment, which included the deposition testimony of Mark Hudson, Minivans' rental receipt for Jones that states "DO NOT RENT — EXPIRED CARD," and the police report. Hudson testified that the car Jones rented was due back on February 3, 2006, at 8:00 a.m. Becher avers that the collision was on February 3, 2006, at approximately 4:00 p.m., after the car was due to be returned. Thus, the plaintiff asserts that Empire may deny coverage because Jones ceased to be an authorized driver due to his failure to timely return the vehicle.
B. Applicable Law 1. Alternative Theories of Liability
A plaintiff may plead alternative theories of liability based upon the same facts. "The plaintiff may claim alternative relief based upon an alternative construction of the cause of action." Practice Book Sec. 10-25. "Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242 (1985).
An amended complaint will be treated as filed at the time of the original complaint if it relates back to the original complaint. Palazzo v. Delrose, 91 Conn.App. 222, 225, cert. denied, 276 Conn. (2005). "Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims." (Emphasis added. Internal quotation marks omitted.) Id. "[A] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Internal quotation marks omitted.) Sherman v. Ronco, supra, 294 Conn. 555. The amended complaint may assert different theories of liability so long as they are based upon the same facts as stated in the original complaint and do not require different evidence or witnesses to defend the amended claim. Id., 563.
2. Negotiations In An Attempt To Settle
It is an accepted principle in Connecticut that, "to promote settlements, evidence of settlement negotiations generally is inadmissible in later proceedings." Hayes v. Caspers, Ltd, 90 Conn.App. 781, 797, cert. denied, 276 Conn. 915 (2005). Section 4-8(a) of the Code of Evidence provides: "Evidence of an offer to compromise or settle a disputed claim is inadmissible on the issues of liability and the amount of the claim."
3. Connecticut's Uninsured/Underinsured Motorist Statute — General Statutes Sec. 38a-336
The purpose of uninsured and underinsured motorist insurance is "to place the insured in the same position as . . . the insured would have been had the [uninsured or underinsured] tortfeasor been fully insured . . . It is well established that the public policy derived from the uninsured motorist legislation is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Insurance companies are powerless to restrict the broad coverage mandated by the statute . . . The public policy embodied in our uninsured motorist legislation favors indemnification of accident victims unless they are responsible for the accident . . . Therefore, any limitation on the ability of an individual injured by an uninsured motorist to recover benefits for his injuries will have to bear close scrutiny." (Citation omitted; internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 607-08 (2001); see also Fuchs v. Allstate Ins. Co., 96 Conn.App. 284, 291 (2006).
The purpose of the tolling provision, applicable to an underinsured motorist claim in Sec. 38a-336(g)(1) of the statute (see footnote #1), is "to provide security to the insured without prejudicing an insurer's ability to respond to a dated claim." CT Page 18360 Tracy v. Allstate Ins. Co., 76 Conn.App. 329, 336 (2003), aff'd, 268 Conn. 281 (2004). In determining the sufficiency of notice for UIM benefits, when the policy "contemplates specific reference to a potential claim for underinsured motorist benefits and [the notice presented by the insured] references nothing more than the accident and a claim for property damage, medical bills and damages in general; [such notice] is not sufficient." Dorchinsky v. Windsor Ins. Co., 90 Conn.App. 557, 561 (2005).
C. Discussion 1. Genuine Issues of Material Fact Remain Concerning the UIM Claim
The express terms of the Safeco policy require that notice of a claim or suit must be brought within three years of the accident, thus the limitations period began to run on the date of the collision, February 3, 2006. Becher's UIM claim in the amended complaint is based upon the collision that occurred on February 3, 2006. The original complaint, which asserted claims for UM benefits against Safeco and GEICO, was filed within three years of the collision.
The purpose of the underinsured motorist coverage statute is to protect and make whole a person injured at the hands of an uninsured/underinsured motorist; it must be liberally construed, but the insurer must be timely notified. The purpose of the time limitation on bringing suit is "to promote justice by preventing surprises, protect defendants and courts from handling matters in which the search for the truth may be impaired by loss of evidence, to encourage plaintiffs to use reasonable and proper diligence in enforcing their rights, and prevent fraud." (Internal quotation marks omitted.) Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 599-600 (2010). Keeping these principles in mind, the court must determine whether the notice provided to Safeco in the original complaint properly apprised it of the UIM claim. The cases cited by Safeco on the issue of notice of UIM claims are distinguishable and not directly on point to the current factual scenario in which suit for UM benefits was timely commenced against the defendants. The cases cited by Safeco for the proposition that the plaintiff's notice must encompass the specific words "underinsured claim" are either distinguishable or are Superior Court cases that are persuasive, but not binding authority.
Safeco cites Tracy v. Allstate Ins. Co., supra, 76 Conn.App. 329, for the principle that the insurer must be notified within three years of UIM benefit claims. Tracy is distinguishable from the present case because the plaintiff in Tracy did not provide its insurer with any notice of a UM or UIM claim within three years of the collision, whereas Becher's original complaint was timely filed and notified the defendants of the UM claim and the underlying facts of the collision. Id., 331. Thus, it is not on point for the present issue of whether the notice that was timely provided was sufficient.
Another case cited by Safeco, Dorchinsky v. Windsor Ins. Co., supra, 90 Conn.App. 557, is also not on point. There, the plaintiff called the insurer immediately after the loss and advised of the accident, submitted the police report, repair estimate, and a letter indicating that she was going to make an insurance claim for the damage to her car and her personal injuries, however, sent the letter that advised of her claim for UIM benefits more than four years after the accident. Id., 560-61. The defendant-insurer relied on the fact that suit was not brought within three years to toll the limitation period within the policy. Id., 560. The trial court granted the insurer's motion for summary judgment, which the Appellate Court affirmed, because the notice of the plaintiff's UIM claim was not made in writing within three years of the accident. Id., 561. In the present case, Becher timely filed suit and Safeco was timely notified of Becher's UM claim, in writing, along with all the underlying facts that would give rise to the UIM claim; a fact finder could find that the original complaint provided Safeco with sufficient information, in writing, for the UIM claim. Therefore, Dorchinsky is not on point.
Similarly, Voris v. Middlesex Mutual Assurance Co., supra, 297 Conn. 601, also cited by Safeco, is distinguishable from the present facts. In Voris, the plaintiff contacted the insurer the day after the collision to report the accident, and believed that this notice was sufficient for a UIM claim, as that is what the insurance claim representative allegedly led him to believe. He made the official UIM claim more than three years after the date of the collision. The trial court granted the insurer's motion for summary judgment and noted that his belief was not a material issue to defeat summary judgment. Id., 601-02. The Supreme Court held that there is "no ambiguity in the time limit provision at issue" and refused to "accept good faith deviations from statutory time limits on underinsured motorist recovery . . ." CT Page 18362 Id., 595-96. The Court stated that to raise a genuine issue of material fact, he would have had to submit evidence relating to what led to the misunderstanding, such as what the insurer's employee actually said to him, which the plaintiff failed to do. Id., 602-03. In the present case, Safeco was timely notified of the underlying facts and the UM claim, and there is a question as to whether this notice was also sufficient for a UIM claim. In Voris, contrastingly, the plaintiff failed to give any type of specific notice of a UM or UIM claim until more than three years after the collision, which is not the factual scenario here.
Safeco also relied upon Jolly v. Broadspire Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5015078 (July 13, 2010, Keegan, J.), however, this case is distinguishable and not on point because that plaintiff brought suit for UIM benefits more than three years after the collision, but argued that the delay was because she was unaware she had a potential UIM claim until after the time period had run. The court granted the insurer's motion for summary judgment because, inter alia, it rejected the plaintiff's argument that the one-year extension applies to UIM claims. It is distinguishable because (1) the plaintiff did not provide any notice to the insurer within the three-year time period and (2) the limits of the subject policy and the underinsured driver were equal, and thus the underinsured provision would not apply, almost making the issue moot; whereas in the present case, Becher timely provided written notice to Safeco of the underlying facts of the collision and her UM claim. Jolly is therefore not on point or helpful.
The case of Cromblehome v. Allstate Ins. Co., Superior Court, judicial district of Hartford, Docket Nos. CV 00 0800688, CV 00 0598006 (February 24, 2003, Rittenband, J.T.R.) ( 34 Conn. L. Rptr. 176) is more on point. In that case, the plaintiff was involved in a car collision and notified Allstate of his injuries via a phone call. Allstate requested a copy of the police report, which the plaintiff immediately provided, but was advised that he first had to pursue any personal injury claims against the tortfeasor before making a claim under his policy. When the plaintiff filed a complaint for UIM benefits more than three years later, after he had exhausted the tortfeasor's limits, Allstate moved for summary judgment on the ground that the claim was time-barred because the plaintiff had failed to provide notice in writing. The court held that there was a genuine issue of material fact as to whether the information and statement by the plaintiff were sufficient notice to Allstate. The court noted that the police report and phone call put Allstate on notice of the facts concerning the accident, that the tortfeasor was liable, and thus Allstate "assumed or should have assumed that it was a claim for underinsured or uninsured benefits. Therefore, Allstate had actual notice."
In the present case, there is a genuine issue of material fact as to whether the original complaint provided sufficient notice to Safeco for the UIM claim. While Safeco presented evidence that it did not receive notice of the UIM claim within the three-year time period, Becher has presented sufficient evidence to raise a genuine issue of material fact, and it must be resolved by a fact finder. See Boulanger v. Old Lyme, supra, 51 Conn.Sup. 648. A fact finder could find that the information provided in the original complaint, which included the details of the accident and Minivans' denial of liability statement, were sufficient for the insurer to be aware that a UM and UIM claim were possible, similar to Cromblehome. It is undisputed that the original complaint, which asserted the UM claim, was filed timely; that is, within three years of collision date. As summary judgment is only appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute"; Burns v. Hartford Hospital, supra, 192 Conn. 452. Here, there is clearly a dispute whether Safeco was provided with proper notice of the UIM claim via a timely notice of a justifiably presumed UM claim, a dispute which, in this court's view, a trier of fact must resolve and which is inappropriate for resolution by summary judgment.
Notably, the plaintiff followed the advice provided in authorative treatise: to bring suit against all possible insurance carriers because the parties can "sort out the existence of coverage in the course of litigation." J. Berk Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (4th Ed. 2010) Sec. 1.5, p. 75 n. 75. With regard to underinsured benefits claims, it notes that "a claimant need not have actually exhausted the limits before commencing the claim or litigation process," and suggests that an action is proper when brought against both the tortfeasor and the UIM carriers. Id., Sec. 1.6, p. 96 n. 94. With regard to the type of notification that is necessary for UIM claims, this treatise notes cases where there may be a genuine issue of material fact of proper notice when there is a verbal notification of the loss, coupled with the insurer request of the police report. Id., Sec. 3.13.2 p. 367 n. 97. Here, the plaintiff brought suit against the tortfeasor and the UM/UIM carriers, just as the treatise suggests. She also notified the insurer in writing by way of the original complaint of the underlying facts of the collision and that she was asserting claims under the policy.
Additionally, the principles stated in Voris are well protected in the present case: (1) Justice is served, as the UIM claim is not stale and Safeco likely had sufficient notice of it, by way of the original complaint; (2) there is no concern about the loss of the evidence, and thus the search for the truth will not be impaired by a loss of evidence, as this case has been in litigation for the subject time limitations period; (3) the plaintiff did, indeed, use reasonable and proper diligence in bringing suit to enforce her rights under the insurance policies and (4) there is no concern of fraud in the present case. Voris v. Middlesex Mutual Assurance Co., supra, 297 Conn. 599-600.
With regard to Safeco's second argument, that the UIM claim does not relate back to the original complaint because it is premised on a different set of facts, this court finds that argument unpersuasive. The underlying facts upon which Becher bases her UIM claim are the same facts that she relied upon for the UM claim. The amended complaint's UIM claim relates back to the original complaint's UM claim because both claims are premised upon the accident that occurred on February 3, 2006, between Becher and Jones due to Jones's alleged negligence. This is a single group of facts that brought about an unlawful injury to the plaintiff. Becher's amended allegations concerning whether Empire's liability policy applies do not change the group of facts that brought about her injury, which were properly alleged in both the original and amended complaint, and upon which the UM as well as the alternative UIM claim rest. Becher's allegations in the amended complaint expand the original facts alleged because they give more information concerning Empire's acts and representations after suit was brought based upon the collision injury to Becher.
In Sherman v. Ronco, supra, 556-57, our Supreme Court, in addressing the relation back doctrine instructed: "To summarize, in determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence." See, e.g., Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 808-09, 945 A.2d 955 (2008) (trial court properly denied request to amend complaint where original complaint alleged various departures from applicable standard of care in performing plaintiff's back surgery, and proposed amended complaint alleged that defendant should not have performed surgery because proposed amendment would have required presentation of different evidence); see also Alswanger v. Smego, 257 Conn. 58, 67, 776 A.2d 444 (2001) (trial court properly concluded that allegations regarding informed consent in amended complaint did not relate back to original complaint where defendants would have been required "to gather different facts, evidence and witnesses to defend the amended claim" [internal quotation marks omitted]). This particular focus is guided by the policy reasons underlying the relation back doctrine — namely, ensuring that parties receive fair notice while at the same time allowing parties who have complied with the applicable statute of limitations the benefit of expanding upon existing claims. Our analysis, therefore, necessarily compares the allegations in the original complaint to those in the amended substitute complaint. Also see Milano v. GEICO, Superior Court, judicial district of Hartford, D.N. CV-01 0807227 September 13, 2004), Booth, J., wherein the court denied the plaintiff's request to amend the complaint because it added new allegations concerning "phantom vehicles." The court held that in a UM case governed by the insurance policy, the plaintiff could not plead new tortfeasors in order to create a new contract action. It is of note that the plaintiff in this case is not attempting to add new tortfeasors for the UIM claim, in contrast to the plaintiff in Milano.
The plaintiff's amended allegations do not present a new or different factual situation that would require different evidence to prove her claims for UM and UIM coverage. Becher would still have to produce the Empire policy and supporting documents from Empire to show either no insurance or a shortage of coverage. As the purpose of the relation back doctrine is to give the defendant fair notice of the claim, that purpose is met here because Safeco had fair notice of the accident and the claim for benefits under Part C of the policy, which requires notice of both UM and UIM claims within three years of the date of the collision. The facts relied upon by Becher in the UM and UIM claims are the same. Therefore, the UIM claim properly relates back to the original complaint. A genuine issue of material fact remains as to whether the original complaint provided sufficient notice to Safeco for the UIM claim. This issue is likewise inappropriate for resolution by summary judgment. Accordingly, Safeco's motion for summary judgment is denied with regard to Count Two.
2. There is a Genuine Issue of Material Fact as to Whether Empire's Liability Policy Applies
A genuine issue of material fact remains as to whether the Empire liability policy is applicable to the subject loss. Safeco argues that Empire's policy applies and Becher's UM claim is untenable; however, Becher has pleaded in her amended complaint and provided evidence that there is a dispute or question as to whether Empire's policy will apply or whether Empire may disclaim coverage on the basis that Jones was not an authorized driver due to an alleged late return of the leased vehicle. "When the tortfeasor's vehicle is a leased vehicle, the question of whether a policy covering that vehicle was applicable at the time of the accident . . . depends on whether the driver thereof was authorized to drive it under the terms of the lease that limit the identity of the drivers authorized to use the vehicle . . . If the driver was so authorized, he is in lawful possession of the vehicle pursuant to the lease contract terms and the policy covering the vehicle is applicable at the time of the accident and its limits must be exhausted as a precondition of recovery of conversion coverage benefits; if not, the policy is not applicable and its limits need not be exhausted." (Citations omitted; internal quotation marks omitted.) Todd v. Nationwide Mutual Ins. Co., 121 Conn.App. 597, 602-03, cert. denied, 297 Conn. 919 (2010). Thus, the unauthorized driver issue must be resolved before the court may determine whether the Empire policy applies.
Additionally, as one authoritative treatise explains, a UM claim is proper, even though there has not been a disclaimer of coverage. "[W]hen there is any question as to the availability of liability coverage for the tortfeasor, the authors strongly counsel that litigation be commenced against all potential . . . uninsured motorist carrier[s] at the same time" to prevent any defenses as to timeliness. J. Berk M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage, supra, Sec. 1.5, p. 75 n. 75. That treatise further provides that when the tortfeasor's insurance carrier has not definitively disclaimed coverage, "counsel is advised to commence an uninsured claim." Id., Sec. 3.13, p. 358 n. 84. Accordingly, it appears as though the plaintiff's UM claim is tenable, according to the logic put forth in the treatise because there is a question as to liability coverage under the Empire policy.
Although Safeco has presented evidence that the Empire policy applies, the only evidence that could be considered relevant, the motion to enforce the settlement agreement and its attached documents, is inadmissible. This is not sufficient evidence to demonstrate that there are no genuine issues of material fact because a purported settlement agreement is inadmissible as evidence to prove liability in Connecticut. See Hayes v. Caspers, Ltd., supra, 90 Conn.App. 797. Additionally, even if it were sufficient, the plaintiff has provided evidence that Empire's policy may not apply because Jones was not an authorized driver, which would raise a genuine issue of material fact. Accordingly, a genuine issue of material fact remains with regard to whether the Empire policy applies. Therefore, Safeco's motion for summary judgment is denied with regard to Count Four.
Safeco's evidence consisted of, inter alia, an affidavit from one of its employees, the subject Safeco policy, several cases, and the motion to enforce the settlement agreement from the sister case against Minivans and Jones.
V. GEICO'S MOTION FOR SUMMARY JUDGMENT A. The Claims of the Parties
GEICO moves for summary judgment on Counts One and Three of the amended complaint on the ground that (1) the subject loss is covered by the Empire insurance policy with $20,000/$40,000 policy limits, (2) Empire has tendered the $20,000 policy limits to Becher and (3) GEICO's UM and UIM policy limits are $20,000. In its memorandum, GEICO argues that Becher admitted in the amended complaint that she received the $20,000 policy limits from Empire, and points to the motion to enforce the settlement agreement and the letter that purports to accept the offer to settle signed by Becher's attorney, as evidence, which are attached to its memorandum. GEICO argues that, as the Empire policy applies and the limits of that policy are the same as the policy limits for GEICO's policy, it is entitled to judgment as a matter of law with regard to Becher's UM and UIM claims.
In addition, GEICO, as does Safeco, argues that Becher's UIM claim is time-barred. It contends that the original complaint simply made a claim for UM benefits when it was unclear whether Jones had insurance coverage, and Becher's amended complaint, which makes a claim for UIM benefits, is untimely because it was filed on February 4, 2010, nearly four years after the collision, which was on February 3, 2006. Pursuant to General Statutes 38a-336(g)(1), GEICO argues, Becher is barred from bringing a claim for UIM benefits more than three years from the date of the collision. Further, it argues that even if the UIM claim does relate back to the original complaint and is deemed timely, the UM claim in count one must be invalid because "the pleadings and submissions filed . . . clearly establish that on the date of the subject loss, the vehicle operated by [Jones] was insured by [Empire] with split limits of $20,000/$40,000." Additionally, there has not been a denial of coverage by Empire, and therefore, GEICO argues, Becher's UM claim is not valid because there was insurance coverage.
In response, Becher argues, as to Count One, that GEICO has failed to establish that there is no genuine issue of material fact as to whether Jones's vehicle was uninsured. She contends that a disclaimer of coverage is not necessary when a policy is not applicable at the time of the accident, and that a plaintiff may assert claims for both UM and UIM benefits before coverage is disclaimed. She argues that Minivans has disclosed documents that show that Jones was not an authorized driver, which would be a basis to deny liability under the policy for the collision, and therefore there is a genuine issue of material fact as to whether there is insurance coverage on Jones's vehicle. Becher points to the exhibits submitted in support of her memorandum in opposition to Safeco's motion for summary judgment, which included the deposition testimony of Mark Hudson, Minivans's rental receipt for Jones that states "DO NOT RENT — EXPIRED CARD," and the police report. Hudson testified that the car Jones rented was due back on February 3, 2006, at 8:00 a.m. Becher argues that, as the collision was on February 3, 2006 at approximately 4:00 p.m., after the car was due to be returned, Empire may deny coverage because Jones ceased to be an authorized driver due to his failure to return the vehicle timely.
As to Count Three, Becher argues that GEICO has failed to establish that there is no genuine issue of material fact as to whether Becher's claim for UIM benefits was untimely. She contends that she timely brought suit against GEICO, within three years of the collision, and that lawsuit provided timely notice of the UIM claim, or at least put GEICO on notice of a claim being made under that section of its policy, because she alleged in the original complaint a claim for benefits under section IV of GEICO's policy. Section IV of the policy provides coverage for "Uninsured Motorist and Underinsured Motorists Coverage," and allows the three-year time period for suit to be tolled when notice of the claim is given within the three years. She argues that the lawsuit, commenced within three years of the collision, provided adequate notice of the UIM claim, and thus it is timely. She points to GEICO's answer to count three, paragraph 29 of the amended complaint, in which it admitted that Becher was making a claim for benefits under section IV of its policy. She contends that this admission is a concession by GEICO that it was on notice of the general nature of the claim that would be made under section IV of its policy, which includes UIM claims. She argues that the notice that GEICO argues is required, a specific claim for UIM coverage within the three-year period, is not necessary because she made a claim under section IV of the policy. She asserts that courts have determined that insurance policy terms relating to only "uninsured" or "underinsured" benefits have been held to apply to both types of benefits. In this regard, the plaintiff cites Stankus v. Anthem Casualty Insurance Group (CV98-014-9116), Superior Court, judicial district of Waterbury, (March 1, 2001), which was authored by then judge and currently Chief Justice Rogers, in which the court held that even though the policy's arbitration clause referred to an "uninsured motor vehicle," a dispute involving an underinsured motor vehicle was nevertheless subject to resolution via the arbitration process provided for in the policy. Justice Rogers cited with approval the following: "the term `uninsured motorist' has come to include `underinsured motorist' by legislative fiat." See Flynn v. Great American Insurance Company, (CV-423090), judicial district of New Haven at New Haven, (May 4, 1999, Pittman, J.) [ 24 Conn. L. Rptr. 414]. Also see Hotkowshi v. Aetna Life and Casualty. Finally, Becher argues that GEICO has failed to demonstrate that there is no genuine issue of material fact that Empire's policy applies to the subject loss. Becher contends that GEICO failed to present any evidence to demonstrate Empire's policy, its limits, or payment to Becher. She argues that the settlement material submitted by GEICO is inadmissible and asserts that, even if a settlement agreement was reached, it is immaterial because, under Connecticut case law, the acceptance of settlement funds does not prove that liability insurance was in effect nor does it preclude a claim for UIM benefits.
In the alternative, Becher argues that the UIM claim should be deemed timely because any late notice to Geico did not cause harm or prejudice. Prejudice based on notice to an insurer is not the proper test in determining the timeliness of UIM claims under Connecticut law, and therefore this is not a valid argument by the plaintiff. Voris v. Middlesex Mutual Assurance Co., supra, 297 Conn. 599.
B. Discussion
Viewing the evidence in the light most favorable to the plaintiff, the court finds that GEICO has failed to sustain its burden to demonstrate that there are no genuine issues of material fact as to whether (1) Empire's policy liability limits have been tendered to the plaintiff; (2) the Empire policy's liability coverage applies to the subject loss; and (3) Becher's notice for UIM benefits was insufficient. First, it is permissible for plaintiffs to plead contradicting theories of liability in a complaint. Therefore, Becher's claims for both UM and UIM benefits in the complaint is permissible. Second, the amended complaint specifically states that Becher did not accept Empire's settlement offer. GEICO's claims that the complaint portrays the opposite are unavailing, as a simple review of the amended complaint demonstrates GEICO's error. Additionally, any evidence of settlement negotiations are inadmissible at trial, and accordingly, the court will not entertain the notion that the settlement negotiations between Becher and Empire, which are disputed, confer any showing that the liability portion of the Empire policy applies to this case. Accordingly, summary judgment is improper on those grounds.
A review of the amended complaint fails to show the purported statement that Becher accepted the settlement offer. The amended complaint does not allege that the plaintiff received the $20,000 policy limits from Empire; it alleges that Empire offered to settle for $20,000. The plaintiff also alleges that she refused to settle for the policy limits, that "no payment has been made," and that Empire has indicated that they may have a basis to deny liability under the policy. See Amended Complaint dated February 4, 2010, Counts One and Two, Paragraphs #21-22 and Count Three, Paragraphs #22-27.
With regard to Becher's notice for UIM benefits, the issue is whether the original complaint rendered sufficient notice to GEICO of her potential UIM claim. The court finds that this is a genuine issue of material fact, as this is a fact that would make a difference in the outcome of the case, as explained in section IV(C)(1). Therefore, this also is inappropriate for summary judgment. Accordingly, GEICO's motion for summary judgment is denied.
V. CONCLUSION AND ORDER
At the short calendar on March 14, 2011, during the oral argument on the motions for summary judgment filed by Safeco and GEICO, this court inquired of counsel as to what the outcome would be if the core issue raised by the two insurers were presented to the "average layperson." This court at that time surmised that the reaction would probably be that such an individual would not care whether it was an uninsured or underinsured motorist claim asserting that each of the insurers knew about the accident and received appropriate and timely notice of all the facts necessary to enable them to thoroughly investigate the accident which occurred on February 3, 2006. Whether the claim is based on an uninsured motorist or an underinsured motorist theory the underlying facts have not changed. It's the same accident on the same day involving the same parties with the same potential witnesses. Each of the companies had plenty of time to investigate the accident, to locate the witnesses and find out all they needed to know about the claim being made by the plaintiff. Whether one refers to that claim as an uninsured or underinsured motorist claim is of no moment to that layperson as he/she would assert that the plaintiff under the public policy of this state is entitled to the protection of the coverage that is claimed. Why? That layperson would answer that she was innocent and she was hit and injured by a tortfeasor, who did not have sufficient insurance to fairly compensate her for her injuries. That layperson would argue that Connecticut's public policy should trump the technical legal arguments advanced by Safeco and GEICO that "a cow is not a bull!" This court agrees. Here the type of animal cannot be distinguished because neither Safeco nor GEICO has submitted the appropriate evidence to properly demonstrate whether this is a cow or a bull, i.e., an uninsured or an underinsured motorist claim; at this point, the court is dealing with a four-legged bovine animal of unspecified gender and, as such, without further factual examination, summary judgment is not appropriate.
Based upon the foregoing, the Motion For Summary Judgment filed by Safeco (#129) and that (#138) filed by GEICO are DENIED.