Opinion
FBTCV146045928
11-28-2016
Kevin Benitez v. Gregory T. Macintyre et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #123
Richard E. Arnold, Judge.
This is an underinsured motorist benefits claim filed by the plaintiff against the defendant Nationwide Mutual Insurance Company (" Nationwide"). Nationwide has moved for summary judgment on the grounds that the plaintiff has not exhausted all available coverage under the limits of all other liability insurance and bonds that apply, as required under the terms of Nationwide's policy and pursuant to General Statutes § 38a-336(b). Nationwide's motion and memorandum of law are dated April 29, 2016. The plaintiff has filed an objection dated July 11, 2016. Nationwide then filed a reply to the plaintiff's objection, and the plaintiff then filed a supplemental memorandum of law in response. The parties have submitted other documentation in support of their respective arguments, including, but not limited to, a copy of the subject insurance policy and a copy of a police accident report for the underlying incident. Oral argument was held on August 1, 2016.
The plaintiff has settled his claims against Gregory T. Macintyre and Gary Macintyre.
I
Factual Background and Claims
This matter involves a motor vehicle accident which occurred on October 24, 2012, in Norwalk, Connecticut. The plaintiff was operating his vehicle when the defendant tortfeasor, Gregory T. Macintyre, while operating a vehicle owned by his father Gary Macintyre, allegedly failed to obey a red light and struck the plaintiff's vehicle. The plaintiff's complaint alleges numerous allegations that Gregory Macintyre was negligent, including that he was driving while intoxicated in violation of General Statutes § 14-227a.
The plaintiff's claim against Nationwide is based on an insurance policy issued to the plaintiff and his wife, which provides that " an underinsured motor vehicle is one for which bodily injury liability coverage or bonds are in effect; however, their total amount is less than the limits of this coverage provided by this policy." The Nationwide policy provides for Underinsured Motorist Coverage Bodily injury limits of $300,000 each person and $300,000 each occurrence. The policy further provides " [n]o payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments."
Subsequent to filing this lawsuit, the plaintiff settled his matter against the tortfeasor, Gregory T. Macintyre, and the owner of the vehicle, Gary Macintyre. During written discovery prior to the settlement, it was disclosed that the Macintyre insurance coverage included a personal automobile policy from Middlesex Mutual Assurance Company with coverage limits in the amount of $250,000/$500,000, as well as an additional personal liability umbrella policy issued by Middle Oak in the amount of $2,000,000 with $250 retention. In his settlement with the tortfeasor operator and vehicle owner the plaintiff received $250,000 by way of the acceptance of the plaintiff's offer to compromise. The defendant, Nationwide, now argues that the plaintiff has not exhausted the limits of the available insurance coverages, which actually totaled $2,250,000. Therefore, according to Nationwide, the plaintiff does not have a valid underinsurance claim.
The plaintiff, in objecting to summary judgment argues that " excess" or " umbrella" policies are not automobile liability policies, and, therefore, payments made under those types of policies may not be considered for purposes of determining whether underinsured motorist coverage is available. The plaintiff also argues that the Macintyre umbrella policy issued by Middle Oak lists the father Gary Macintyre as the insured, but not his tortfeasor son, Gregory T. Macintyre. While Gregory Macintyre might have been eligible for coverage, as a relative living with Gary Macintyre, pursuant to the terms of the policy, Gergory listed his address as 1816 Poplar Avenue, Apt. 24, Memphis, Tennessee. This address differs from the address of his father, the policyholder, which is 59 Red Bridge Road Ludlow, Vermont. The plaintiff argues that as the tortfeasor did not live at his father's address, Gregory T. Macintyre is not a covered person under the terms of the Middle Oak umbrella policy.
The police report for the accident of October 24, 2012, lists both Gregory T. Macintyre and Gary Macintyre as residing at 157 Heather Dr., New Canaan, Connecticut. The plaintiff's Amended Complaint dated March 21, 2016, states that " Gregory T. Macintyre and Gary Mcintrye, were at all times herein mentioned, residents of the Town of New Canaan, County of Fairfield and State of Connecticut."
The plaintiff additionally argues that the provisions of the Middle Oak policy state, " We will not pay for or defend any 'personal injury' claims arising out of any covered person intentionally breaking any law." The facts arising from the subject motor vehicle accident indicate that Gregory T. Macintyre operated his father's vehicle while intoxicated and was arrested for a violation of General Statutes § 14-227a. Gregory Macintyre stated to the investigating Norwalk Police Officer that prior to the accident he took six 30 mg. Tablets of Xanax and drank a full bottle of vodka. It is the plaintiff's position that due to Gregory's behavior in becoming voluntarily intoxicated and then operating a motor vehicle while intoxicated, he " intentionally" was breaking the law. Therefore, even if he was a covered person under the terms of the Middle Oak umbrella policy, Middle Oak was not obligated to defend or pay any claim as a result of personal injuries sustained by the plaintiff in the October 24, 2012 accident.
Gregory Macintyre was also charged with Failure to Obey a Traffic Signal, General Statutes § 14-299. Macintyre applied for the Pretrial Alcohol Education Program pursuant to General Statutes § 14-227a(j).
This statement is included in the police accident report copy submitted to the court for review.
II
Standard of Law
" Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing. such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
" The fundamental purpose of summary judgment is preventing unnecessary trials. If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law." Stuart v. Freiberg, 316 Conn. 809, 822-23, 116 A.3d 1195 (2015) " To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counter-evidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action." Id. See, e.g., Robinson v. Cianfarani, 314 Conn. 521, 524-25, 107 A.3d 375 (2014) (" [a] material fact . . . [is] a fact which will make a difference in the result of the case"); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 6, 357 A.2d 484 (1975) (test for granting summary judgment " is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts"); see also Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013) (" [w]hen 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" [internal quotation. marks omitted]).
" If a defendant's well supported motion for summary judgment shows that there is no genuine factual dispute as to multiple essential elements of a plaintiff's cause of action, such that none of them reasonably could be resolved in the plaintiff's favor at trial, the viability of that plaintiff's case is not improved if he only responds with sufficient counter-evidence to call some of those essential elements back into question. Put differently, by raising a genuine issue of fact as to only some of the essential elements under attack, the plaintiff has not altered the potential outcome of his case." Stuart v. Freiberg, 316 Conn. supra, 809, 823-24. " It logically follows that, in evaluating a defendant's motion for summary judgment, a trial court's task does not necessarily end upon its finding that a genuine factual dispute exists as to one or some essential elements of a plaintiff's cause of action. If a defendant has substantively addressed additional essential elements in support of his motion, so too should the trial court in determining whether summary judgment is appropriate." Id. Issues of insurance coverage and contractual disputes are particularly appropriate for summary judgment because the meaning of the insurance contract presents questions of law unsuitable for jury resolution. See, e.g., Excel Logistics v. Maryland Casualty Co., 40 Conn.App. 415, 671 A.2d408 (1996); Heyman Associates v. Ins. Co. of Pennsylvania, 231 Conn. 756, 653 A.2d 122 (1995); Sylvester v. United States Automobile Association Casualty Ins., 42 Conn.App. 219, 678 A.2d 1005 (1996), cert. granted, 239 Conn. 916, 682 A.2d 1014 (1996).
III
Discussion
The Nationwide policy states " [n]o payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments." Nationwide argues that this language is consistent with General Statutes § 38a-336(b), and it applies to policies with or without conversion coverage. General Statues § 38a-336(b) reads as follows:
(b) An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage. In no event shall there be any reduction of uninsured or underinsured motorist coverage limits or benefits payable (1) for amounts received by the insured for Social Security disability benefits paid or payable pursuant to the Social Security Act, 42 U.S.C. Section 301, et seq.; or (2) with respect to an automobile liability insurance policy issued or renewed on or after October 1, 2015, (A) for amounts paid by or on behalf of any tortfeasor for bodily injury to anyone other than individuals insured under the policy against which the claim is made, or (B) for amounts paid by or on behalf of any tortfeasor for property damage. The limitation on the total amount of recovery from all policies shall not apply to underinsured motorist conversion coverage purchased pursuant to section 38a-336a.
Nationwide counters the plaintiff's argument that Gregory Macintyre was not a relative residing in his father's household, or that he is not named insured by pointing out that the plaintiff's own return of service in this matter indicates that both Gregory Macintyre and his father, Gary Macintyre lived at the same address in New Canaan, Connecticut at the time of service of process, and both Gregory and his father have the same address in the unredacted police report for the subject incident. Regarding the plaintiff's argument that Gregory would not be covered under the Middle Oak umbrella policy because Gregory " intentionally" broke the law, Nationwide notes that the Macintyre defendants listed the umbrella policy coverage in their sworn discovery responses, and indicated that no disclaimers of coverage had been filed by Middle Oak, to date. Nationwide argues that whether Middle Oak would have disclaimed coverage if presented with a claim by the plaintiff is pure speculation by the plaintiff.
A copy of the unredacted police report was provided to the court by the plaintiff.
" It is frequently stated in Connecticut's case law that, pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Citations omitted; internal quotation marks omitted.) Martin v. Westport, 108 Conn.App. 710, 721-22, 950 A.2d 19(2008).
The question then is whether there is sufficient proof of a material issue of fact for the purpose of prevailing on a motion for summary judgment. Generally, in seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. " [T]he 'genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Emphasis added; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
While the parties are not in dispute as to the existence of the Middle Oak umbrella liability policy, the plaintiff has not established a genuine issue of material fact, as to whether or not the defendant, Gregory Macintyre, was a covered person or whether or not the underlying facts of the accident would have resulted in Middle Oak refusing coverage based upon an " intentional" violation of the law. While the Macintyre defendants disclosed to the plaintiff the existence of the Middle Oak policy prior to the plaintiff's settlement with the Macintyre defendants, the plaintiff has not established that he even made a claim against the Middle Oak umbrella policy. Thus, it is pure speculation at this point as to whether or not Middle Oak would decline coverage based on the reasons set forth in the plaintiff's argument. " On summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) Id., 558, 791 A.2d 489.
In resolving this motion for summary judgment, the main issue to be determined by the court is whether amounts available under Gary Macintyre's excess or umbrella policy with Middle Oak are to be included in determination of whether underinsured motorist benefits are available to the plaintiff from the defendant Nationwide.
The plaintiff asserts that excess or umbrella policies are not automobile liability policies, as such, and payments made under that type of policy may not be considered for purposes of determining whether underinsured motorist coverage is available. The plaintiff cites Bond v. General Acc. Ins. Co. of America, Superior Court, No. 538646. (Sept. 4, 1998, Handy, J.) 23 Conn.L.Rptr. 181, (WL 63844223) in support of his argument. In Bond the court (Handy, J.) held that, although umbrella coverage extended liability protection to an operator of a motor vehicle, that coverage was not considered as to whether a vehicle was " underinsured: because " umbrella coverage" was not " automobile" liability coverage. " Pursuant to statute and case law, only automobile liability bonds and policies constitute " bodily injury liability bonds or insurance policies applicable at the time of the accident." The tortfeasor's policy is an automobile liability policy." Id. The Bond court noted that an umbrella policy is a general liability policy, and as such, is not " specifically an automobile liability policy" Id. Thus, the umbrella policy is not subject to the legislative mandate of General Statutes 38a-336 which provides that " [e]ach automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . ." Id. " Nor is the umbrella policy subject to provisions set forth by the insurance commission." Id. " General Statutes § 38a-334(a) provides, '[t]he Insurance Commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies . . .'" Id. " Connecticut Regulations § 38a-334-5 provides, 'an insurer shall . . . pay [its insured's] . . . legally obligated . . . damages because of bodily injury or property damage caused by accident and arising out of the ownership, maintenance or use of a motor vehicle . . .'" Id.; see, however, Schilling v. Safeco Ins. Co. of Illinois, Superior Court, Judicial District of Stamford-Norwalk No. CV000181267. (March 13, 2002, Lewis, J.) 31 Conn.L.Rptr. 513, (holding that amounts paid under tortfeasor's excess or umbrella policies are to be included in determination of whether underinsured motorist benefits are available).
The Bond court in determining that only automobile liability bonds and policies constitute bodily injury liability bonds or insurance policies applicable at the time of the accident relied on American Universal Insurance Co. v. DelGreco, 205 Conn. 178, 195, 530 A.2d 171 (1987). " In American Universal Insurance Co., after his decedent was killed in an auto accident, the defendant administrator pursued claims against the tortfeasor driver and, pursuant to the Dram Shop Act, 5 against the restaurant which served alcohol to the intoxicated tortfeasor. Thereafter, the defendant administrator brought a claim for the underinsured motorist benefits provided by the automobile policy issued to its decedent by the plaintiff insurer. The insurer declined to pay its insured under a policy which provided $40,000 in underinsurance benefits, reasoning that it was not only entitled to set off the $20,000 paid by Allstate, the tortfeasor's insurer, but also was entitled to set off the $20,000 under the dram shop policy. In order to discern whether the dram shop payment could be set off against underinsurance benefits, the court sought to " ascertain the intent of the legislature by examining the language of the statute, its legislative history and the purpose it [was meant] to serve." Bond v. General Acc. Ins. Co. of America, supra, citing, American Universal Insurance Co. v. DelGreco, supra, 205 Conn. 193.
The court in American Universal, supra, acknowledged that General Statutes § 38-175c(b)(1) (now § 38a-336(a)(2)(b)), which clearly defined that an insurer's duty to pay underinsurance is triggered when " all bodily injury liability bonds or insurance policies applicable . . . are exhausted, " did not define what category of policy constituted an " applicable policy." Id., 194. Judge Handy noted that the American Universal court observed, however, that § 38-175c(b)(2) (now § 38a-336(e)) employed the same phrase to refer to the automobile liability policies exclusively: an underinsured motor vehicle is a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which the claim is made. Bond v. General Acc. Ins. Co. of America, supra, citing American Universal, supra, 205 Conn. 194. The court concluded in American Universal that it seemed " logical and rational" to construe the reference to " bodily injury liability bonds and insurance policies" in § 38-175c(b)(1) (now § 38a-336(a)(2)(b)) as referring to automobile policies. Id., 193. Accordingly, the American Universal court concluded that the plaintiff's insurer could not set off monies which its insured received pursuant to a dram shop policy. " We hold therefore that the trial court was correct in finding that General Statutes § 38-175c and § 38-175a-6(d)(1) of the regulations of Connecticut state agencies do not allow an insurer to reduce its liability for underinsured motorist coverage by an amount of money received by the insured pursuant to a dram shop policy." Id., 198.
The court has reviewed the cases cited herein, as well as Ciarelli v. Commercial Union Ins. Co., 234 Conn. 807, 811, 663 A.2d 377 (1995); Buell v. American Universal Insurance Company, 224 Conn. 766, 773-75, 621 A.2d 262 (1993); Fahey v. Safeco Ins. Co. of America, 49 Conn.App. 306, 309-12, 714 A.2d 686 (1998); Lebish v. CNA Ins., Superior Court, No. CV 970162357S, (Oct. 9, 1998, Dean, J.) (1998 WL 738015). Neither the plaintiff, nor the defendant has provided the court with a definitive decision by our Supreme Court or Appellate Court with a factual scenario similar to the present action that determines that the limits of a tortfeasor's umbrella policy liability coverage must be exhausted before an injured plaintiff is entitled to claim underinsured motorists benefits from his own insurance company. The court is inclined to follow the reasoning set forth in Judge Handy's decision in Bond v. General Acc. Ins. Co. of America, Superior Court, No. 538646. (Sept. 4, 1998, Handy, J.) 23 Conn.L.Rptr. 181, (WL 63844223). Therefore, the motion for summary judgment is denied.