Opinion
No. CV02-0175109S
August 31, 2006
MEMORANDUM OF DECISION
This matter came before the court on July 10, 2006 on the defendant's motion for summary judgment on the ground that the plaintiff's failure to comply with the requirements of General Statutes § 38a-845 et seq. The court, after reviewing the briefs of the parties and having considered the arguments of counsel, finds that there are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law.
FACTS
On October 9, 2002, the plaintiff, Laura Bierce, filed a complaint against the defendant, Michele Buscarello for injuries and losses that the plaintiff allegedly suffered as a result of an automobile crash. The plaintiff alleges that on October 13, 2000, she was a passenger in a car driven by Lindsey Fahmi, and owned by Maurad Fahmi (the apportionment defendants), when it was struck by a vehicle driven by the defendant. In her complaint, the plaintiff alleges that the defendant's negligent driving caused the accident.
The defendant, at the time of the accident, was insured by Reliance Insurance Company. (Defendants' memorandum, Exh. A.) On October 3, 2001, Reliance was declared insolvent by the Commonwealth Court of Pennsylvania, and ordered liquidated. (Defendants' memorandum, Exh. B.) As soon as this action was commenced, the plaintiff was notified that Reliance had been declared insolvent. (A defendant's memorandum Exh. C letter from Vivian Bena to Attorney William Bloss dated October 31, 2002).
On April 7, 2003, the defendant filed an apportionment complaint against the apportionment defendants. On April 1, 2005, the defendant filed requests for admissions directed to the plaintiff, to which the plaintiff filed responses on April 29, 2005. On June 8, 2006, the defendant filed a motion for summary judgment accompanied by a supporting memorandum. The defendant submitted the following exhibits with her memorandum: (A) an unauthenticated copy of the defendant's insurance policy; (B) an unauthenticated copy of the order of liquidation of Reliance Insurance Company (Reliance); (C) an unauthenticated copy of a letter from the Connecticut Insurance Guaranty Association (association), which assumed the defense of the case because of Reliance's insolvency, to the plaintiff's attorney giving notification of Reliance's bankruptcy and outlining how to contact the association; (D) a copy of the apportionment defendant's answers to the plaintiff's interrogatories, including exhibits; and (E) an unauthenticated copy of the police report of the accident. On July 7, 2006, the plaintiff filed a memorandum in opposition to the defendant's motion.
"Connecticut Insurance Guaranty Association (CIGA), is a nonprofit unincorporated legal entity created pursuant to General Statutes § 38-276 for the purpose of providing a resource for persons insured by or having claims against policies issued by an insurance company that has become insolvent." Connecticut Ins. Guaranty Assn. v. Raymark Corp., 215 Conn. 224, 225, 575 A.2d 224 (1990).
Although the defendant submitted unauthenticated copies of various documents, because the plaintiff did not object to these submissions the court can properly consider them. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006) (in ruling on a motion for summary judgment courts can consider uncertified evidence where the opposing party does not object to such evidence).
DISCUSSION
"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." (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 463-64, 899 A.2d 563 (2006). "[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "A material fact has been defined . . . as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "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). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
The defendant argues that since the plaintiff had knowledge of Reliance's insolvency and that because her insurance carrier is insolvent, the plaintiff must pursue her claims against the apportionment defendants' insurance company before she can seek to recover from the defendant or the association. According to the defendant, she is entitled to summary judgment because, by failing to seek recovery from the apportionment defendants' insurance company, the plaintiff did not comply with the exhaustion requirement of General Statutes § 38a-845. That section provides in relevant part: "Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under sections 38a-836 to 38a-853, inclusive, shall exhaust first his rights under such policy . . ." General Statutes § 38a-845(1). The defendant contends that, pursuant to § 38a-845(1), the plaintiff is required to exhaust all rights available to her under the apportionment defendant's uninsured motorist coverage prior to bringing a claim against the association. The defendant argues that the plaintiff's failure to seek recovery from the apportionment defendants, or their insurance carrier, means that the plaintiff has not exhausted all other rights under available insurance policies.
"If any person insured for uninsured and underinsured motorist coverage is an occupant of an owned vehicle, the uninsured and underinsured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available." General Statutes § 38a-336(d). Thus, as a passenger, the driver's uninsured motorist coverage was the only uninsured motorist coverage available to the plaintiff.
The plaintiff counters that summary judgment is not appropriate because her claim is not barred by the exhaustion provision of § 38a-845. She argues that her failure to pursue claims against the apportionment defendants' uninsured motorist coverage does not preclude her from pursuing her claim against the defendant directly or through the association. According to the plaintiff, the proper remedy would be to allow her claim to go to trial, and then to set off the amount of any damages awarded by the full amount of the uninsured motorist policy.
In Robinson v. Gailno, 275 Conn. 290, 880 A.2d 127 (2005), the seminal case regarding the interpretation of § 38a-845, the Supreme Court outlined when the statute permits a plaintiff to seek recovery from the association. In Robinson, the plaintiff, who was involved in an accident with a driver whose insurance company had become insolvent, pursued a claim against her own insurance company, but settled for less than the full amount of her uninsured motorist coverage. Robinson v. Gailno, supra, 275 Conn. 294. The plaintiff then pursued a claim against the association. Id. The court engaged in a lengthy analysis of § 38a-845, which included interpretation of the meaning of the terms "exhaust" and "rights"; as well as a review of the purpose and legislative history of the statute and an analysis of other states' interpretations of similar statutes. Id., 298-304. The court held that "a claimant who has unsuccessfully attempted to obtain the full coverage limits of her own uninsured motorist policy has satisfied § 38a-845(1) and, therefore, may bring an action to collect from the tortfeaser, either personally or through the association, with any recovery . . . reduced by the full amount of those policy limits." (Emphasis added.) Robinson v. Gailno, supra, 293.
The determination of whether the defendant is entitled to summary judgment in this case involves two issues. First, the court must resolve the issue of whether the term "shall, "as used in § 38a-845(1), mandates that the plaintiff exhaust all available insurance before pursuing a claim against the association. Second, if the exhaustion requirement of § 38a-845(1) is mandatory, the court must determine whether the plaintiff has satisfied this requirement.
It is a "fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature." (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 436, 857 A.2d 808, cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004). "In determining whether the use of the word `shall' is mandatory or directory, the test is whether the prescribed mode of action is of the essence of the thing to be accomplished . . . That test must be applied with reference to the purpose of the statute." (Internal quotation marks omitted.) Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 760, 699 A.2d 81 (1997). "Absent an indication to the contrary, the legislature's choice of the mandatory term `shall' rather than the permissive term `may' indicates that the legislative directive is mandatory. See Cantoni v. Xerox Corp., 251 Conn. 153, 165, 740 A.2d 796 (1999); see also Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986) (legislatures' use of `shall' connotes that performance of statutory requirements is mandatory rather than permissive)." Bailey v. State, 65 Conn.App. 592, 604, 783 A.2d 491 (2001). The purpose of the association is to provide "a limited form of protection for policyholders and claimants in the event of insurer insolvency." Robinson v. Gailno, supra, 275 Conn. 299. Requiring the plaintiff to attempt recovery from available insurance before seeking recovery from the association "protects funds of the association as a guarantor of last resort . . ." Id., 307. The prescribed mode of action in § 38a-845(1), therefore, is the essence of the thing to be accomplished and the statute contains no indication to the contrary. Further, as the court stated in Robinson, before the plaintiff may pursue a claim against the association, she must first pursue claims against all other available insurance in order to satisfy the requirements of § 38a-845(1). Accordingly, "shall," as used in § 38a-845(1) imposes a mandatory requirement.
Next the court must determine whether the plaintiff has satisfied this requirement. "[A] claimant satisfies the exhaustion requirement of § 38a-845(1) by pursing coverage under her own uninsured motorist policy prior to attempting to collect either from the guaranty fund or the tortfeaser personally." (Emphasis added.) Robinson v. Gailno, supra, 275 Conn. 306. In her responses to the defendant's requests for admissions, the plaintiff admitted that she did not submit a claim against the apportionment defendant's insurance carrier. "A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment." (Internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).
Although the defendant refers to her request for admissions that was filed on April 29, 2005, the defendant erroneously attached a copy of a different document as exhibit D to her memorandum. Nevertheless, the court takes judicial notice of the facts contained in the correct document, to the extent that the document contains any relevant admission of the plaintiff, as the court file contains a copy of that document. Docket item number 115; see In re Jeisean M., 270 Conn. 382, 852 A.2d 643 (2004) ("[t]rial courts may take judicial notice of facts contained in the court file").
In her opposition to the motion for summary judgment, the plaintiff did not submit any evidence to contest the evidence presented by the defendant demonstrating that she failed to submit a claim against the apportionment defendants' insurance carrier. Moreover, in her memorandum of law in opposition, the plaintiff admitted that she did not file a claim with the apportionment defendants' insurance company, stating: "In the instant matter, the plaintiff did not present a claim for uninsured motorist coverage." The plaintiff also did not argue that there was any justification for her failure to file such a claim. Thus, no genuine issue of material fact exists as to whether the plaintiff attempted to recover from the apportionment defendants' uninsured motorist policy.
Although the plaintiff correctly notes that, under Robinson v. Gailno, supra, 275 Conn. 293, a plaintiff need not recover the entire amount of available insurance coverage in order to seek recovery from the association, and argues that the proper remedy is to offset any recovery by the uninsured motorist policy limit, she has not produced any legal authority, and research reveals none, to support the proposition that a plaintiff may pursue a claim against the association prior to exhausting her rights under other insurance policies. According to the court in Robinson, the exhaustion requirement of § 38a-845(1) is satisfied when a plaintiff attempts to recover from available insurance before attempting to recover from the association. (Emphasis added.) Robinson v. Gailno, supra, 275 Conn. 306. Although the amount recovered from the available insurance policies is immaterial, because any recovery from the association must be reduced by the full amount of the policy limits, the plaintiff is required to pursue any such claims prior to pursuing a claim against the association. In this case, the undisputed evidence demonstrates that she did not do so. To allow the plaintiff to simply sit back, do nothing and say okay I will accept as a set off the entire amount of the apportionment defendant's uninsured motor vehicle policy would in this court's opinion be contrary to the purpose of the § 38a-845. If this were the case, the statute as written would serve no purpose and only would need to read that any judgment obtained by a plaintiff in this type of situation shall be reduced by the amount of any other insurance available. As written § 38a-845 mandates the plaintiff to take some action whether it is successful or not. In Naik v. Stine, CV 02-0393295 Judicial District of Fairfield at Bridgeport, 2005 CT.Sup. 14269, 40 Conn. L. Rptr. 250 (Nov. 10, 2005) Hiller, J., a Superior court decision issued subsequent to Robinson the court found that the exhaustion requirement of § 38a-845 had been met when the plaintiff in that case brought an action against the uninsured policy, even though that action was dismissed due to a failure to bring the action within the statute of limitations. The plaintiff in Naik at least attempted to bring an action, here the plaintiff admits it did not even attempt to pursue the uninsured coverage.
The question then becomes what is the remedy. The statute itself is silent about what should occur when the plaintiff fails to exhaust her remedies. Does the failure to even make an attempt to collect from the uninsured carrier require the court to enter judgment against the plaintiff. The court finds that the statute and case law require the plaintiff to at least make an attempt to pursue the uninsured coverage and that failure to do so requires the court to enter judgment in favor of the defendant. The court finds there is no genuine issue of material fact and the defendant's motion for summary judgment is granted.