Opinion
CV-14-6020191
02-10-2016
Deborah Blanchard v. Amica Mutual Insurance Company et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS OF FOR SUMMARY JUDGMENT (#117 & #120)
Timothy D. Bates, J.
On February 19, 2014, the plaintiff, Deborah Blanchard, filed a two-count complaint against the defendants, Amica Mutual Insurance Company (Amica) and Metropolitan Group Property and Casualty Insurance Company (Metropolitan). Both counts sound in breach of contract: count one as against Amica and count two as against Metropolitan. On March 11, 2015, Amica moved for summary judgment on count one on the ground that there is no genuine issue of material fact that Amica has no obligation to provide for uninsured motorist coverage to the plaintiff for injuries she sustained in the motor vehicle accident at issue.
With its motion, Amica also submitted a memorandum in support and several exhibits: (A) Amica's Personal Auto Policy No. 910738-20MC; (B) a copy of the deposition transcript of Brian Bronillard; (C) a copy of a cover page from Charles A. Drda, Transportation Maintenance Director, to District Maintenance Directors regarding Storm 8 and copies of call out sheets for the subject storm; (D) copies of slips notifying State of Connecticut employees P. Prospert, W. Dinenno, and P. Postemsky of their plowing assignments for the relevant time frame and geographical area; (F) a copy of the general supervisor's daily report; and (F) the affidavit of Thomas Rukstela.
On May 22, 2015, Metropolitan also moved for summary judgment on count two on the same ground as in Amica's motion. On August 6, 2015 and October 13, 2015, the plaintiff filed opposing briefs to Amica's and Metropolitan's motions, respectively, with exhibits. On August 17, 2015, Amica filed a reply memorandum, without exhibits. The motion was argued on October 26, 2015.
In addition to its motion, Metropolitan submitted a memorandum in support and one exhibit: (1) Personal Auto Policy Number 1496262070 with an attached affidavit of Anna Storti, the claim representative assigned to the subject case. Further, it incorporated Amica's exhibits (B) through (F) by reference.
The plaintiff submitted the following exhibits in opposition to Amica's motion: (A) a copy of a portion of Amica's Personal Auto Policy No. 910738-20MC; and (B) a copy of the deposition transcript of Brian Brouillard. Additionally, she submitted the following exhibits in opposition to Metropolitan's motion: (A) a copy of a portion of Metropolitan's Personal Auto Policy Number 1496262070; (B) a copy of a portion of the deposition transcript of Brian Brouillard; and (3) an unreported Connecticut Superior Court case.
FACTS
The relevant facts, viewed in the light most favorable to the plaintiff; are as follows. On or about January 22, 2011, the plaintiff, a Rhode Island resident insured by Metropolitan for automobile insurance, was operating a vehicle owned by Carly M. Blanchard; Amica insured Blanchard for automobile liability. The plaintiff stopped at a flashing red stop light on Cherry Hill Road in Brooklyn, Connecticut and attempted to make a left hand turn onto Route 6. A large and unreasonably high snow pile, created by a plow or truck operated by an unknown individual (operator), obstructed the plaintiff's line of sight of the oncoming traffic. The plaintiff pulled her vehicle into the travel portion of Route 6 and into a position where her view was not obstructed by the snow pile. At such time, a vehicle operated by Leeann Stellinach, struck the plaintiff's vehicle, which caused the plaintiff to suffer injuries and losses.
The plaintiff alleges that her injuries and losses were directly and proximately caused by the negligence and carelessness of the unknown operator in several ways. Further, the plaintiff alleges in count one that because the motor vehicle liability insurance policy covering the operator is unable to be determined and therefore is inadequate to compensate the plaintiff for her injuries and losses, such liability is the legal responsibility of Amica, pursuant to the terms of its policy covering Blanchard and General Statutes § 38a-336. In count two, the plaintiff likewise alleges that the injuries and losses sustained by the plaintiff are the legal responsibility of Metropolitan. pursuant to the terms of its policy with the plaintiff and § 38a-336, because the unknown operator's motor vehicle liability insurance policy is unable to be determined and therefore is inadequate to compensate the plaintiff.
Those ways are as follows: " a. In failing to plow and create snow piles in accordance with the reasonable standard of care; b. In failing to control and construct a snow pile that allowed drivers in the vicinity an unobstructed view of oncoming traffic; c. In failing to inspect said snow pile to ensure that it did [not] obstruct the view of drivers in the vicinity; d. In failing to warn drivers in the vicinity of the unsafe and dangerous snow pile and the view obstruction; e. In allowing a snow pile to obstruct the view of drivers in the vicinity; and f. In allowing [a] snow pile to create an unreasonable risk of injury to drivers in the vicinity."
The plaintiff further alleges that at all relevant times, all premiums due on said policy had been paid by Blanchard and the policy was in full force and effect.
Further, the plaintiff alleges that at all relevant times, she had paid all premiums on said policy, which was in full force and effect.
In its answer, Amica admitted that at all relevant times it was authorized by the Insurance Commissioner of the State of Connecticut to transact business within Connecticut and that it continues to be in the business of writing various types of insurance, including automobile liability insurance policies. Further, it admitted that it had a contract for automobile insurance with Blanchard under the provisions of an insurance policy designated as Policy No. 910738-20MC, which included coverage for uninsured motorist benefits. Amica either denied or left the plaintiff to her proof on the remainder of her allegations. In addition, Amica alleged two special defenses: (1) limitation of its liability, and (2) comparative negligence.
Specifically, Amica denied paragraphs 7-16 of count one of the plaintiff's complaint.
Likewise, in its answer, Metropolitan admitted that at all relevant times, it was authorized by the Insurance Commissioner of the State of Connecticut to transact business within Connecticut and that it continues to be in the business of writing various types of insurance, including automobile liability insurance policies. Further, it admitted that it had a contract for automobile insurance with the plaintiff under the provisions of an insurance policy designated as Policy No. 1496262070, which included coverage for uninsured motorist benefits, that the plaintiff had paid all premiums due on the subject policy at all relevant times, and that the subject policy was in full force and effect. Metropolitan either denied or left the plaintiff to her proof on the remainder of her allegations. Additionally, Metropolitan alleged two special defenses: (1) limitation on uninsured motorist coverage, and (2) limitation of its liability.
Specifically, Metropolitan denied paragraphs 7, 9, 15, and 16 of count two of the plaintiff's complaint.
DISCUSSION
Practice Book § 17-49 provides that summary judgment must be rendered if the pleadings, affidavits, and any other proof submitted demonstrate 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. " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" 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.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014). " 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." (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).
Amica and Metropolitan make the same arguments in their separate motions for summary judgment. They argue that there is no genuine issue regarding the fact that they have no obligation to provide for uninsured motorist coverage to the plaintiff for the injuries she sustained in the subject accident for two main reasons. First, they argue that all of the vehicles that plowed the intersection of Cherry Hill Road and Route 6 in Brooklyn, Connecticut have been identified, are vehicles owned by a governmental unit or agency, and are selfinsured, thus making Blanchard's and the plaintiff's uninsured motor vehicle provisions with Amica and Metropolitan, respectively, inapplicable. Specifically, they argue that the evidence demonstrates that the town of Brooklyn was responsible for plowing Cherry Hill Road and the Department of Transportation was responsible for plowing Route 6. Second, the defendants argue that the plaintiff is not legally entitled to recover from the owner or operator of any of the plows that plowed the subject intersection because she has failed to provide either the state or Brooklyn with the required notice of a claim for a highway defect, pursuant to General Statutes § § 13a-144 and 13a-149, respectively, and therefore, is barred from recovering under the uninsured motorist provision of the subject policy, pursuant to its plain language.
In support of these arguments, the Amica offers language from its policy at issue. Pursuant to its policy, Amica " will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury . . . sustained by an insured . . ." (Emphasis omitted.) The policy defines an " insured" under its uninsured motorists coverage portion, in relevant part, as " [a]ny other person occupying your covered auto." (Emphasis omitted.) The policy defines an " [u]ninsured motor vehicle, " in relevant part, as " a land motor vehicle . . . of any type . . . [w]hich is a vehicle whose operator or owner cannot be identified and . . . which causes an accident resulting in bodily injury without hitting . . . your covered auto." (Emphasis omitted.) Further, it states that " [i]f there is no physical contact with the vehicle causing the accident the insured must prove by a fair preponderance of evidence that their injuries resulted from the negligence of an unidentified motorist." (Emphasis omitted.) Finally, the policy excludes " any vehicle or equipment . . . [o]wned or operated by a self-insurer under any applicable motor vehicle law" from its definition of " uninsured motor vehicle." The subject policy's limit for bodily injury caused by uninsured motorists was $25,000 each person/$50,000 each accident.
Endorsement PP 04 90 01 05 was made part of the subject policy at the time of its issue and it replaces the language of the policy's Part C--Uninsured Motorists Coverage.
Likewise, Metropolitan offers language from its subject policy in support of its arguments. Pursuant to its policy, Metropolitan " will pay damages for bodily injury sustained by . . . you . . . caused by an accident arising out of the ownership, maintenance, or use of an uninsured motor vehicle, which you . . . are legally entitled to collect from the owner or driver of an uninsured motor vehicle . . ." (Emphasis omitted.) The policy defines an " uninsured motor vehicle, " in relevant part, as " a hit and run motor vehicle which causes bodily injury to a person covered under this section as the result of striking that person . . . if . . . the identity of the driver and the owner of the hit and run vehicle is unknown . . ." (Emphasis omitted.) The policy's definition of " uninsured motor vehicle" " does not include: . . . 2. an automobile owned and operated by a self-insurer as defined in the applicable motor vehicle financial responsibility law, compulsory insurance law, motor carrier law, or any other similar applicable law; or 3. an automobile owned by the United States of America, Canada, a state, a political subdivision of any such government, or an agency of any of the foregoing." (Emphasis omitted.) The subject policy's limit for bodily injury caused by uninsured motorists was $100,000 per person/$300,000 per accident.
Further, both defendants offered as Exhibit B the deposition testimony of Brian Brouillard, Transportation Maintenance Manager for the Department of Transportation in support of their arguments. During his deposition, Brouillard was generally asked about a snow storm that began on January 20, 2011 and ended on January 21, 2011, and, in particular, he responded in the affirmative to a question that there were not any records of snow plowing by state highway crews between the end of the subject storm and January 22, 2011, the date of the subject accident. Further, he was asked several questions about the business records he brought with him to his deposition. He stated that the call out sheets--attached to Amica's motion, and incorporated by Metropolitan's motion, as Exhibit C--named three drivers--state employees operating state trucks--responsible for plowing Route 6 in Brooklyn. He also confirmed that specific truck slips--here, Exhibit D--noted those three state employees' plowing assignments during the relevant time period: Route 6 in Brooklyn.
Additionally, he referenced the general supervisor's daily report--attached here as Exhibit E--to further demonstrate that the three state employees referred to in Exhibits C and D plowed Route 6 in Brooklyn, including the intersection in question. Further, he answered questions about the snow accumulation for the subject storm with an estimate of five and a half inches. He further testified that, based on his records and not on his personal knowledge, just the state crews would have plowed Route 6 between the subject storm and when the accident occurred, and that the Department of Transportation should have records of all of the individual identities of all the parties that contributed to the subject snow pile from November of 2010 through January 22, 2011. Finally, he testified that the state and Brooklyn are responsible for the creation of the subject snow pile and that Brooklyn is responsible for clearing sight lines from town roads.
Finally, the defendants offered as Exhibit F an affidavit of Thomas Rukstela, employed by Brooklyn as Road Foreman of the Town Garage. Rukstela attested that Brooklyn is responsible for maintaining and plowing snow with respect to Cherry Hill Road at its intersection with Route 6 in Brooklyn; this responsibility, he attested, is shared with the state, which must maintain and snowplow Route 6. These shared responsibilities applied on January 22, 2011. Further, he attested that on January 22, 2011, the Town of Brooklyn utilized its own trucks, owned and self-insured by Brooklyn, to perform its plowing duties at the subject intersection. Rukstela could not speak to the vehicles, insurance, or individuals utilized by the state with regard to the plowing of the subject intersection on January 22, 2011. Finally, he attested that, to the best of his knowledge, in January of 2011, Brooklyn only utilized town employees to plow Cherry Hill Road at its intersection with Route 6 in Brooklyn, and he attached business records of the town employees who plowed Cherry Hill Road in Brooklyn at its intersection with Route 6 on January 22, 2011.
The plaintiff makes similar arguments in opposition to both defendants' motions. As to Amica's motion, she argues that there remains a genuine issue of material fact as to the " unidentified motorist, " that created the defective snow pile as alleged in her complaint; as to Metropolitan's motion, she argues that there is a genuine issue of material fact as to whether an " uninsured motor vehicle, " created the subject defective snow pile. She argues that these genuine issues of material fact remain because the snow pile became unreasonably high over time in response to various snow storms and various unknown plow operators, and the defendants have only submitted evidence as to possible contributors to the snow pile as to the storm immediately preceding the accident and not over the course of the winter. Further, she argues that Amica's policy does not define an " unidentified motorist" and that Metropolitan's policy is vague and ambiguous because it does not cover scenarios like the one at issue here: negligence of an unknown operator without physical contact with the insured. Finally, she argues that she is claiming breach of contract claims against each defendant, and not highway defect claims; therefore, the defendant's lack of statutory notice argument is inapplicable.
In support of her arguments in opposition to Amica's motion, the plaintiff submitted language from Policy No. 910738-20MC to demonstrate that she must show " by a fair preponderance of the evidence that [her] injuries resulted from the negligence of an unidentified motorist, " and yet the policy does not define the term " unidentified motorist." Further, she submitted deposition testimony of Brouillard to support her argument that the subject snow pile was an accumulating defect created over the course of the winter by multiple plow drivers, who are incapable of being identified. She highlighted Brouillard's testimony that five and a half inches fell during the storm immediately preceding the accident and that such an amount would not create an unreasonably high snow pile. In addition, she points to his testimony that there had been other storms during November and December of 2010 and January of 2011. Finally, she emphasized Brouillard's response of " [t]hat's possible" to the question of whether it was possible that sometimes people with private plows contribute to the snow piles as evidence of a disputed material fact: the identity of the operator who created the unreasonably high snow pile.
Likewise, the plaintiff submitted policy language and deposition testimony from Brouillard in support of her arguments in opposition to Metropolitan's motion. First, she cites language from Policy Number 1496262070 in support of her argument that the policy's language is vague and ambiguous because the language does not address the rights and responsibilities between the insurer and the insured when an injury arises from the ownership, maintenance, or use of an uninsured motor vehicle when there is no physical contact. In addition to citing the same deposition testimony described in the immediately preceding paragraph to support her similar arguments against Metropolitan's motion, the plaintiff also submits Brouillard's testimony to demonstrate his denial that the state was responsible for, and his lack of personal knowledge of, the subject snow pile.
" Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning." (Internal quotation marks omitted.) Connecticut Insurance Guaranty Association v. Drown, 314 Conn. 161, 187-88, 101 A.3d 200 (2014). " Under those circumstances, the policy is to be given effect according to its terms . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result . . . In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy." (Internal quotation marks omitted.) Johnson v. Connecticut Insurance Guaranty Association, 302 Conn. 639, 643, 31 A.3d 1004 (2011).
General Statutes § 38a-336 mandates that each automobile liability insurance policy shall provide insurance for uninsured motorist coverage for the protection of insured persons who are legally entitled to recover damages from owners or operators of uninsured and underinsured motor vehicles. Likewise, the accompanying regulation, § 38a-334-6 of the Regulations of Connecticut State Agencies, provides, " [t]he insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured . . . motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured . . . motor vehicle . . . Regs., Conn. State Agencies § 38a-334-6(a). Section 38a-334-6(c) of the Regulations of Connecticut State Agencies states that an insurer's obligation may be made inapplicable if the uninsured motor vehicle is owned by a self-insurer under any motor vehicle law, or any government or agency thereof. Further, " [a]n uninsured motorist claim may be brought in a multitortfeasor context so long as one of the tortfeasors is uninsured, or if one of the putative tortfeasors is unidentified . . ." Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 732, 778 A.2d 899 (2001).
General Statutes § 38a-336 provides, in pertinent part, following: " (a)(1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles . . . because of bodily injury . . ."
Section 38a-334-6(a) of the Regulations of Connecticut State Agencies provides, in pertinent part: " The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured . . . motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured . . . motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies . . ."
Section 38a-334-6(c) of the Regulations of Connecticut State Agencies provides: " The insurer's obligations to pay may be made inapplicable: (1) To any claim which has been settled with the uninsured motorist without the consent of the insurer; (2) if the uninsured or underinsured motor vehicle is owned by (A) the named insured or any relative who is a resident of the same household or is furnished for the regular use of any of the foregoing, (B) a self insurer under any motor vehicle law, or (C) any government or agency thereof, (3) to pay or reimburse for workers' compensation or disability benefits."
In Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 593 A.2d 498 (1991), the Supreme Court examined the issue of whether public policy entitled the plaintiff, an insured who lost control of his car and suffered damages after the driver of an unidentified vehicle cut him off without making physical contact, to uninsured motorist coverage. Id., 373-74. While the Supreme Court concluded that the coverage afforded to the plaintiff was limited, as a matter of contract law, to hit and run accidents involving physical contact with the tortfeasor per the subject policy's language, it also concluded, after an examination of relevant public policy and legislative and regulatory history, that the subject policy afforded uninsured motorist protection to the plaintiff where there was no physical contact between the unidentified vehicle of the tortfeasor and that of the plaintiff Id., 376-78, 383. In so concluding, the Supreme Court stated that " the applicable regulations do not expressly exclude uninsured motorist coverage for accidents in which the tortfeasor's conduct, without physical contact, causes an otherwise covered insured to sustain personal injuries" and that " [a]ssigning a dispositive role to physical contact in this case would . . . be inconsistent with prevailing legal principles . . ." Id., 378, 380. On the contrary, it identified several " affirmative reasons for recognizing the liability of the [subject] tortfeasor, and for imposing responsibility for indemnification on the insurer, without regard to physical contact . . . [including the principle that] liability ordinarily flows from the breach of a duty and the injury proximately related thereto, rather than from the manner in which the breach of that duty becomes manifest." Id., 381.
In the present case, the court concludes that genuine issues of material fact exist. First, with regard to Amica's motion, a mixed question of law and fact exists as to whether the state self-insured the snow plows used in creating the subject snow pile. Under the subject Amica policy, " any vehicle or equipment . . . [o]wned or operated by a self insurer under any applicable motor vehicle law" is not an " uninsured motor vehicle." Government or agency owned vehicles are not likewise excluded from the definition of " uninsured motor vehicle, " per Endorsement PP 04 90 01 05. Amica has not produced any evidence demonstrating that the state self-insured the subject snow plows. Further, it has not provided the court with, and the court has not found, a specific applicable motor vehicle law providing that the Department of Transportation or the state self-insures its vehicles, and specifically its snow plows.
Furthermore, the court concludes that a genuine issue of material fact exists as to the identity of the operators that contributed to the accumulating creation of the subject snow pile. The deposition testimony of Brouillard demonstrated a disputed fact: that it is possible that a private unknown operator contributed to the snow pile, in addition to the state and municipal employees. Further, although Brouillard testified that his records from November of 2010 through January 22, 2011 should be able to individually identify all of the state employees who contributed to the subject snow pile, the affidavit of Rukstela only refers to January 22, 2011 with regard to the individual identities of the municipal employees who contributed to the snow pile. As the plaintiff is alleging that the subject snow pile is an accumulating defect that took place over time and as the evidence demonstrates that there were prior storms in addition to the one immediately preceding the accident, there is a genuine issue of material fact as to the identities of the persons who contributed to the snow pile from November of 2010 through January 21, 2011.
Based on the evidence presented by the defendants, a jury or court, after a trial, might be able to find that, more probably than not, the snow pile was created by municipal and/or state vehicles that were self-insured. However, there are sufficient uncertainties regarding the defendant's claims, particularly given the length of time taken to develop the snow pile, that the court would not feel comfortable finding that " . . . on the evidence viewed in the light most favorable to the non-movant, the trier of fact could not reasonably reach any other conclusion than . . ." a directed in favor of the defendants. Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. at 815, supra .
As the court has concluded that a genuine issue of material fact exists as to the identity of the operators who contributed to the subject snow pile, it does not need to rule on the defendants' argument regarding statutory notice under a highway defect claim. Therefore, the defendants' motions for summary judgment are denied.