Opinion
No. CV06-5003504S
May 23, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#110.01)
FACTS
The case presently before the court arises out of a two-car motor vehicle accident of January 22, 2004 on Whitney Avenue in New Haven, Connecticut. The complaint alleges the following. The plaintiff, John Carey, a passenger in a motor vehicle operated by Dennis Sullivan, claims injuries and damages resulting from a collision with a vehicle operated by one Kara MacDonald. The plaintiff seeks to recover underinsured motorist benefits from the defendant, Geico Insurance Company, under a policy issued by Geico to Brian Carey, the plaintiff's son, with whom the plaintiff resides.
While the complaint refers to Dennis Sullivan as a defendant, that appears to be a scrivener's error, as Dennis Sullivan is not listed as a defendant on the summons, and was not served.
On April 7, 2008, Geico was granted permission to file a motion for summary judgment. Geico claims in that motion that the plaintiff does not qualify as an insured under the Geico policy as he owned a motor vehicle on the date of loss that was required to be insured. In support of the motion, Geico attached an uncertified, unauthenticated copy of a policy, with endorsements but no declaration sheet, along with a certified document from the Department of Motor Vehicles. On May 5, 2008, the plaintiff filed his objection to the motion, claiming that there are genuine issues of material fact which would preclude summary judgment. The matter was argued at short calendar on May 5, 2008.
The document, which is apparently from the Connecticut DMV, appears to relate to the plaintiff, as it indicates the same name and address as the plaintiff.
DISCUSSION
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Summary judgment procedure is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987).
The party moving for summary judgment is required to support its motion with supporting documentation, including affidavits. Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "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." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). A party's conclusory statements, "in the affidavit and elsewhere," may not "constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
"The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49.
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ."(Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
The movant has the burden of demonstrating the absence of any genuine issue of material fact. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "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 judgment as a matter of law." (Internal quotation marks omitted.) Id.
"[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Id.
In its motion for summary judgment, Geico argues that it is only obligated to provide underinsured motorist benefits to an "insured," and that the plaintiff, John Carey, does not qualify as an "insured" under the terms of the Geico policy. Geico points to Section IV-Uninsured Motorist and Underinsured Motorist Coverage of the policy, which states: " Losses We Pay. Under this coverage, we will pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle . . ." (Emphasis in original.) Geico also relies on the definition of "insured" as found in Section IV: `Insured' means: (a) you; (b) your spouse if a resident of your household; (c) any relative of (a) or (b) above who resides with you and who does not own a motor vehicle that is required to be insured provided this coverage shall be primary for any relative while occupying an auto described in the declarations and covered by the bodily injury liability coverage of this policy; (d) any other person while occupying an insured auto; or (e) any person who is entitled to recover damages because of bodily injury sustained by an insured under (a), (b), (c) and (d) above; or (f) any employee of the named insured while occupying an insured auto in the course of employment." (Emphasis in original).
Section IV of the policy does not define "relative." "Relative" is defined in Section I, "Liability Coverages," as "a person related to you who resides in your household with you" (emphasis in original); that definition is incorporated by reference into section IV.
Geico argues that the plaintiff is not an insured under the Geico policy, because at the time of the January 22, 2004 accident, he owned a motor vehicle that was required to be insured, as evidenced by the certified document from DMV, which indicates that a 1998 Mercury was registered to him in November 2002 and renewed on December 9, 2004.
In his opposition, the plaintiff concedes that he owned a motor vehicle at the time of the accident, and that the vehicle was required to be insured. He argues, however, without submitting any affidavits or supporting documentation, that the ownership was technical only, as the vehicle was used and maintained by another son, James Carey, and that as such, he himself was not in possession or control of the vehicle.
According to the plaintiff, his son, without his knowledge or consent, did not comply with the requirement to insure the vehicle. However, the plaintiff's argument that he owned the 1998 Mercury in name only, and that it was in physical possession and control of James Carey, is a mere assertion, unsupported by any affidavit or documentary evidence. The only evidence properly before the court relating to the ownership of the 1998 Mercury is the certified DMV document indicating that the 1998 Mercury was registered to the plaintiff as of January 22, 2004.
As a preliminary matter, the court must address whether it may properly consider the uncertified, unauthenticated copy of the insurance policy, which is purportedly the applicable policy, where the plaintiff has not raised an objection.
With respect to documents that are submitted, the court is limited to considering documents that would be admissible at trial. City of New Haven v. Pantani, 89 Conn.App. 675, 680 (2005). The Pantani court reversed the decision of the trial court which had granted the plaintiff's motion for summary judgment, having considered uncertified, unauthenticated documents.
Practice Book § 17-45 provides in relevant part that "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . ." That section does not mandate that those documents be attached in all cases, but we note that "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). In fact, we have held that "Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing unauthenticated documents] in support of or in opposition to summary judgment." United Services Automobile Ass'n. v. Marburg, 46 Conn.App. 99, 107-08, 698 A.2d 914 (1997).
Therefore, before a document may be considered by the court in support of a motion for summary judgment, "there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . ." Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be. In this case, the plaintiff submitted numerous exhibits in support of its motion for summary judgment. The plaintiff failed, however, either to attach an affidavit attesting to the truth and accuracy of the various submissions or to provide certified copies of any of the documents.
CT Page 8583 Id. at 678-79.
However, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts. Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) (holding that trial court did not abuse its discretion in not considering the uncertified deposition testimony submitted by both parties). See also American Home Assurance Company v. Scalise, Superior Court, Judicial District of New Britain, Docket No. 98 0491778 (December 18, 2000, Shapiro, J.) [28 Conn. L. Rptr. 647] (where the defendant did not object to the plaintiff's submission of an uncertified, unauthenticated copy of portions of a professional liability insurance policy, the court considered the document, ultimately granting the plaintiff's motion for summary judgment); Grant v. Yale University, Superior Court, Judicial District of New Haven, Docket No. 99 0430454 (March 27, 2003, Licari, J.) (where there was no objection from the opposing party, the court considered uncertified copies of letters, interoffice memorandum, employer's statement of earnings, portions of a collective bargaining agreement, and portions of a deposition transcript); Langner v. Stop Shop, Superior Court, Judicial District of New Haven, Docket No. 95 0377385 (January, 27, 2000, Licari, J.) (the court considered uncertified, unauthenticated documents filed by both movant and non-movant, where neither party objected to the other party's documents.)
In light of the absence of any objection from the plaintiff, the court will consider the language of the policy submitted by the defendant.
Geico argues that limiting coverage to exclude a resident relative who owns a motor vehicle that is required to be insured is sanctioned by Middlesex Insurance Company v. Quinn, 225 Conn. 257 (1993). Geico argues that this plaintiff is not entitled to coverage, because in Quinn, the Supreme Court upheld the Appellate Court, which had concluded that the claimant was not covered under his father's policy because he owned his own car.
A more in-depth look at the Quinn case is required. In Quinn, the defendant was injured in a two-car accident while driving a car he owned. He lived with his father at the time of the accident, having recovered the full amount of the tortfeasor's liability insurance, he sought underinsured motorist coverage from his father's liability policy with Middlesex. The Middlesex policy stated in both the liability and underinsured motorist sections that, "Your, your, yourself . . . means a member of the family who is a resident of the household and who doesn't own a car . . ." The issue before the court was whether public policy precluded an insurer from excluding from uninsured motorist coverage a resident relative who owns a vehicle.
The Quinn court reasoned that the uninsured motorist statute, Conn. Gen. Statutes § 38a-336, unlike the automobile liability statutes, does not require that underinsured motorist benefits be extended to any particular class or group of insureds.
§ 38a-336 provides in relevant part as follows: "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 . . ."
The legislature did not specifically define "insured" in the context of underinsured motorist coverage. Rather, the statute requires that underinsured motorist coverage must be provided for the protection of persons insured thereunder . . . Thus, "persons insured" in this statute refer to persons specified as insureds in the liability portion of the policy. There would be no violation of public policy, therefore, unless the insurance policy specifically were to limit underinsured motorist coverage in such a way as to [preclude] persons who would otherwise qualify as insureds for liability purposes.
Id., 264-65. (Citations omitted; internal quotations omitted).
Based on this reasoning, the Quinn court concluded that because the defendant was not a covered person under the liability section of the policy which excluded "any vehicle other than your covered auto which is owned by a family member," Middlesex could properly exclude him from underinsured motorist coverage. Id., 267
The Quinn decision does not, however, stand for the broad proposition as advanced by the defendant here that the plaintiff, as the owner of a vehicle that is required to be insured, is not an insured under the policy; Geico's reliance on the Quinn case to support its argument that the plaintiff is not an insured under the Geico policy because he owned a car that was required to be insured is misplaced. While it is true that the Quinn court rejected the argument that public policy precluded an insurer from excluding from underinsured motorist coverage a resident relative who owns a vehicle which is required to be insured, Quinn requires that the language of the policy be examined, in order to determine whether a person is a covered person under the liability section of the policy.
In the present matter, the liability section of the policy defines persons insured as follows.
The following are insureds with regard to an owned auto.
1. you and your relatives unless any such person is excluded by endorsement;
2. persons using the auto with your permission. The actual use must be within the scope of that permission;
3. any other persons or organization for his or its liability because of acts or omissions of an insured under 1 or 2 above.
The following are insureds with regard to an non-owned auto.
1. (a) You;
(b) Your relatives when using a private passenger auto, utility auto, farm auto, or trailer.
Such use by you or your relatives must be with the permission, or reasonably believed to be with the permission, of the owner and within the scope of that permission.
2. A person or organization, not owning or hiring the auto, regarding his or its liability because of acts or omissions of an insured under 1 above. (Emphasis in original text).
This section does not explicitly exclude from the definition of insured a resident relative who owns his own car; such an exclusion is only found in the uninsured/underinsured section of the policy.
Under Connecticut law, an automobile liability policy must provide uninsured/underinsured motorist coverage for the protection of persons insured thereunder. In other words, while there is no requirement under Connecticut law that automobile insurance policies provide uninsured/underinsured motorist benefits to any particular class or group of insureds, once a policy provides liability coverage to an insured, it must then provide uninsured/underinsured motorist benefits to that insured. "The public policy behind uninsured motorist coverage . . . requires an insurer to provide uninsured motorist benefits to any insured under the automobile liability policy." Quinn at 267. In this matter, there is insufficient documentation before the court to determine where there exists a genuine issue of fact as to whether the plaintiff is an insured under the liability section of the policy.
For example, no evidence was submitted to address the issue of permissive use, or whether the vehicle in question was an owned or non-owned auto.
As Geico has failed to submit any evidence relating to whether the plaintiff is an insured under the liability section of the policy, there remains a genuine issue of material fact as to whether the plaintiff qualifies as an insured under the policy.
For the foregoing reasons, the defendant's motion for summary judgment is denied.