Opinion
CV146047082S
11-18-2015
Miguel Diaz et al. v. Progressive Direct Insurance Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (#113)
Robin L. Wilson, J.
FACTS
On May 15, 2014, the plaintiffs, Miguel Diaz and Johanna Vallejo, filed a two-count complaint against the defendant, Progressive Direct Insurance Company. In the complaint, the plaintiffs allege the following facts. Diaz was an authorized operator of a vehicle owned by Jose Sanchez. Sanchez had an automobile insurance policy (policy) with the defendant, all premiums had been paid, and the policy included uninsured and underinsured motorist benefits coverage. On January 3, 2012, Diaz was parked in the driveway of 436 Middletown Avenue, New Haven, Connecticut, with Vallejo as a passenger, when Ambal Ruiz' vehicle backed into the front end of Sanchez' vehicle. After the collision, Ruiz fled the scene but was later apprehended. As a result of Ruiz' negligence, the plaintiffs suffered injuries. Ruiz was uninsured and unable to compensate the plaintiffs for their injuries and, therefore, the plaintiffs allege that they are entitled to uninsured motorist coverage from the defendant under the terms of the policy and pursuant to General Statutes § 38a-336.
On December 2, 2014, the defendant filed an amended answer and special defenses. In the answer, the defendant admits that Sanchez had an insurance policy but denies that the policy was " with the defendant." The defendant also admits that all premiums were paid on the policy and the policy was in full force and effect; however, the defendant denies that, pursuant § 38a-336 and the terms of the policy, it is legally responsible for the plaintiffs' injuries. The defendant's special defenses assert that on the date of the alleged accident, Diaz was delivering food for compensation, which triggered the provision of the policy that excludes coverage " for retail or wholesale delivery . . . of food, " and also that the plaintiffs' recovery would be limited to the policy limits, less any applicable setoffs.
The defendant's original answer and special defense was filed on August 19, 2014. The amended answer mirrors the original answer, but the original special defense included only one special defense, stating that the plaintiffs' recovery would be limited by the policy limits, less any applicable setoffs. The plaintiffs deny the special defenses in both their original reply to special defenses filed on August 26, 2014, and their amended reply to special defenses filed on December 17, 2014.
Also on December 2, 2014, the defendant filed a motion for summary judgment on the ground that the policy contained an exclusion that bars recovery for bodily injury or property damage when, at the time of the accident, the insured vehicle was being used to deliver food for compensation and, here, Diaz was using the vehicle to deliver food at the time of the collision. In support of the motion for summary judgment, the defendant filed a memorandum of law and provided the following evidence: (1) a signed and sworn affidavit of Tiffany Burton, an employee of the defendant, that attaches certified copies of the declarations page of the policy and the policy itself, and (2) unauthenticated portions of Diaz' deposition transcripts. On January 29, 2015, the plaintiffs filed an objection to the defendant's motion for summary judgment and a memorandum of law in opposition. On June 18, 2015, the defendant filed a reply brief. The court heard oral arguments on the motion at short calendar on July 27, 2015.
DISCUSSION
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
" 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 . . . When 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" [C]onstruction of a contract of insurance presents a question of law for the court . . ." (Internal quotation marks omitted.) Moore v. Continental Casualty Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000). " 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." (Internal quotation marks omitted.) Rivera v. Meyer, Superior Court, judicial district of New Haven, Docket No. CV-13-6036049-S, (February 7, 2014, Nazzaro, J.).
The defendant argues that the motion for summary judgment should be granted because the language concerning uninsured motorist coverage in the insurance policy clearly excludes damages for bodily injuries sustained while delivering food, and the accident allegedly took place while Diaz was parked in front of a home where he was making a delivery. The plaintiffs counter by arguing that the exclusion is unlawful because it is not expressly authorized by statute or regulation, and the exclusion violates public policy.
A
Expressly Authorized Exclusions
" [The] resolution of the [present motion] revolves around [the court's] interpretation of the regulation and the language of the [named] plaintiff's insurance policy. Interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . If the terms of an insurance policy are of doubtful meaning, that permissible construction which is most favorable to the insured is to be adopted; but if they are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and the courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Citation omitted; internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 711-12, 59 A.3d 207 (2013). " 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." (Citations omitted; internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 6, 942 A.2d 334 (2008).
" In Connecticut, insurers are required by statute to provide underinsured motorist coverage to their policyholders." Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. at 712. General Statutes § 38a-336(a)(1) provides that each automobile liability insurance policy shall provide uninsured and underinsured motorist coverage, in accordance with the regulations adopted by the insurance commissioner pursuant to § 38a-334. General Statutes § 38a-336(a)(1) provides in relevant part: " No insurer shall be required to provide uninsured and underinsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured." Section 38a-334(a) provides in relevant part: " The Insurance Commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies . . . Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies . . ."
General Statutes § 38a-336(a)(1) provides: " Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, 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 and insured motor vehicles, the insurer or which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage with limits requested by any named insured upon payment of the appropriate premium, provided each such insurer shall offer such coverage with limits that are twice the limits of the bodily injury coverage of the policy issued to the named insured. The insured's selection of uninsured and underinsured motorist coverage shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No insurer shall be required to provide uninsured or underinsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or motorcycle that is owned by the named insured, or (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
Section 38a-334-6(c) of the Regulations of Connecticut State Agencies provides minimum coverage that insurers must provide when issuing uninsured motorist coverage and limits uninsured motorist coverage by providing exclusions. Section 38a-334-6(c) provides: " The insurer's obligations to pay [uninsured motorist coverage] may be made inapplicable: (1) [t]o 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." Section 38a-334-6(d) provides additional limits of liability: " (1) The limit of the insurer's liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury, (B) paid or are payable under any workers' compensation law, or (C) paid under the policy in settlement of a liability claim. (2) The policy may also provide that any direct indemnity for medical expense paid or payable under the policy will reduce the damages which the insured may recover under this coverage. (3) Any payment under these coverages shall reduce the company's obligation under the bodily injury liability coverage to the extent of the payment. (4) This subsection shall not apply to underinsured motorist conversion coverage except that no payment under a policy providing underinsured motorist conversion coverage shall duplicate payment from any other source."
" [A]n insurer may not, by contract, reduce its liability for . . . uninsured or underinsured motorist coverage except as [§ 38a-334-6] of the Regulations of Connecticut State Agencies expressly authorizes . . . In order for a policy exclusion to be expressly authorized by [a] statute [or regulation], there must be substantial congruence between the statutory [or regulatory] provision and the policy provision . . . Substantial congruence exists when [t]he terms in the policy . . . and [the regulation] correspond in all material respects." (Citations omitted; internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. at 714. " In determining whether the policy provision at issue is substantially congruent with the regulation, we compare the text of the regulation with that of the relevant policy provision, mindful that [a]n insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy . . . The policy words must be accorded their natural and ordinary meaning." (Internal quotation marks omitted.) Guarino v. Allstate Property & Casualty Ins. Co., 142 Conn.App. 603, 608, 67 A.3d 300 (2013), aff'd, 315 Conn. 249, 105 A.3d 878 (2015).
In the present case, it is undisputed that the language in the policy provides that the defendant will not provide uninsured or underinsured motorist coverage " to bodily injury sustained by any person while using or occupying . . . covered auto while being used . . . for retail or wholesale delivery, including but not limited to, the pickup, transport, or delivery of magazines, newspapers, mail or food." See D.'s Mot. for Summ. J., Ex. Conn. Auto Policy, p. 16. The defendant also provided portions of Diaz' deposition, wherein Diaz stated that he was making deliveries for the Wu Chun, and that after the accident occurred he delivered the food. See D.'s Mot. for Summ. J., Diaz Tr., pp. 25, 30.
Although the deposition provided by the defendant was uncertified, the court will consider the deposition, as no objection as to its authenticity has been filed. See Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012) (" [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of the [the document's] genuineness . . . The requirement of authentication applies to all types of evidence . . . Additionally, in considering a motion for summary judgment, [i]t is within the court's discretion whether to accept or decline [to accept] . . . supplemental evidence." [Citations omitted; internal quotation marks omitted.]); Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006) (" Supporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence . . . Sworn or certified copies of all papers . . . shall be attached [to the affidavit] . . . A party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . In interpreting the rules liberally, the deposition testimony could have been admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists . . . Therefore, a court properly could consider such a submission without objection . . . Nevertheless, we are reluctant to find that the trial court incorrectly insisted on certified transcripts to support an evidentiary finding when the rule provides that such documentation shall be supplied." [Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.]).
In order to determine if the policy is substantially congruent with the regulation, the court must examine the policy's language and the regulation's language. In comparing the language of the policy to the exclusions and limitations authorized by § 38a-334-6(c) and § 38a-334-6(d) of the regulations, the policy does not remotely mirror the expressly authorized limitations or exclusions set forth in the regulations. None of the exclusions found in § 38a-334-6(c) restrict the uninsured motorist coverage on the basis of how the vehicle should be used at the time of the accident, yet the policy the defendant seeks to enforce does restrict coverage on this basis. Therefore, the policy and the applicable regulations are not substantially congruent because the terms of the policy do not " correspond in all material aspects" with the regulation. Anastasia v. General Casualty Co., of Wisconsin, supra, 307 Conn. at 714.
The crux of the defendant's argument, however, is that if Diaz had been liable for the accident, the defendant would have been entitled to decline coverage pursuant to § 38a-334-5(c)(4) of the Regulations of Connecticut State Agencies. Section 38a-334-5(c)(4) of the Regulations of Connecticut State Agencies, which concerns the minimum provisions for bodily injury liability and property damage liability, retains language that is similar to the policy exclusion the defendant seeks to enforce and provides that the insurer's obligation to pay and defend may be made inapplicable " to the use of a motor vehicle as a public or livery conveyance." Section 38a-334-5(c)(4), however, is not substantially congruent with either § 38a-334-6(c) of the regulations or the policy exclusion because both relate to uninsured motorist coverage, whereas § 38-334-5(c)(4), the regulation upon which the defendant relies, relates to liability coverage.
In Britto v. Franko, Superior Court, judicial district of Fairfield, Docket No. CV-12-6030192-S, (May 20, 2014, Sommer, J.) (58 Conn. L. Rptr. 220, 220), the plaintiff's insurance policy excluded uninsured motorist coverage for bodily injury sustained while using any vehicle for carrying property for the purpose of compensation. Similar to the present case, the defendant, relying on § 38a-334-5(c), asserted that, " although there is no Connecticut case law addressing the validity of the subject exclusion, the Regulations of Connecticut State Agencies permit the exclusion in the liability insurance context pursuant to § 38a-334-5(c)(4) ('[t]he insurer's obligation to pay and defend may be made inapplicable . . . to the use of a motor vehicle as a public or livery conveyance') and § 38a-334-5(c)(11)(B)(iii) ('[t]he insurer's obligation to pay and defend may be made inapplicable . . . to bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any . . . motor vehicle . . . while being used by the insured as a public or livery conveyance or for carrying property for a charge')." Id., 221. The defendant admitted, however, that the policy exclusion was not " expressly authorized by statute or regulation in the [uninsured motorist] context" and was " not substantially congruent with the regulation that authorizes the exclusion in the liability insurance context . . . because the terms of the policy [did] not 'correspond in all material respects' with the regulation . . . The reason for the lack of congruence here [was] that the relevant policy provision relate[d] to [uninsured motorist] coverage and the regulation relate[d] to liability coverage." (Citations omitted.) Id.
Furthermore, in the present case, the defendant does not cite to any statute, case law, or treatise to explain why the court should apply the language in § 38a-334-5(c)(4) of the regulations rather than § 38a-334-6(c) of the regulations. Indeed, " [w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them." (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). " In construing regulations, the general rules of statutory construction apply." Smith v. Zoning Board of Appeals, 227 Conn. 71, 89, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994). " In accomplishing the myriad and difficult policy objectives inherent in the uninsured and underinsured motorist coverage statute, the legislature expressly left to the sound discretion of the insurance commissioner the authority to develop regulations pertaining to exclusions, including appropriate reductions to the limits of liability." (Internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. at 725. Thus, since General Statutes § 38a-336(a)(1) provides that each automobile liability insurance policy shall provide uninsured and underinsured motorist coverage in accordance with the regulations adopted by the insurance commissioner pursuant to § 38a-334, the insurance commissioner is presumed to know the existence of the public or livery conveyance exclusion provided in § 38a-334-5(c)(4) of the regulations. If the insurance commissioner intended to include the same exclusion in the uninsured motorist coverage context, it is likely that the insurance commissioner would have done so. Therefore, although the exclusion in the policy is unambiguous and the defendant's intent in adding the exclusion is clear, the exclusion is not substantially congruent with the regulation that authorizes the exclusion in the liability context pursuant to § 38a-334-5(c) because the terms of the policy do not " correspond in all material respects" with the regulation. Anastasia v. General Casualty Co., of Wisconsin, supra, 307 Conn. at 714. Because the exclusion is not substantially congruent with neither § § 38a-334-5(c)(4) nor 38a-334-6(c), it is therefore unenforceable.
B
Public Policy
In addition to the prohibition against an insurer reducing its liability for uninsured or underinsured motorist coverage, except as expressly authorized by § 38a-334-6 of the regulations, an exclusion of uninsured motorist coverage will be invalidated where it is prohibited by public policy. See Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). " The public policy established by the uninsured motorist statute 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." Id. " Indeed, the underlying purpose of underinsured motorist coverage is simply . . . to provide an insured who is injured in an accident with the same resources he would have had if the tortfeasor had liability insurance equal to the amount of the insured's uninsured/underinsured motorist coverage." (Internal quotation marks omitted.) Stiffler v. Continental Ins. Co., 288 Conn. 38, 49, 950 A.2d 1270 (2008). " [O]ur underinsured motorist statute is remedial in nature and designed to protect people injured by uninsured motorists." Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 373, 641 A.2d 783 (1994). " Although compensating the victim of an underinsured motorist as if the tortfeasor were adequately insured is a general public policy objective of the uninsured motorist statute . . . we have concluded that other policy considerations preclude conferring the selfsame rights on both the victim of an adequately insured tortfeasor and the victim of an inadequately insured tortfeasor." (Citations omitted; internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. at 723. " To achieve this purpose, no policy exclusions contrary to the statute [or regulation] of any of the class of family insureds are permissible . . ." (Internal quotation marks omitted.) Harvey v. Travelers Indemnity Co., supra, at 249. " Accordingly, the general objective of equivalent recovery is limited by an insurer's regulatory authority to reduce the limits of liability as permitted by § 38a-334-6(d), as long as the insured retains a minimum level of protection as mandated by statute." (Internal quotation marks omitted.) Anastasia v. General Casualty Co. of Wisconsin, supra, 307 Conn. at 724.
The exclusions and limitations provided for, by the insurance commissioner, in § 38a-334-6(c) of the regulations align with the public policy behind the regulation. The expressly authorized exclusions and limitations are based on the notion that the policyholder will receive coverage elsewhere. The public policy underlying underinsured motorist exclusions is based upon a demonstrated ability to pay judgments rendered. See Giglio v. American Economy Ins. Co., 278 Conn. 794, 809-10, 900 A.2d 27 (2006) (citing Orkney v. Hanover Ins. Co., 248 Conn. 195, 206, 727 A.2d 700 [1999] stating " we find 'nothing inconsistent between the public policy underlying [uninsured] motorist coverage and a regulation that permits a coverage exclusion that is based upon [a legislatively determined] . . . ability to pay judgments rendered' ").
In the present case, the defendant seeks to decline uninsured motorist coverage because the plaintiffs were delivering food when the accident occurred. Nonetheless, restricting coverage on this basis would not coincide with the purpose of § 38a-334-6(c) of the regulations because, in this case, excluding individuals using a vehicle to deliver food for compensation would leave the plaintiffs without coverage. In the present case Diaz was an authorized user of the car and was only driving the car because his car broke down. See D.'s Mot. for Summ. J., Diaz Tr., p. 26. Therefore, it is likely that he was unaware of the policy exclusions as he was not the owner or the insured. If the exclusion at issue were permissible, it would leave the plaintiffs uncompensated, and without any other source of coverage. As previously discussed, uninsured motorist coverage is remedial in nature, and leaving the plaintiffs without a source of coverage or protection would not cure the injury sustained by the fault of another. Moreover, denying coverage would be punitive, punishing the plaintiffs for the careless acts of another individual.
The defendant also argues that it would have been more appropriate if the policy was a commercial policy. The legislative history of § 38a-334, however, does not support this argument. In 1971 the legislature amended § 38a-334 to include commercial motor vehicles, and insurance policies covering classes of vehicles expressly enumerated in § 38a-334 must have uninsured motorist coverage. See Willoughby v. New Haven, 254 Conn. 404, 423-25, 757 A.2d 1083 (2000). Therefore, regardless of whether the plaintiffs were driving a personal passenger vehicle or a commercial vehicle, or whether the policy was a personal or commercial policy, the policy would have provided uninsured motorist coverage. Furthermore, the owner of the car, Sanchez, did not work at the Wu Chun restaurant. See D.'s Mot. for Sum. J., Diaz Tr., p. 26. Thus, there is no evidence to support that, other than on the date of the accident, the car was used for commercial purposes thereby making a commercial policy more appropriate.
Thus, since the provision excluding uninsured motorist coverage for bodily injury sustained while using a vehicle to deliver food is contrary to public policy, and is not expressly authorized by § 38a-334-6 or § 38a-334-5(c)(4) of the regulations, the defendant is not entitled to judgment as a matter of law, and therefore summary judgment is not appropriate.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied.