Opinion
No. 377108
December 12, 2003
MEMORANDUM OF DECISION
The plaintiff, Barbara Fusco, has made application to the court to vacate, modify or correct the awards in two underinsured motorist arbitrations, in which she was the claimant. The respondents, Allstate Insurance Company, (Allstate) and Liberty Mutual Insurance Company (Liberty Mutual), have moved to confirm the awards.
These proceedings arise out of a February 3, 1986 motor vehicle collision in which the plaintiff sustained injuries when the motor vehicle she was operating was struck by an underinsured motor vehicle. The vehicle that the plaintiff was operating was owned by her husband and was insured by Allstate. The tortfeasor's insurance carrier paid the plaintiff $50,000 in damages. Liberty Mutual, which insured another vehicle owned by the plaintiff, paid the plaintiff $25,233.23 in "no-fault" benefits under that policy. The plaintiff made demands on the defendants for underinsured motorist benefits. For reasons unrelated to the issues before the court, the arbitration of the claims against the defendants was delayed.
The claims were eventually arbitrated before two separate panels of arbitrators. The panels, however, had two arbitrators in common. Testimony was heard by the arbitrators in 1998. On July 26, 2000, both panels issued their awards. Both panels found that the plaintiff's injuries and resulting damages were caused solely by the negligence of the tortfeasor. The Allstate panel found that the plaintiff had $100,000 available in underinsured motorist coverage from Allstate. The Liberty Mutual panel found that the plaintiff had $300,000 available in underinsured motorist coverage from Liberty Mutual. Both panels found that the plaintiff's Social Security disability was not the result of the injuries she sustained in the accident and that the respondents were not entitled to a credit for such payments.
The Allstate panel further found: "Taking into consideration all offsets, credits and collateral sources to which the respondent is entitled, the plaintiff is awarded the sum of $13,750.00." The Liberty Mutual panel found: "Taking into consideration all offsets, credits and collateral sources to which the respondent is entitled, the plaintiff is awarded the sum of $16,016,67." The plaintiff then applied to this court to vacate, correct or modify the awards.
I
The plaintiff asserts that the awards should be vacated as untimely. This claim is frivolous.
General Statutes § 52-416(a) provides: "(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing."
The short answer to the plaintiff's argument on this point is that she consented, in writing, to an extension of time until August 18, 2000, for the arbitrators to render their decisions. The awards were rendered on July 26, 2000.
Moreover, the plaintiff did not prove that the hearings were completed in 1998, as she claims. As late as April 14, 2000, the plaintiff's attorney consented, in writing, to the submission of exhibits by Liberty Mutual and requested that the arbitrators permit him to offer an additional exhibit. He also requested an extension of time until June 16, 2000, to file his brief. Where briefs are contemplated, a hearing is not "completed" until all briefs are timely filed. Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984). At no time during the two years after which the plaintiff claims the hearings were closed, did she claim that the time for the arbitrators to render their decisions had expired. In these circumstances, the plaintiff waived any right to object to the untimeliness of the awards. See Diamond Fertiliser Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 553-54, 560 A.2d 419 (1989).
II
The plaintiff claims that the awards failed to conform to the submissions because the arbitrators did not state the plaintiff's gross damages before applying offsets and credits. The plaintiff argues that gross damages was a specific issue submitted for determination and necessary to determining the award after deducting contractually allowed offsets. As a result, the plaintiff argues, the arbitrators failed to conform their award to the submission and to the laws of the State of Connecticut, and so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
A court is authorized to vacate an arbitration award "if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the matter submitted was not made." General Statutes § 52-418(a)(4). "[I]n deciding whether arbitrators have `exceeded their powers,' as that phrase is used in § 52-418(d) [now § 52-418(a)(4)], courts need only examine the submission and the award to determine whether the award conforms to the submission." Norwich R.C. Diocesan Corporation v. Southern N.E. Contracting Co., 164 Conn. 472, 477, 325 A.2d 274 (1973). In an underinsured motorist arbitration, the submission is the arbitration clause in the insurance policy, read together with General Statutes § 38a-336 and the judicial gloss that has been placed on that statute from time to time. Aetna Casualty Surety Co. v. Lighty, 3 Conn. App. 697, 700-01, 491 A.2d 1118 (1985).
On February 3, 1986, when the plaintiff was injured by an underinsured motorist, General Statutes (Rev. 1985) § 38-175c, the predecessor to the current statute, § 38a-336, was in effect. General Statutes (Rev. 1985) § 38-175c provided:
(a)(1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, 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 of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured 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) to any insured occupying an uninsured or underinsured motor vehicle owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demanded is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on or after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals unless changed in writing by the insured.
(b)(1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured motorist coverage, exceed the limits of the insured's uninsured motorist coverage.
(2) For the purposes of this section, an `underinsured motor vehicle' means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of subsection (b) of this section.
The terms of the statute does not especially inform the issue of what the submissions were here.
After setting forth the maximum limits of liability and permissible reductions thereunder, Liberty Mutual's policy provided:
ARBITRATION
If we and a covered person do not agree:
1. Whether that person is legally entitled to recover damages under Part C; or
2. As to the amount of damages; the covered person may make a written demand for arbitration.
(Emphasis added.)
Allstate's policy provided: "[W]e will pay damages for bodily injury, sickness, disease or death which a person insured is legally entitled to recover from the owner or operator of an uninsured auto." (Emphasis added.) After setting forth numerous other provisions, including Allstate's limits of liability and allowable reductions therefrom, the Allstate policy further provided: "If the person insured or we don't agree on that person's right to receive any damages, or the amount, then at the written request of the person insured the dispute will be settled by arbitration." (Emphasis added in part.)
Clearly, both policies required the arbitrators to determine two issues: (1) whether the plaintiff was legally entitled to recover damages from the tortfeasor, and (2) the amount of damages.
"Legally entitled to collect damages from the owner or driver of an uninsured motor vehicle means that in order to recover under the policy, the plaintiff must prove: (1) that the other motorist was uninsured [or underinsured]; (2) that the other motorist was legally liable under the prevailing law; and (3) the amount of liability." (Footnote omitted; internal quotation marks omitted.) Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 367-68, 641 A.2d 783 (1994). However, because the phrase "legally entitled to recover damages" connotes an unrestricted submission; Carroll v. Aetna Casualty Surety Co., 189 Conn. 16, 19 n. 5, 20, 453 A.2d 1158 (1983); United States Fidelity Guaranty Co. v. Hutchinson, 244 Conn. 513, 520-21, 710 A.2d 1343 (1998); the arbitrators were not required to make any findings as to these three elements or any other subordinate facts. "The only requisite as to the form of the award is that the award be in writing and signed by the arbitrator or arbitrators, or a majority of them . . . [General Statutes] § 52-416(d). There is no rule of law requiring the arbitrators to make findings of fact. The award must simply contain the actual decision of the arbitrators. American Universal Insurance Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987) [('Unless required by the submission, the decision of the arbitrator need contain no more than the actual decision, and need not make reference to the specific claims of the parties')]; Von Langendorff v. Riordan, 147 Conn. 524, 527, CT Page 14269 163 A.2d 100 (1960); L'Manian v. American Motorists Insurance Co., 4 Conn. Cir. Ct. 524, 528, 236 A.2d 349 (1967); Millhaven v. Maryland Casualty, Superior Court, judicial district of Waterbury, Docket No. CV 91 0089088 (May 16, 1991, McWeeny, J.) ( 4 Conn. L. Rptr. 166)]. The decision need not explain the legal conclusions of the arbitrator." J. Berk M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (2d Ed. 1999) § 7.7.2.
Moreover, the "damages" that the defendants' arbitration clauses required the arbitrators to ultimately find were not the damages owed by the tortfeasor. If that were the case, claimants such as the plaintiff would be left without an award from the insurer because, in calculating the amount owed by the insurer, the regulations of the insurance commissioner authorize, and insurance policies such as those here invariably permit, certain offsets from the damages caused by the tortfeasor. "In this state an insurance policy, like any other contract, must be given a reasonable interpretation." Loika v. Aetna Casualty Surety Co., 44 Conn. Sup. 59, 67, 667 A.2d 1308, 12 Conn. L. Rptr. 8 (1994), aff'd. and adopted, 39 Conn. App. 714, 667 A.2d 78 (1995), 236 Conn. 902, 670 A.2d 32 (1996). The words "amount of damages" in both Liberty Mutual's and Allstate's policies refer to damages from each insurer. The arbitrators determined this issue. They were not required to separately determine the damages caused by the tortfeasor. The awards were within the submission.
III
The plaintiff claims that the awards failed to conform to the submission and to the law and were imperfectly executed because the arbitrators failed to decide which insurance policy was primary and which was secondary. This claim arises from the "other insurance" provisions in the defendants' policies and permissible setoffs under those policies. The plaintiff argues that the awards themselves demonstrate that the arbitrators misapplied the "other insurance" provisions of the policies in determining which policy was primary and which secondary, erroneously computed the available offsets and illegally permitted the insurers to deduct collateral source payments.
Unlike the plaintiff's prior claim discussed in part I, supra, which challenged the form of the award, this claim is that the arbitrators failed to properly interpret the insurance policies. "The court must first determine the standard it is required to apply in reviewing the decision of the arbitrators. This inquiry hinges on whether the arbitration was voluntary or compulsory, and, if voluntary, whether the submission was restricted or unrestricted. If the parties engaged in voluntary arbitration, the trial court's standard of review, provided that the submission was unrestricted, would be limited to whether the award conformed to the submission . . . If the parties engaged in voluntary, but restricted, arbitration, the trial court's standard of review would be broader depending on the specific restriction . . . If the parties engaged in compulsory arbitration . . . the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Zasun, 52 Conn. App. 212, 221-22, 725 A.2d 406 (1999).
At the time of the accident in which the plaintiff was injured, General Statutes (Rev. 1985) § 38-175c(a)(1) was in effect and provided in relevant part: "Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding." "`This provision, [our Supreme Court has] held, makes arbitration of insurance coverage issues compulsory.' (Emphasis in original.) Bodner v. United Services Automobile Assn., 222 Conn. 480, 488, 610 A.2d 1212 (1992)." Connecticut Ins. Guaranty Assn. v. Zasun, supra, 52 Conn. App. 222. Because both Allstate's policy and Liberty Mutual's policy contain an arbitration provision, arbitration of coverage was compulsory. Id.
In Quigley-Dodd v. General Accident Ins. Co. of America, 256 Conn. 225, 239, 772 A.2d 577 (2001), the Supreme Court refined the test for determining when an issue pertains to coverage or to damages. The court "conclude[d] that whether a question is a coverage issue does not turn on whether we are required to construe the insurance policy or governing law. Rather, we conclude that that question turns on whether the governing law that we are construing deals with the measure of damages that can be recovered from the tortfeasor . . . in which case the question is a damages issue, or with a limitation on the recovery of damages . . . in which case it is a coverage issue. As a corollary, we conclude that coverage issues, unlike damages issues, require us to determine the respective rights and obligations of the parties to a contract of insurance, as such." (Emphasis in original.) Id., 239. "The essential point is that when the focus is on tort law governing the right to recover damages from the uninsured motorist or the measure of such damages, the issue is a damages issue, and when the focus is on law governing recovery against an insurer as such, the issue is a coverage issue. A damages issue is not converted into a coverage issue simply because the arbitrators are required, as a preliminary matter, to determine which state's law governs the measure of damages." Id., 242.
Under this analysis, the issue of whether the arbitrators misconstrued the "other insurance" provisions of the policies and the items that were permissible setoffs or deductions was an issue of coverage. This is because these issues ordinarily require arbitrators to focus on the law governing recovery against the insurer. Indeed, they generally require arbitrators to examine, interpret and apply provisions of one or more insurance policies. See Quigley-Dodd v. General Accident Ins. Co. of America, supra, 256 Conn. 241; Aetna Casualty Surety Co. v. CNA Ins. Co., 221 Conn. 779, 606 A.2d 990 (1992) (determination of which insurer's policy was primary, in light of conflicting "other insurance" provisions in each insurer's policy afforded de novo review); Wilson v. Security Ins. Co., 213 Conn. 532, 536-39, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S.Ct 52, 112 L.Ed.2d 28 (1990), cert. denied, 502 U.S. 1005, 112 S.Ct. 640, 116 L.Ed.2d 658 (1991) (whether, under the governing insurance regulations, the insurer was entitled to a setoff for workers' compensations payments to the claimant afforded de novo review); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987) (whether insurer could reduce claimant's recovery by amount paid claimant by a particular type of third party afforded de novo review).
The issues raised by the plaintiff are deemed coverage issues and in 1985, as now, the arbitration of coverage issues was statutorily mandated. Thus, the court sets "forth our standard of review of a statutorily mandated or compulsory arbitration award. When an arbitration panel's interpretation and application of the law is at issue, [a court] . . . must conduct a de novo review. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); Chmielewski v. Aetna Casualty Surety Co., 218 Conn. 646, 655 n. 11, 591 A.2d 101 (1991). Middlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 576, 609 A.2d 1008 (1992), aff'd., 225 Conn. 257, 622 A.2d 572 (1993); see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987). Conversely, the appropriate standard of review of the factual findings of an arbitration panel is the substantial evidence test. Chmielewski v. Aetna Casualty Surety Co., supra, 656. Pursuant to this test, the reviewing court must determine whether there is substantial evidence in the record to support the arbitrators' findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Zasun, supra, 52 Conn. App. 223.
A
The plaintiff claims that the arbitrators improperly reduced the coverage available to her or improperly reduced the awards by "collateral sources" other than the amount paid to her on behalf of the tortfeasor and by the amount paid to her under Liberty Mutual's no-fault benefits.
The accident occurred on February 3, 1986, nearly seventeen years ago. At that time, except in medical malpractice actions, Connecticut subscribed to "the collateral source rule, which provides that benefits received by a plaintiff from a source wholly collateral to and independent of the tortfeasor will not diminish the damages otherwise recoverable." Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 579, 271 A.2d 94 (1970).
See Public Acts 1985, No. 85-574, codified as General Statutes (Rev. 1985) § 52-225a.
Subsequent to the plaintiff's accident, Public Acts No. 86-338 enacted General Statutes § 52-225a, which generally abolishes the collateral source rule in all personal injury actions. See Alvarado v. Black, 248 Conn. 409, 416-17, 728 A.2d 500 (1999).
The collateral source rule, however, focuses on the law governing the right to recover damages from the uninsured motorist. The basis of the "rule is that a wrongdoer shall not benefit from an outside source." (Emphasis added; internal quotation marks omitted.) Rametta v. Stella, 19 Conn. App. 223, 228, 562 A.2d 67 (1989), aff'd., 214 Conn. 484, 572 A.2d 978 (1990). Because the collateral source rule focuses on damages recoverable from the tortfeasor, it is not a coverage issue and is not afforded de novo review. Further, since the submissions are unrestricted, the arbitrators' decisions with respect to the collateral source rule are "considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact." American Universal Ins. Co. v. DelGreco, supra, 205 Conn. 186.
B.
The crux of the plaintiff's application to vacate is that the arbitrators improperly failed to determine which of the defendants' policies was primary and which was secondary or excess. The plaintiff argues that this error diminished the total amount of her award. The defendants argue that the arbitrators were permitted to, and in fact, did adopt an agreement that the defendants made regarding this issue, which they recited at the hearing and in their trial briefs to the arbitrators, and that the plaintiff was not prejudiced thereby. In the agreement, the defendants stipulated that any award would be prorated between the insurers based on their respective policy limits. The court agrees with the plaintiff.
Because the determination of the "other insurance" provisions is clearly a coverage issue, the court reviews the issue de novo.
The "other insurance" clause in Liberty Mutual's policy provided: "If there is other applicable similar insurance, we will not pay for any damages which would duplicate any payment made for damages under such similar insurance. However, any insurance we provide with respect to a vehicle you do not own, to which other similar insurance is applicable, shall be excess over such other applicable insurance."
The other insurance provision in Allstate's policy provided: "If there is other insurance[:] If the injured person was in, on, getting into or out of a vehicle which is insured for this coverage under another policy, this coverage will be excess. This means that when the injured person is legally entitled to recover damages in excess of the other policy limit, we will pay up to your policy limit, but only after all other collectible insurance has been exhausted." (Emphasis in original.)
Liberty Mutual's policy further provided:
The limit of liability shall be reduced by all sums:
1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This included all sums paid under Part A; and
2. paid or payable because of the bodily injury under any of he following or similar law:
a. workers' compensation law; or
b. disability benefits law.
Any payment under this coverage will reduce any amount that person is entitled to recover under Part A.
Liberty Mutual's policy also provided that "no one will be entitled to receive duplicate payments for the same elements of loss."
Allstate's policy similarly provided:
The limits of this coverage will be reduced by:
(1) all amounts paid by the owner of operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other auto policy.
(2) all amounts paid or payable under any workers' compensation law, disability benefits law, or similar law.
Damages payable under this coverage will be reduced by all amounts payable under Automobile Medical Payments, Basic Reparations Benefits, Added Reparations Benefits, or any similar auto medical payments coverage.
1.
At the hearing before the arbitrators, and in their respective trial briefs to the arbitrators, the defendants represented that they had agreed that any award would be prorated between them such that Liberty Mutual, whose policy limit was $300,000, would pay 75 percent and Allstate, whose policy limit was $100,000, would pay 25 percent.
In its trial brief to this court, Allstate states that ultimately, "the insurers agreed to prorate the loss, as permitted by the Connecticut Supreme Court in Aetna Casualty Surety Company v. CNA Insurance Co., 221 Conn. 779 (1992).
"Though the Allstate and Liberty Mutual were initially unsure of their respective rights, as neither counsel had the applicable insurance policy of the other insurer, Liberty Mutual and Allstate amicably resolved this issue. As Allstate had $100,000.00 of applicable underinsured motorist coverage, the insurers agreed to divide any award 25 percent Allstate and 75 percent Liberty Mutual. This was agreed to by the insurers . . ." (Emphasis in original.)
In Aetna Casualty Surety Co. v. CNA Ins. Co., supra, 221 Conn. 785, which Allstate cites, the court stated that "[w]hen the insured is afforded full indemnification for a loss, there is no public policy issue controlling how insurers divide coverage among themselves." Although the court made this statement in the context of a discussion of the validity of other insurance provisions, and did not refer to ad hoc agreements by insurers as to the apportionment of damages, the court agrees that, as with any issue of law, the ultimate question is whether the plaintiff was prejudiced by the defendants' agreement. Cf. id. ("If the enforcement of the [other insurance] clauses would not produce adverse consequences for the insured, then the clauses should be enforced as written").
The arbitrators clearly did adopt the defendants' agreement and apportioned the award based on the defendants' respective policy limits of $300,000 for Liberty Mutual and $100,000 for Allstate. Of course, the award of $16,016.67 is not a multiple of the $13,750.00 award against Allstate. Rather, based on these awards, the arbitrators, to a mathematical certainty: (1) found that the total damages suffered by the plaintiff was $105,000, (2) deducted from this amount the $50,000 paid on behalf of the tortfeasor, leaving a remainder of $55,000, (3) apportioned this sum on the basis of the parties' agreement so that 1/4, or $13,750.00, was allocated to Allstate, (4) deducted from the remaining $41,250.00 allocated to Liberty Mutual the $25,233.23 no-fault payment made by Liberty Mutual, leaving a balance of $16,016.77. The awards produced by this calculus are the very awards rendered by the arbitrators nearly to the penny. "This court cannot ignore what is obvious." Wilson v. Wayne County, 856 F. Sup. 1254, 1264 (M.D.Tenn. 1994), cert. denied, 525 U.S. 811, 119 S.Ct 43, 142 L.Ed.2d 34 (1998).
The actual amount of the award against Liberty Mutual is 10 cents less, clearly owing to a minor error in subtraction.
It is theoretically possible, though there is no evidence whatsoever to support the possibility, that the arbitrators could have found that the plaintiff sustained total damages in excess of $105,000 and erroneously reduced that figure by collateral source payments in violation of the collateral source rule then in effect. See Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 271 A.2d 94 (1970). As discussed in part IIIA, supra, such a misapplication, even if it occurred, is not reviewable here. What is certain is that it is from the figure of $105,000 that the arbitrators deducted the payment made on behalf of the tortfeasor, apportioned the remaining damages between the defendants on the basis of their ad hoc agreement, and further reduced Liberty Mutual's portion of damages by the amount it had paid the plaintiff in no-fault benefits. Even if the plaintiff's actual damages had been greater than $105,000, this would not change the court's analysis or its conclusions.
2.
The court next addresses what the award would have been had the arbitrators properly interpreted and enforced the other insurance clauses in the defendants' policies.
"We begin our review of the `other insurance' provisions in the Aetna and CNA policies by noting that [t]he rule in Connecticut is that an insurance policy, like any other contract, must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning . . . The general rules of contract construction, therefore, apply when construing the terms of an insurance policy. Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Citations omitted; internal quotation marks omitted.) Aetna Casualty Surety Co. v. CNA Ins. Co., supra, 221 Conn. 786.
The "other insurance" provision in Allstate's policy provides: "If there is other insurance[:] If the injured person was in, on, getting into or out of a vehicle which is insured for this coverage under another policy, this coverage will be excess. This means that when the injured person is legally entitled to recover damages in excess of the other policy limit, we will pay up to your policy limit, but only after all other collectible insurance has been exhausted." (Emphasis in original.)
However, the plaintiff was not injured in, on, getting into or out of a vehicle which was insured for uninsured/underinsured motorist coverage under another policy. Allstate and only Allstate insured the car that the plaintiff was operating when she was injured. Therefore, under the very terms of its other insurance clause, Allstate's coverage was not excess.
Liberty Mutual's other insurance clause provides: "If there is other applicable similar insurance, we will not pay for any damages which would duplicate any payment made for damages under such similar insurance. However, any insurance we provide with respect to a vehicle you do not own, to which other similar insurance is applicable, shall be excess over such other applicable insurance."
Under the second sentence of Liberty Mutual's other insurance clause, its coverage is clearly excess, since its insurance is being provided to a vehicle which the plaintiff did not own. The policies themselves, therefore, dictate, that Allstate's policy be primary and that Liberty Mutual's policy be excess. See Aetna Casualty Surety Co. v. CNA Ins. Co., supra, 221 Conn. 787.
As discussed supra, algebraic logic compels the conclusion that the arbitrators found that the plaintiff had sustained damages of $105,000.00. Had the arbitrators properly construed and given effect to the defendants' other insurance clauses, they would have found that Allstate's policy was primary. Allstate's policy limits for underinsured motorist coverage was $100,000. From this limit, Allstate, as the primary insurer, was entitled, under the provisions of its policy and the applicable insurance regulations, to deduct the $50,000.00 paid to the plaintiff on behalf of the tortfeasor. See Loika v. Aetna Casualty Surety Co., supra, 44 Conn. Sup. 70. That, however, is the only offset to which Allstate would have been entitled. Liberty Mutual, as the excess carrier, would have been responsible for the remaining $5,000.00 of damages. Having paid the plaintiff no-fault benefits of $25,233.22, Liberty Mutual would have been entitled to offset the entire $5,000.00. The plaintiff's award would have been $50,000.00 against Allstate.
Solely because the arbitrators adopted the defendants' agreement to prorate the loss, the combined awards totaled $29,766.67. Had the arbitrators properly interpreted and enforced the defendants' other insurance clauses, the award would have been $50,000.00 against Allstate. The plaintiff was prejudiced by the arbitrators' incorrect determination of this coverage question.
IV
There remains the question of how this court should resolve the plaintiff's application. That application sought to vacate, modify or correct the awards.
General Statutes § 52-419, which authorizes the modification of an award provides:
(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.
"Although the language of § 52-419(a) can be read narrowly, the court's role of renewing the legal determinations of arbitrators de novo and their factual determinations under the substantial evidence standard requires that the statute be given a more expansive meaning, so as to encompass this case, where the court properly upheld the arbitrators' factual findings and properly reversed their legal determination. Unlike the court's more limited rule in reviewing voluntary arbitration awards, where the court in most cases simply compares the award to the submission, in a compulsory arbitration case the court must have the authority to enter an appropriate order modifying the award so as to reflect those factual findings and that legal determination, and thus to effect the intent of the award as it should have been rendered under the law and to promote justice between the parties. General Statutes § 52-419(b). Otherwise, the legislature's purposes in entrusting uninsured motorist coverage matters to compulsory arbitration under § 38-175c [now § 38a-336] would be frustrated." Chmielewski v. Aetna Casualty Surety Co., supra, 218 Conn. 679.
Here, the arbitrators necessarily found that the plaintiff had sustained damages of $105,000.00, and that credits for the payment made on behalf of the tortfeasor and for Liberty Mutual's no-fault payment were warranted. Reviewing the coverage questions de novo, the only conclusion that flows from these findings is that the plaintiff was entitled to damages from Allstate in the amount of $50,000.00 and no damages from Liberty Mutual.
The application is granted insofar as it seeks modification of the awards. The awards are modified to the extent that the plaintiff shall recover $50,000 from Allstate and $0.00 from Liberty Mutual.
BRUCE L. LEVIN, JUDGE OF THE SUPERIOR COURT