Opinion
No. CV03-0081699S
May 3, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #115
In this action, the plaintiffs, George Lucido, Jr. and Thomas N. Domingue, Jr., seek to recover uninsured motorist coverage from the defendant, Zurich Insurance Company, now known as Zurich American Insurance Company (Zurich), for damage allegedly incurred during the course of their employment with Orange Landscaping, Inc. On June 23, 2005, the plaintiffs filed a two-count amended complaint against the defendant. Also named as a defendant is George Reider, Insurance Commissioner.
The original complaint was filed on April 23, 2003. On June 30, 2003, Zurich filed a request to revise the original complaint. On July 25, 2003, the plaintiffs filed an objection to the request to revise, which was overruled by the court, Carroll, J., on November 24, 2003. On May 27, 2005, the plaintiffs filed a request for leave to amend their complaint, to which Zurich objected on June 7, 2005. On June 23, 2005, the plaintiffs again filed a request for leave to amend their complaint, which was not objected to within the fifteen-day period provided by Practice Book § 10-60(a)(3). Therefore, the amended complaint of June 23, 2005 is operative.
In count one, the plaintiff alleges that Eugenia M. Kowats, a nonparty, collided with a vehicle operated by Domingue, in which Lucido was a passenger. It is further alleged that because of the negligence of Kowats, Lucido suffered injuries, including damages flowing from his inability to return to work with Orange Landscaping, which were inadequately covered by Kowats's motor vehicle liability insurance policy. As a result, the plaintiff alleges that Zurich is legally responsible for the injuries and losses sustained by Lucido pursuant to the uninsured motorist provisions of an insurance contract between Zurich and Orange Landscaping and in accordance with General Statutes § 38a-336. In count two, the plaintiff incorporates paragraphs one through ten of count one and seeks the same relief for similar injuries and damages on behalf of Domingue.
On October 14, 2005, Zurich filed a motion for summary judgment pursuant to Practice Book § 17-44, accompanied by a memorandum of law in support as required by Practice Book § 11-10(5). In support of its motion for summary judgment, Zurich relies on a sworn affidavit by Patrick Yardley, a litigation specialist with Zurich. On January 20, 2006, the plaintiffs filed a memorandum in opposition, accompanied by a photocopy of the sworn affidavit of Lucido and a photocopy of an uncertified excerpt of an insurance policy purported to represent a portion of the policy between Zurich and Orange Landscaping. Finally, on February 6, 2006, the plaintiffs filed a supplemental memorandum in opposition, accompanied by a photocopy of a letter from the plaintiffs' counsel to Zurich's counsel, and an additional uncertified excerpt of an insurance policy purported to represent a portion of the policy between Zurich and Orange Landscaping.
The motion for summary judgment filed on October 14, 2005, was filed by fax. Subsequently, Zurich filed a duplicate copy of the motion for summary judgment by mail on October 18, 2005. As the two copies are identical, they will be considered simultaneously.
"[B]efore 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 . . . 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." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). The evidence submitted by the plaintiffs contains a photocopy of the sworn affidavit of Lucido. Section 10-2 of the Connecticut Code of Evidence provides in relevant part that "[a copy of a writing, recording or photograph is admissible to the same extent as an original unless . . . a genuine issue is raised as to the authenticity of the original or the accuracy of the copy . . ." Zurich has not raised any issues regarding the genuineness of the affidavit so the photocopy is properly before the court. The plaintiffs also submitted a photocopied excerpt of an insurance policy purported to represent the insurance policy between Zurich and Orange Landscaping in force at the time of the alleged accident. Although Zurich has not objected to the introduction of this evidence, there is no preliminary showing of the document's genuineness. In fact, the document does not bear the name of the insurer or the insured, so there is no way for the court to determine if the document is what the plaintiffs claim it to be as required by New Haven v. Pantani, supra, 89 Conn.App. 679. The photocopied excerpt, therefore, is not properly before the court and will not be considered. This does not, however, significantly impact the plaintiffs' objection to the motion for summary judgment since, as discussed infra, the court finds that the affidavit of Lucido is sufficient to create a genuine issue of material fact.
The evidence submitted in support of the plaintiffs' supplemental memorandum in opposition was not objected to by Zurich, but, as discussed in footnote 3, the plaintiffs have made no preliminary showing of the documents' genuineness as required by New Haven v. Pantani, supra, 89 Conn.App. 679. While the letter between the plaintiffs' counsel and Zurich's counsel was submitted to show that the plaintiffs filed a request for arbitration, the photocopied excerpt of the insurance policy does not bear the name of the insurer or the insured. It is impossible for the court to determine if the document is what the plaintiffs claim it to be as required by New Haven v. Pantani, supra, 89 Conn.App. 679. Therefore, the evidence is not properly before the court and will not be considered. As discussed in footnote 3, however, this does not significantly impact the plaintiffs' objection to the motion for summary judgment since the court finds that the affidavit of Lucido is sufficient to create a genuine issue of material fact.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"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 . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005).
Zurich argues that at the time of the accident, the vehicle occupied by the plaintiffs was owned and operated by Domingue, not Orange Landscaping. Zurich further contends that at the time of the accident, Orange Landscaping did not list that vehicle as an insured vehicle and Zurich maintains that there was no insurance coverage in effect by Zurich for the vehicle occupied by the plaintiffs.
At oral arguments on the motion for summary judgment, the plaintiffs argued that Lucido's affidavit creates an issue of material fact since Lucido avers in that affidavit that Orange Landscaping asked Domingue to use his vehicle for transportation to and from job sites and that Orange Landscaping's insurance policy with Zurich covers the use of other vehicles.
The plaintiffs also argue in their memoranda in opposition that it is not ordinarily proper to resolve issues of negligence on a motion for summary judgment and that the insurance policy contains a binding arbitration clause, which requires the issue of coverage to be determined by an arbitrator. As the court finds that the affidavit of Lucido raises a genuine issue of material fact it is not necessary to address these arguments.
The provision of Connecticut's uninsured and underinsured motorist coverage relevant to the resolution of this case is found in General Statutes § 38a-336. "[Section] 38a-336(f) provides: Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured's otherwise applicable uninsured and underinsured motorist coverage." (Emphasis in original; internal quotation marks omitted.) Gomes v. Massachusetts Bay Ins. Co., 87 Conn.App. 416, 424, 866 A.2d 704, cert. denied, 273 Conn. 925, 871 A.2d 1031 (2005). Additionally, "our uninsured and underinsured motorist statute is remedial in nature and designed to protect people injured by [uninsured and underinsured] motorists . . . [and] remedial statutes should be construed liberally in favor of those whom the law is intended to protect." (Internal quotation marks omitted.) Id., 426.
In the present case, Lucido avers in his affidavit that he was an employee of Orange Landscaping in December of 2000 and that Orange Landscaping "requested [that the plaintiffs] use their own motor vehicles for transportation to and from job sites and orally represented to [the plaintiffs] that if [the plaintiffs] had to use [their] own motor vehicles to go to and from job sites, [they] would be covered under . . . Orange Landscaping's motor vehicle insurance policy." (Memorandum in opposition, Lucido Affidavit [Lucido affidavit], ¶¶ 1-2.) Lucido further states that at the time of the accident, Orange Landscaping had a contract of insurance with Zurich, which included coverage for uninsured and underinsured motorist benefits. (Lucido affidavit, ¶ 3.) Finally, Lucido avers that it was his understanding that by using their personal vehicles, the plaintiffs' vehicles were temporary substitute vehicles and he avers that Orange Landscaping's insurance policy covered anyone occupying a temporary substitute for a covered auto. (Lucido affidavit, ¶¶ 7-8.) Notwithstanding the affidavit of Patrick Yardley, which avers that Zurich had no contract of insurance that covered the plaintiffs or the vehicle operated by Domingue (memorandum in support, Yardley affidavit, ¶¶ 4-7); Lucido's affidavit is sufficient to create a genuine issue of material fact. His statements, taken in the light most favorable to the nonmoving party, create an issue as to whether the plaintiffs, at the time of the accident, were "employee[s] of a named insured injured while occupying a covered motor vehicle in the course of employment . . ." § 38a-336(f).
For the foregoing reasons, the defendant's motion for summary judgment is denied.