Opinion
NNHCV166066153
07-05-2018
Eric MENSAH v. FINKLE IV FREIGHT AND LOGISTICS, INC. et al.
UNPUBLISHED OPINION
OZALIS, J.
I.
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiff in this action is Eric Mensah and the defendants are Finkle IV Freight and Logistics, Inc. (Finkle Freight), Volel Jean-Francois (Jean-Francois), Sonia Martinez-Chevere (Chevere) and the Church Mutual Insurance Company (Church Mutual).
On November 14, 2016, the plaintiff, Eric Mensah, filed a two-count complaint alleging the following facts. On November 2, 2014, the plaintiff exited his vehicle in the center median of Interstate 91 to help the occupants of a disabled vehicle that had been operated by the defendant Chevere. The defendant Jean-Francois, who was operating a tractor-trailer as the agent and employee of the defendant Finkle Freight, then lost control of his vehicle and struck the Chevere vehicle and the plaintiff’s vehicle. The plaintiff was struck by his vehicle, causing him injuries. In the first count of his complaint, the plaintiff alleges that his injuries were caused by the negligence of Finkle Freight’s driver, Jean-Francois. In the second count of his complaint, the plaintiff alleges that his injuries were caused by Chevere.
On April 13, 2017, the plaintiff amended his complaint to add a third count against Church Mutual, which alleges the following facts. At the time when his injuries were incurred, the plaintiff had an insurance policy in effect with Church Mutual that included uninsured motorist coverage. The Chevere vehicle was uninsured, and an unidentified vehicle that hit the Chevere vehicle was also alleged to be uninsured. The plaintiff claims his injuries were caused by the negligence of both Chevere and the unidentified driver. The plaintiff further claims that Church Mutual has refused to provide coverage to the plaintiff, in breach of its obligations under the insurance policy.
Pending before the court is Church Mutual’s motion for summary judgment filed on December 11, 2017. In support of its motion, Church Mutual submitted a memorandum of law with exhibits attached. On January 22, 2018, the plaintiff filed a memorandum of law in opposition to Church Mutual’s motion for summary judgment and supporting exhibits. Church Mutual subsequently filed a reply brief in further support of its motion for summary judgment. The court heard oral argument on the matter on March 26, 2018.
II.
DISCUSSION
"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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
Church Mutual argues that it is entitled to judgment as a matter of law on three grounds. First, under New York law, which is applicable because the plaintiff is a New York resident and the action concerns an insurance policy issued to a New York entity, the plaintiff does not qualify for uninsured benefits because he was not "occupying" the vehicle at the time of the accident as required under the policy. Second, Church Mutual claims that, according to the policy, in order for a vehicle to be an uninsured vehicle, bodily injury must result from its "maintenance or use." According to Church Mutual, because the plaintiff’s injuries do not result from Chevere’s or the unidentified driver’s "maintenance or use" of their vehicles, the plaintiff does not qualify for uninsured benefits. Third, Church Mutual argues that the plaintiff is not entitled to uninsured benefits because in order for the unidentified vehicle to qualify as an uninsured vehicle under the policy, it must have made physical contact with the insured, which did not happen here. The plaintiff counters that the granting of summary judgment for Church Mutual is inappropriate because the plaintiff was occupying the vehicle at the time of the accident, and because the physical contact requirement is met.
At oral argument on this motion and in his opposition memorandum to this motion for summary judgment, the plaintiff conceded that New York law applies to the instant matter. (Plaintiff’s Mem. Opp. p. 3.) The court agrees that New York law applies. See General Accident Ins. Co. v. Mortara, 314 Conn. 339, 101 A.3d 942 (2014) (applying the most significant relationship approach of 1 Restatement [Second], Conflict of Laws [1971] for analyzing choice of law issues involving contracts).
At oral argument on this motion, Church Mutual conceded that genuine issues of material fact exist as to whether the plaintiff was occupying the vehicle at the time of the accident. Accordingly, Church Mutual’s motion for summary judgment on this ground is denied. The court will therefore address Church Mutual’s two remaining arguments.
See also Mensah Dep. p. 84 ("I was exiting. All that I remember was I was exiting from the car").
1. Ownership, Use and Maintenance of Vehicle
Church Mutual claims that the Chevere vehicle and the unidentified vehicle do not qualify as uninsured vehicles under the plaintiff’s insurance policy because the plaintiff’s injuries do not result from Chevere’s or the unidentified driver’s "maintenance or use" of the vehicle as that term is defined in Zaccari v. Progressive Northwestern Ins. Co., 35 A.D.3d 597, 827 N.Y.S.2d 204, 206 (2d Dep’t 2006): "In the context of automobile liability insurance coverage, whether an accident has resulted from the use or operation of a covered automobile requires consideration of a three-part test: (1) The accident must have arisen out of the inherent nature of the automobile, as such; (2) The accident must have arisen within the natural territorial limits of an automobile, and the actual use, loading, or unloading must not have terminated; and (3) The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury." (Emphasis added; internal quotation marks omitted.)
The facts of Zaccari are distinguishable, however, from the present case. In Zaccari, the court was examining liability coverage provisions of a driver’s insurance policy that limited coverage to accidents arising out of the "use or operation" of the motor vehicle. Id. Unlike the policy provisions discussed in Zaccari, the policy language at issue in the present action defines an uninsured motor vehicle as "a motor vehicle that, through its ‘ownership, maintenance or use,’ results in bodily injury to an insured ..." (Def.’s Mem. in Supp. of Summ. Judg., Ex. A, New York Supplementary Uninsured/Underinsured Motorists Endorsement p. 1, § 1c.) This court finds that there is uninsured motorist coverage for the Chevere vehicle under the Church Mutual policy as the plaintiff suffered bodily injury arising from, at a minimum, Chevere’s ownership of her vehicle. Accordingly, as the Chevere vehicle is an uninsured motor vehicle under the Church Mutual policy, Church Mutual’s motion for summary judgment as to the Chevere vehicle is denied on this ground.
This court, however, finds that the unidentified vehicle is not an uninsured vehicle as defined under the Church Mutual policy. Uninsured motorist coverage does not arise from the unidentified vehicle as the unidentified vehicle’s ownership, use or maintenance did not result in bodily injury to plaintiff. Although the unidentified vehicle allegedly collided with the Chevere vehicle, it is not alleged to have come into direct physical contact with the plaintiff. Nor is the unidentified vehicle alleged to have caused the Chevere vehicle to involuntarily collide with the plaintiff. Accordingly, as the unidentified vehicle is not an uninsured motor vehicle under the Churh Mutual policy, Church Mutual’s motion for summary judgment as to the unidentified vehicle is granted on this ground.
2. Physical Contact Requirement
Church Mutual next argues that the unidentified vehicle is not an uninsured motor vehicle under the policy because it did not make physical contact with the insured. The plaintiff counters that the physical contact requirement is met in the present case.
In order for an insured to be entitled to uninsured motorist benefits in a hit-and-run cause of action in New York, the hit-and-run vehicle must make physical contact with the insured. See Hanover Ins. Co. v. Lewis, 57 A.D.3d 221, 868 N.Y.S.2d 640, 641 (1st Dep’t 2008) (holding that insured was required to make physical contact with hit-and-run vehicle in order to be entitled to uninsured motorists benefits); Interboro Ins. Co. v. Coronel, 54 A.D.3d 342, 863 N.Y.S.2d 448, 449-50 (2d Dep’t 2008) (same); Merchants Mut. Ins. Group v. Idore, 10 A.D.3d 612, 781 N.Y.S.2d 674, 675 (2d Dep’t 2004) (same); Eagle Ins. Co. v. Watanabe, 171 A.D.2d 451, 567 N.Y.S.2d 34, 34-35 (1st Dep’t 1991) (same).
An insured, however, need not prove direct physical contact with a hit-and-run driver in order to be entitled to uninsured motorist benefits. MVAIC v. Eisenberg, 18 N.Y.2d 1, 271 N.Y.S.2d 641, 644, 218 N.E.2d 524 (1966). "Under Insurance Law § 5217, physical contact is a condition precedent to an arbitration based upon a hit-and-run accident which involve[s] an unidentified vehicle. However, direct contact between the respondents’ vehicle and the unidentified vehicle is not necessary to satisfy the physical contact requirement where ... the collision involve[s] multiple vehicles, and the accident originate[s] from a collision with the unidentified vehicle ..." (Citations omitted.) Allstate Ins. Co. v. Basdeo, 273 A.D.2d 466, 710 N.Y.S.2d 111, 112 (2d Dep’t 2000). Where there is no direct physical contact between a hit-and-run driver and an insured, the physical contact requirement is satisfied if a hit-and-run vehicle causes an involuntary intermediary to collide with the insured. New York City Health & Hospitals Corp. v. Degorter, 133 Misc.2d 93, 506 N.Y.S.2d 644, 645-46 (1986).
In the present matter, the physical contact requirement is not met with respect to the unidentified vehicle. Although the unidentified vehicle allegedly collided with the Chevere vehicle, it is not alleged to have come into direct physical contact with the plaintiff. Nor is the unidentified vehicle alleged to have caused the Chevere vehicle to involuntarily collide with the plaintiff. Instead, the Chevere vehicle is alleged to have been abandoned on the highway in a negligent fashion, thereby causing the plaintiff’s injuries.
Based on the foregoing, this court finds that the unidentified vehicle is not an uninsured motor vehicle under the plaintiff’s insurance policy as it did not make physical contact with the plaintiff and Church Mutual’s motion for summary judgment as to the unidentified vehicle is granted on this ground.
III.
CONCLUSION
For the foregoing reasons, Church Mutual’s motion for summary judgment is granted in part and denied in part. Church Mutual’s motion for summary judgment is denied as to the third count of the plaintiff’s amended complaint relating to uninsured benefits arising from the Chevere vehicle. Church Mutual’s motion for summary judgment is granted as to the third count of the plaintiff’s amended complaint relating to uninsured benefits arising from the unidentified driver’s vehicle.