Opinion
No. CV00 037 90 94 S
May 17, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#138)
This action arises from a dispute involving uninsured motorist insurance coverage after an auto accident. The undisputed facts are as follows. On November 20, 1997, the plaintiff, Raymond Ocasio, and his daughter, Jennifer Ocasio, were traveling on Interstate 95 in New York. The plaintiff was a passenger and his daughter was driving. The vehicle was insured by Nationwide Mutual Insurance Company (Nationwide). The plaintiff was also an insured with the defendant, Infinity Insurance Company (Infinity). An unidentified truck carrying scrap metal was also being driven in the same direction. A piece of scrap metal fell from the truck and went through the vehicle's window, injuring the plaintiff The plaintiff has recovered $50,000 from Nationwide in medical benefit payments under New York no-fault coverage insurance law. He also recovered $25,000 from Nationwide under his uninsured motorist liability coverage, for a total recovery of $75,000.
The Nationwide policy limits for uninsured motorist liability coverage are $25,000 per person and $50,000 per accident.
On November 20, 2000, the plaintiff filed a two-count complaint against Nationwide and Infinity for refusing to pay the uninsured motorist coverage benefits to the plaintiff as provided by both insurance policies. The Infinity policy limits for uninsured motorist liability coverage were $50,000 per person and $100,000 per accident. Infinity has filed a motion for summary judgment, along with a supporting memorandum of law. The plaintiff has not filed an objection to Infinity's motion for summary judgment, nor has he provided any supporting memorandum of law, affidavits or other evidence that would raise any genuine issues of material fact. When a party moves for summary judgment, "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). Summary judgment must, therefore, be granted in favor of Infinity if it is entitled to judgment as a matter of law.
Infinity has also filed a copy of the Nationwide insurance policy declarations page, which included the policy's liability limits; a copy of the Infinity insurance policy declarations page along with the policy liability limits; excerpts of the plaintiff's answer to interrogatories and a certified copy of Part III of the Infinity insurance policy dealing with uninsured motorist coverage.
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). 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "The existence of [a] genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
Infinity argues that because the plaintiff received $50,000 from Nationwide in medical payments and $25,000 from Nationwide under its uninsured motorist coverage, that the total $75,000 received exceeds the $50,000 uninsured motorist limits under its policy. Infinity's liability would, therefore, be reduced to zero.
"The subject matter involved in the present case is uninsured motorist insurance, the purpose of which is to place the insured in the same position as . . . the insured would have been had the [uninsured] tortfeasor been fully insured . . . It is well established that the public policy derived from the uninsured motorist legislation 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 607-08, 767 A.2d 1202 (2001). "Traditionally, an action against an uninsured motorist carrier is one for insurance benefits and not for damages per se . . . [I]n certain contexts, because of the hybrid nature of uninsured motorist coverage, the uninsured carrier operates in part as a surrogate for the financially irresponsible tortfeasor." (Citations omitted; internal quotation marks omitted.) Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 732, 778 A.2d 899 (2001).
"Such insurance does not grant an injured party an enhanced right of recovery, beyond the recovery that would have been available had the tortfeasor maintained sufficient insurance." Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 366-67, 641 A.2d 783 (1994). "It is a time-honored rule that an injured party is entitled to full recovery only once for the harm suffered . . . An insured may not recover double payment of damages under overlapping insurance coverage." (Citation omitted; internal quotation marks omitted.) Buell v. American Universal Ins. Co., 224 Conn. 766, 775, 621 A.2d 262 (1993). "The social policy behind this concept is that it is a waste of society's economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste." (Emphasis in original; internal quotation marks omitted.) Fahey v. Safeco Ins. Co. of America, Inc., 49 Conn.App. 306, 310, 714 A.2d 686 (1998).
General Statutes § 38a-336(b) provides in relevant part: "An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured 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 and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage." (Emphasis added.).
The provisions of the Infinity insurance policy setting the limits of liability for uninsured motorist coverage provides in part: "Any amounts otherwise payable for damages under this coverage shall be reduced by all sums paid or payable under any medical payments coverage applicable for the same elements of loss." Both the general statutes and the express policy provisions, therefore, include payments recovered from all policies, even those for medical payment coverage, when determining whether uninsured motorist insurance payments may be owing.
The present case is somewhat analogous to Vitanza v. Amica Mutual Ins. Co., 76 Conn.App. 570, 580-82, 820 A.2d 324 (2003). In Vitanza, the plaintiff, a Connecticut resident, was injured in the state of New York and filed claims against the defendant and another insurance company. The defendant was required to make reparations payments under the law of New York and claimed that it was entitled to setoff reductions to its uninsured motorist policy under the provisions of § 38a-334-6(d)(2) of the Regulations of Connecticut States Agencies, permitting reductions for medical expenses. In Vitanza, however, the defendant's insurance policy did not explicitly provide for reductions for medical payments. The court stated: "If an insurer wishes to reduce its payment obligations as set forth in the regulations [and the statutes], it must provide for the reductions by the appropriate policy language . . . If it fails to do so, the insurer will not obtain the reduction." (Internal quotations marks omitted.) Id., 581. In the present case, the language found in the defendant's policy does state that it is entitled to a reduction in its liability for medical payments already made by Nationwide.
Section 38a-334-6(d)(2) of the Regulations of Connecticut States Agencies provides: "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."
In response to the defendant's request for admissions, the plaintiff admits that he has received $50,000 in medical payment benefits from Nationwide. In addition, Nationwide has paid the plaintiff the $25,000 limit on its uninsured motorist policy, for a financial recovery totaling $75,000. In its "limit of liability" Section, the defendant's insurance policy states that it is entitled to a reduction in the amount due under its uninsured motorist coverage for any payments made by the primary insurance carrier, including medical expenses. Since Nationwide already paid a total of $75,000 to the plaintiff, Infinity's liability has been reduced to zero because the plaintiff's recovery was in excess of $50,000, which is Infinity's maximum liability for uninsured motorist coverage. The plaintiff is, therefore, not entitled to a double recovery.
For the foregoing reasons, Infinity's motion for summary judgment is granted as there are no genuine issues of material fact that the amount recovered by the plaintiff exceeds the amount of Infinity's uninsured motorist coverage.
GILARDI, J.