Opinion
FBTCV156051059
10-12-2016
Allan Popp v. Hartford Underwriters Insurance Company et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Richard E. Arnold, Judge.
The plaintiff commenced this action bearing a return date of August 4, 2016, seeking underinsured coverage against each of the two defendants, the Hartford Underwriters Insurance Company (" Hartford") and the Travelers Home and Marine Insurance Company (" Travelers"). The plaintiff alleges he was operating a farm tractor on Route 59 in Easton, Connecticut when the tractor was struck by a motor vehicle operated by Anna Tryon. As a result of Tryon's negligence, the plaintiff alleges he sustained various personal injuries. The plaintiff brought a claim against Tryon for negligence and recklessness and resolved that claim prior to the present litigation. After resolving his claim against Tryon, the plaintiff brought the present litigation against these defendants for underinsured motorist coverage.
The First Count of the Amended Complaint sets forth a claim against the Hartford, which has filed this motion for summary judgment. The commercial auto policy issued to the plaintiff by the Hartford provided up to $1,000,000.00 for underinsured motorist coverage. The Hartford argues that in accordance with the terms of the subject policy, the coverage applied only to vehicles described in the policy as " covered autos, " and the only covered auto listed in the policy was the plaintiff's 2000 GMC vehicle. The plaintiff was not operating the 2000 GMC vehicle at the time of the accident with Tryon, and instead, he was operating a farm tractor, which the Hartford claims was not a " covered auto" for the purposes of underinsured motorist coverage under the subject insurance policy issued to the plaintiff. The Hartford submits it is entitled, as a matter of law, to summary judgment, as the plaintiff is not entitled to underinsured motorist coverage. The Hartford has filed a memorandum of law, a copy of the subject insurance policy and a copy of the deposition transcript of Alan Popp from February 4, 2016.
The Second Count of the Amended Complaint sets forth a claim against the Travelers under an automobile insurance policy for underinsured motorist coverage, as well. Travelers has also filed a motion for summary judgment setting forth an argument similar to that of the Hartford. A separate decision will be issued regarding that motion for summary judgment. Travelers has represented to the court that it joins in with the argument of its co-defendant, the Hartford. The court will enter a consistent separate ruling on the motion for summary judgment filed by the Travelers.
The plaintiff has filed an objection to the motion for summary judgment arguing that subject to several narrow exceptions, uninsured/underinsured coverage follows the insured and is not vehicle specific. Neither the relevant statutory law or regulations permit an insurer to limit uninsured/underinsured motorist coverage in the manner argued by the Hartford because: (1) the law only permits limitations on the scope of uninsured/underinsured coverage with respect to owned uninsured/underinsured motor vehicles; and (2) the plaintiff's tractor is not a motor vehicle within the meaning of the statutes and regulations. Therefore, in applying the principle that uninsured/underinsured motorist coverage follows the insured, such coverage is available to the plaintiff. The plaintiff has submitted a memorandum of law in support of his position. The plaintiff has also submitted deposition testimony for Alan Popp dated February 4, 2016, a sworn affidavit from Popp, and a copy of a photo of Popp's farm tractor. The court heard the oral argument of the parties on July 11, 2016.
I
Standard of Law: Summary Judgment
" 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.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312-13, 77 A.3d 726 (2013).
" On a motion for summary judgment, the moving party " 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 . . . A material fact is a fact that will make a difference in the result of the case . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute . . . The party opposing summary judgment must present a factual predicate for his [or her] argument to raise a genuine issue of fact . . . Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate." Valente v. Securitas Security Services, U.S.A., Inc., 152 Conn.App. 196, 202-03, 96 A.3d 1275, (2014) " [I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 193, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).
II
Discussion
The plaintiff was injured on November 16, 2012, when a vehicle operated by Anna Tyron collided with the Kabuto tractor the plaintiff was operating on Route 59 in Easton, Connecticut. According to the deposition testimony of the plaintiff, the collision occurred as the plaintiff was turning into a driveway. According to the plaintiff's deposition testimony the tractor was not suitable for general roadway use, as it did not have turn signals, brake lights, mirrors or a speedometer. In his sworn affidavit and deposition testimony, the plaintiff testified that his tractor did not have to be registered with the Department of Motor Vehicles. The plaintiff states that on the rare occasions, when he drives his tractor on the roadways, it is for short distances at low speeds. On the subject date and time, he was driving from real property he owns to property he leases. He was going to use his tractor to clear a field he leases.
At the time of the accident, in consideration of a premium paid to it, the Travelers made and issued to the plaintiff an automobile insurance policy bearing number 060939 990155250, a copy of which has been submitted to the court. In the policy, the Travelers agreed to pay compensatory damages which an insured is legally entitled to recover if the insured sustains bodily injury caused by an accident that is the fault of the underinsured tortfeasor. The plaintiff alleges as an insured under the subject Travelers' policy, he is legally entitled to recover from the tortfeasor and he is additionally entitled to underinsured motorist benefits pursuant to his policy with Travelers.
Travelers claims the plaintiff cannot recover underinsured motorist benefits under the subject policy because pursuant to the language of the policy, there is an exclusion and no underinsured motorist coverage applies. Travelers argues that the plaintiff was operating his Kubota L35 tractor at the time of the accident, and as said tractor was not a listed vehicle on the Travelers policy, no underinsured motorist coverage exists. An endorsement in the Travelers policy contains an exclusion and states that " we do not provide uninsured/underinsured motorist coverage for bodily injury sustained by an insured while occupying . . . Any motor vehicle owned by that insured which is not insured for coverage under this policy." Travelers argues six points. First, the plaintiff is alleging bodily injury and is seeking uninsured/underinsured motorist benefits. Second, plaintiff is an insured on the policy. Third, the plaintiff was " occupying" the tractor as defined in the policy. Fourth, the plaintiff was occupying the tractor which is a " motor vehicle." Fifth, the motor vehicle was owned by the plaintiff. Sixth, and finally, the plaintiff's tractor was not insured for this coverage under the subject insurance policy, which lists only a 1996 Ford Crown Victoria and a 2012 Chevrolet Equinox.
In his objection to summary judgment, the plaintiff notes that while he in his initial complaint he identified the tractor as a motor vehicle, he subsequently amended his complaint to identify the tractor as a piece of " farm equipment/tractor." Thus, the plaintiff argues, his statement in a withdrawn or superceded pleading is merely an evidentiary admission and not a judicial admission and thus, is not conclusive on the trier of fact.
The subject insurance policy issued by Travelers to the plaintiff has an endorsement that contains an exclusion and states " we do not provide uninsured/underinsured motorist coverage for 'bodily injury' sustained by an 'insured' while 'occupying' . . . any motor vehicle owned by that " insured' which is not insured for this coverage under this policy." " Occupying" is defined in the definitions section of the policy as " in, upon, getting in, out or off." The thrust of the defendant Travelers' argument is that the plaintiff was occupying a motor vehicle he owned, which was not listed as a covered vehicle under the policy. Therefore, the plaintiff is not entitled to uninsured/underinsured motorist benefits pursuant to the terms of the subject insurance policy.
General Statutes § 14-1(54) defines " motor vehicle" and specifically excludes agricultural tractors, which are defined in section 14-1(2) as follows: " Agricultural tractor" means a tractor or other form of non-muscular motive power used for transporting, hauling, plowing, cultivating, planting, harvesting, reaping or other agricultural purposes on any farm or other private property, or used for the purpose of transporting, from one farm to another, agricultural implements and farm products, provided the agricultural tractor is not used on any highway for transporting a pay load or for some other commercial purpose." Therefore, for the purposes of deciding the present motion, the plaintiff who was operating his farm tractor was not operating a motor vehicle.
General Statutes § 14-1(54) states as follows in relevant part:
(54) '" otor vehicle" means any vehicle propelled or drawn by any nonmuscular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, . . .(Emphasis added.)
The plaintiff sets forth several argument in his objection to summary judgment. First the plaintiff argues that the principle articulated in Harvey v. Traveler's Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982) controls this case. In Harvey, supra, our Supreme Court held that the exclusion in the policy which excluded from coverage bodily injury to an insured while occupying a highway vehicle, other than an insured automobile, owned by the named insured or a relative was void as against public policy expressed in the uninsured motorist statute requiring all automobile liability policies to contain uninsured motorist coverage for the protection of persons insured thereunder. Id. The court concluded that " the legislature, in providing uninsured motorist coverage 'for the protection of persons insured thereunder, ' intended to protect insureds all of the time, not only when they are occupants of motor vehicles that are covered by the bodily injury liability provision." Id., 252. The court has reviewed the decision in Gormbard v. Zurich Ins. Co., 279 Conn. 808, 904 A.2d 198 (2006), and finds the principle stated in Harvey that uninsured/underinsured coverage is person centered, rather than vehicle centered, is still good law. " [O]ur explication in Harvey of the public policy underlying General Statutes § 38a-336 remains sound . . . as a general matter, an insurer cannot tie uninsured motorist benefits to the use of a specific vehicle." Id., 815. Since the plaintiff's tractor is not a motor vehicle, Connecticut law does not authorize the exclusion of it from the scope of uninsured/under insured motorist coverage. Lowrey v. Valley Forge Ins. Co., 224 Conn. 152, 617 A.2d 454 (1992). " When an insurer seeks to limit its liability for uninsured or underinsured motorist coverage based on [a] regulation issued pursuant to [General Statutes] § 38-175c [now § 38a-336], it may do so only to the extent that the regulation expressly authorizes." Id., 156.
The court agrees with the plaintiff's argument that neither the relevant statutes or regulations permit the defendant to limit uninsured/underinsured coverage in the manner argued by the defendant Hartford. The law only permits limitations on the scope of uninsured/underinsured coverage with respect to uninsured/underinsured motor vehicles and the plaintiff's tractor for the purposes of this decision is found not to be a motor vehicle within the meaning of the statute or regulations. Thus, the principle that the coverage follows the insured applies and such coverage should be available to the plaintiff. Accordingly, the motion for summary judgment is denied.