Opinion
No. CV 01-0164300 S
August 19, 2004
MEMORANDUM OF DECISION
This matter is before the court on a motion for summary judgment brought by the defendant, Covenant Insurance Company.
On March 23, 2001, the plaintiff, Shawn Quimby, filed a two-count complaint against the defendants, Kimberly Biagioni and Covenant Insurance Company. In count two, the plaintiff alleges the following facts. Quimby was a passenger in Biagioni's car. Quimby was involved in an accident caused by an underinsured motorist and subsequently suffered numerous injuries. At the time of this accident, Biagioni's car was insured under a Covenant "Personal Auto Policy." This policy provided, inter alia, for coverage from damage caused by an "underinsured motorist." Pursuant to the policy and the uninsured and underinsured motorist coverage provisions of General Statutes § 38a-336, Covenant is required to compensate Quimby for his personal injuries.
Count one of the complaint is against Biagioni and not the subject of the present motion for summary judgment.
On April 21, 2003, Covenant filed a motion for permission to file a motion for summary judgment and a motion for summary judgment accompanied by a memorandum of law, a certified transcript of Quimby's deposition testimony, an authenticated copy of the policy and the affidavit of Richard Toce, Jr., the senior claims representative for Covenant. This court granted Covenant's motion for permission to file its motion for summary judgment on November 10, 2003. On June 11, 2003, Quimby filed a memorandum of law in opposition. The file also contains a supplemental memorandum of law in opposition dated May 3, 2004. On May 17, 2004, the motion was heard on the short calendar.
I.
"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 . . . a motion [for summary judgment] 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).
II.
The following are facts as taken from Quimby's deposition testimony. The incident/accident occurred on a snowy night whereupon Biagioni was driving her car, and Quimby was the sole passenger. As they were traveling on Route 8 headed north to Quimby's home in Oxford after leaving St. Vincent's Hospital in Bridgeport, Biagioni's car slid off the road into the center median and got stuck in the snow. Quimby alighted and pushed the car from the front, while Biagioni drove in reverse, dislodging the car from the snow and back onto Route 8. Quimby then walked passed Biagioni on the driver's side, around the rear of the car and started toward the passenger door. When he was approximately one foot from Biagioni's passenger door and about to open it he was struck by another vehicle. At the time of the accident, Quimby was not in physical contact with Biagioni's car.
Covenant moves for summary judgment on the ground that Quimby is not an insured under the policy because he was not an "occupant" of Biagioni's car at the time of the accident as that word is defined in the policy. In opposition, Quimby argues that he was an "occupant" in as much as he was in the process of "getting into" the car and in addition, an emergency circumstance existed, which excuses the requirement that one must be in physical contact with the vehicle at the time of the accident to be entitled to uninsured motorist coverage. Finally, Quimby argues that the policy language getting in" is ambiguous and he has a reasonable expectation of coverage.
"[C]onstruction of a contract of insurance presents a question of law for the court . . . "[T]he terms of an insurance policy are to be construed according to the general rules of contract construction The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must in preference, be adopted . . . Our jurisprudence makes clear, however that [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied . . . Indeed, courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Citation omitted; internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins., 267 Conn. 512, 519, 838 A.2d 993 (2004).
The policy language at issue is the meaning of "occupying" the "covered vehicle" which is defined as "in, upon, getting in, on, out or off." Both parties cite Testone v. Allstate Ins. Co., 165 Conn. 126, 131, 328 A.2d 686 (1973), in which the insurance policy in question defined "`occupying' . . . as `in or upon or entering into or alighting from' the vehicle." In that case the plaintiff arrived at the scene of an accident in a wrecker owned by his employer. Id., 128. The plaintiff was on the driver's side of the insured vehicle involved in the accident with the intention of entering it to apply the brakes while the wrecker was moved. Id. At this point an uninsured motorist struck the vehicle and the plaintiff, who was two to three feet adjacent to the insured vehicle, suffered injuries. Id., 128-29. The Supreme Court held therein that the plaintiff was not in actual physical contact with the insured vehicle and, consequently, was not "in or upon" that vehicle. Id., 134. The Supreme Court also held that even though the plaintiff was approaching with the intention of entering the driver's door of the insured vehicle, the act of approaching with the intent to enter is not the equivalent to the act of entering. Id. Consequently, the plaintiff was not "entering" the vehicle within the meaning of the insurance policy. Id.
The present case is more similar to Allstate Ins. Co. v. Howe, 31 Conn.App. 132, 623 A.2d 1031, cert. denied, 226 Conn. 911, 628 A.2d 983 (1993), than to Testone. In this case "[t]he defendant was a passenger in a car operated by her friend Wendy Bayer and owned by Bayer's mother." Id., 133. They were traveling on an icy road, which caused the Bayer car to collide with the rear of another car. Id., 133-34. The defendant got out of the car to discuss the accident with the occupants of the other car. Id., 134. "The defendant was returning to the Bayer vehicle when a third car struck the Bayer car which then struck the defendant, causing her to suffer serious physical injuries." Id. The applicable insurance policy covered people who were "in, on, getting into or out of the insured vehicle." (Internal quotation marks omitted.) Id., 137.
The court in Howe discerned no difference between the policy term "on" in their case and the term "upon" in Testone and held that the defendant was "on" the insured Bayer car because she was in physical contact with the car at the time of the accident. Id., 138, n. 1 140. Furthermore, the Howe court held that "[a]lthough the Testone court concluded that intent to enter a vehicle alone is not `entering' a vehicle within the meaning of the insurance policy . . . [their] case [involved] more than an intent to enter the vehicle, standing alone." (Citation omitted; internal quotation marks omitted.) Id., 138. "The defendant had an intent to reenter the vehicle after a brief interruption in her travels. She was not simply standing by the car. She had exited the car for reasons related to its operation and was returning directly to resume her travels when the accident occurred." (Emphasis in original.) Id., 138-39. As a result, the Appellate Court saw no difference between the policy term "getting into" in their case and the term "entering" in Testone. Id., 138, n. 2. The court concluded "that the totality of the circumstances [were] sufficient to permit coverage of the defendant as a person who [was] injured while . . . on [ or] getting into . . . [the] insured auto." (Emphasis added; internal quotation marks omitted.) Id., 140.
Likewise, in the present case the "Uninsured Motorist Coverage" section of the policy defines an "[i]nsured" as "[a]ny other person `occupying' your covered auto." (Internal quotation marks omitted.) As noted previously, "occupying" is defined in the policy as "in, upon, getting in, on, out or off." Quimby's deposition, affidavit and his memorandum of law in opposition assert that at the time of the accident he was getting ready to open the passenger door and beginning the act of reentering the Biagioni car to resume his travels after a brief interruption in his journey, which was directly related to the operation of the car. Quimby maintains that he had completed his approach to the door and possessed more than a mere intent to "enter" Biagioni's car. Covenant avers in its memorandum of law in support that "it can be said that [Quimby] possessed an intention to enter the Biagioni vehicle at the moment of the collision, but it cannot be said that he . . . was in the process of entering the vehicle . . ." Consequently, material questions of fact exist as to whether Quimby was "getting in" Biagioni's car, as that language is defined by the policy and interpreted by Testone and Howe.
The court recognizes little or no difference between the policy terms "entering" and "getting into" in Testone and Howe, respectively, from the term "getting in" in the present case. See Allstate Ins. v. Howe, supra, 31 Conn.App. 138, n. 2.
The Supreme Court in Carta v. Providence Washington Indemnity Co., 143 Conn. 372, 377-78, 122 A.2d 734 (1956), cited Goodwin v. Lumbermens Mutual Casualty Co., 199 Md. 121, 85 A.2d 759 (1952). The Carta court, in construing language of an insurance policy, analogized the Goodwin court's interpretation of the term "entering" to the term "alighting." Carta v. Providence Washington Indemnity Co., supra, 378. "The plaintiffs [in Goodwin], who had attended a wedding, started back to their automobile to return home. When the accident occurred, all four plaintiffs were standing beside the car. One of them had unlocked and opened the front door and was reaching to unlock the rear door; another was holding the front door; a third was standing beside it; and the fourth had hold of the handle of the rear door. The [ Goodwin] court said (p. 131): `They had all completed their approach to the car, they were not coming up to it with the purpose of entering it, they had reached it, and they were actually engaged in the process of getting in. That is what [the insurance policy] intended by entering.'" (Internal quotation marks omitted.) Id. The holding of Goodwin reinforces the reasoning articulated in Allstate Ins. Co. v. Howe, supra, 31 Conn.App. 132.
Quimby admits in his deposition that he was not in physical contact with Biagioni's car when the accident occurred. Accordingly, he could not have been "upon" the car at the time of the accident. Nevertheless, "[t]he argument that coverage under uninsured motorist provisions containing the term `upon' need not depend on the injured party's actual physical contact with the insured vehicle at the time of the injuries . . . may be appropriate under certain emergencies . . ." (Citations omitted.) Testone v. Allstate Ins. Co., supra, 165 Conn. 133, citing Katz v. Ocean Accident Guarantee Corp., Ltd., 202 Misc. 745, 112 N.Y.S.2d 737 (1952). In Katz, the plaintiff's wife was in the act of locking the insured car with her hand upon the door, when suddenly she ran in between the insured car and another parked car to the rear of the insured car in an effort to avoid an oncoming vehicle. Katz v. Ocean Accident Guarantee Corp., Ltd., supra, 746. The oncoming vehicle struck the insured car causing it to crush the plaintiff's wife in between the insured car and the parked car. Id. The court held that the plaintiff was in the act of being upon and alighting from the insured vehicle even though she was not in physical contact with the insured car at the time of impact. Id., 751.
Quimby stated in his deposition that he saw the vehicle that struck him a few seconds prior to the impact and "immediately like jumped, like flinched." Quimby also stated in his affidavit that he believes he "would have been more seriously injured or killed had [he] not jumped away at the moment of impact." Quimby continued, stating that had he not jumped he would have been in contact with Biagioni's car "at about the moment of impact." As a result, there are questions of fact as to whether an emergency situation existed that would excuse, for purposes of uninsured motorist coverage, the lack of actual physical contact with Biagioni's car at the time of impact. See Testone v. Allstate Ins. Co., supra, 165 Conn. 133-34.
III.
Based on the foregoing discussion, there is a genuine issue of material fact as to whether Quimby was "occupying" the "covered vehicle" as set forth in the insurance policy. Therefore, the motion for summary judgment is denied.
Matasavage, J.