Opinion
No. CV 06 5001442S
May 22, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT OF MIDDLESEX MUTUAL ASSURANCE COMPANY
The defendant, Middlesex Mutual Assurance Company ("Middlesex"), has moved for summary judgment in this uninsured motorist action on the grounds that the plaintiff's decedent is limited to the uninsured/underinsured motorist coverage on the vehicle he owned and operated at the time of the accident at issue in this case.
Facts
In the complaint, the plaintiff, James Reeve, administrator of the estate of Brandon Reeve, alleges that on October 7, 2004, Brandon Reeve (Reeve) was riding his motorcycle in Middletown when a car, driven by Ashley Hunter, collided with Reeve's motorcycle. The plaintiff further alleges that as a result of the collision, Reeve suffered serious injuries, which ultimately caused his death. Reeve was the son of James Reeve and resided with him. James Reeve was issued an insurance policy by the defendant. There is no dispute that Reeve's motorcycle insurance policy, issued by Progressive Northwestern Insurance Company (Progressive), lapsed on September 3, 2004, due to nonpayment of premium. Count one sounds in breach of contract, in that the injuries and losses allegedly sustained by Reeve are claimed to be the legal responsibility of the defendant, Middlesex Mutual Assurance Company, in accordance with its uninsured and underinsured motorist coverage provided pursuant to General Statutes § 38a-336.
The plaintiff withdrew count two, breach of contract against Progressive Northwestern Insurance Company, on or about January 25, 2007.
Discussion of the Law and Ruling
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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003). "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003); Practice Book §§ 17-45, 17-46. In deciding a motion for summary judgment, the trial court mist view the evidence in the light most favorable to the nonmoving party. Brown v. Soh, 280 Conn. 494, 501, 909 A.2d 43 (2006). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 188, 819 A.2d 765 (2003); 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).
In support of its motion for summary judgment, the defendant argues that Connecticut General Statutes § 38a-336(d) precludes Reeve from accessing uninsured or underinsured motorist benefits from the policy issued by the defendant because Reeve was the owner of the motorcycle that he was riding at the time of his accident. That statute provides in relevant part: "If any person insured for uninsured and underinsured motorist coverage is an occupant of an owned vehicle, the uninsured and underinsured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available."
The plaintiff argues that the above provision in § 38a-336 does not apply to him because the Progressive policy had lapsed at the time of the accident and no longer provided coverage to Reeve. Relying on the language of § 38a-336, he maintains that because the statute applies to "any person insured for uninsured and underinsured motorist coverage" and because Reeve's motorcycle was no longer insured at the time of the accident, Reeve was not insured for the purposes of the statute and is not, therefore, limited to the coverage provided by the Progressive policy.
The plaintiff's position, that he is entitled to coverage under his father's policy because the coverage on his vehicle had lapsed, is untenable under Connecticut General Statutes § 38a-336(a)(1)(A) and (B), which specifically prohibit plaintiffs from seeking uninsured or underinsured motorist coverage for injuries sustained by "any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured."
The legislature amended this statute in response to the decision of the Supreme Court in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982), in which the court invalidated a policy provision that would have excluded uninsured motorist coverage to the plaintiff because he was operating an uninsured motorcycle owner by his father, while the named insured on the policy was the plaintiff's mother.
In Harvey, the Supreme court reasoned that the exclusion at issue in the insurance policy violated the public policy embodied in General Statutes § 38-175c (currently § 38a-336), which required that all automobile liability insurance policies contain uninsured motorist coverage "for the protection of persons insured thereunder." In ruling as it did, the court noted that the public policy embodied in the statute might discourage "persons from obtaining liability insurance coverage and [increase] the risk of injury by uninsured motorists," but reasoned that "that plea should be directed to the legislature." Id., 252-53.
Subsequent to the court's decision in Harvey, the legislature enacted Public Acts 1983, No. 83-461, which amended subsection (a) of § 38a-336. The purpose of the amendment was stated by Senator Wayne Baker, Co-Chairman of the Committee of Insurance and Real Estate:
First, it would remove an incentive to drive without required insurance that was created by a recent state Supreme Court decision . . . Mr. President, a recent Supreme Court decision held that a person owning more than one car could have uninsured motorist coverage on all of his cars even if he chose not to insure one of them. This decision requires insurers to provide coverage to people who choose to break this State's compulsory insurance law. If a person does drive without insurance and exposes others to injury without the protection of liability coverage, then that person should not be entitled to uninsured motorist coverage.
26 Sen.Proc., Part 9, 1983 Sess., page 3055.
As a result of that amendment, § 38a-336(a)(1) currently provides in relevant part: "No insurer shall be required to provide uninsured and underinsured motorist coverage to . . . (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured." This language describes Brandon Reeve.
The insurance policy issued by the defendant to James Reeve, the decedent's father, defines the term "insured" in the liability section of the policy as: "you or any `family member' for the ownership, maintenance or use of any auto" In the policy's uninsured motorists coverage section, "insured" is defined as follows: "you or any `family member.' . . ." As permitted by § 38a-336(a)(1), the policy also contains the following exclusion: "We do not provide Uninsured/Underinsured Motorists Coverage for `bodily injury' sustained: [b]y an `insured' while `occupying' . . . any motor vehicle owned by that `insured' which is not insured for this coverage under this policy . . ."
In a context slightly different than that of the present case, the Supreme Court explained the public policy and legislative intent behind § 38a-336. In Middlesex Ins. Co. v. Quinn, 225 Conn. 257, 622 A.2d. 572 (1993), the court addressed the issue of whether the defendant, who lived with his father at the time of the accident and owned his own vehicle, was a covered person under the terms of his father's insurance policy, in which "[y]ou, your, and yourself . . . means a member of the family who is a resident of the household and who doesn't own a car . . ." Id., 261-62. The court explained: "The policy behind linking uninsured motorist coverage to liability coverage is to reward those who obtain insurance coverage for the benefit of those they might injure. Persons who are uninsured for purposes of liability coverage should not be protected by the public policy of this state from their own kind . . .
"In the absence of clear direction from the legislature, [w]e decline to extend the public policy . . . to allow a member of a family to purchase one liability policy and claim total coverage thereunder for the entire family while vastly increasing the risk to his or her insurer by knowingly owning and operating a fleet of uninsured [or underinsured] vehicles upon the highways." (Citations omitted; internal quotation marks omitted.) Id., 268-69.
The plaintiff's argument that Connecticut General Statutes § 38a-336 is inapplicable when an owner of a motor vehicle has no insurance at the time of the collision was considered by the Superior Court in Steadward v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 04 0490188 (March 8, 2006, Silbert, J.) ( 40 Conn. L. Rptr. 848). Under facts similar to those of the present case, the court granted the defendant insurance company's motion for summary judgment, reasoning that Connecticut General Statutes §§ 14-12b and 38a-336 express the state's "policy to require that all persons registering motor vehicles in this state have and maintain a policy of liability insurance which also includes uninsured and underinsured motorist coverage. Moreover, it is only to the uninsured and underinsured coverage provided by that policy that such a person may look for benefits in the event that he or she is injured by an uninsured or underinsured motorist while occupying an owned vehicle. To allow this plaintiff to look elsewhere for coverage is to encourage individuals to violate . . . § 14-12b with impunity and with the confidence that they may recover uninsured or underinsured benefits from insurers who never intended or contracted to provide such benefits." Id.
The relevant provisions of the insurance policy of the present case appear verbatim in Correa v. Ragozine, Superior Court, judicial district of New Haven, Docket No. CV 00 0443038 (August 17, 2001, Devlin, J.), including an exclusion for bodily injury sustained by an insured while occupying an uninsured motor vehicle owned by that insured. In Correa, the plaintiff had been driving her own uninsured car when she was involved in a motor vehicle accident. The plaintiff argued that because she was a family member of a named insured on an insurance policy issued by the defendant insurance company, she qualified as an insured under the policy. Id. The defendant insurance company argued that the exclusion prevented the plaintiff from recovering under her stepfather's policy because the plaintiff was driving her own uninsured vehicle at the time of the accident. Id. The court granted the insurance company's motion for summary judgment, reasoning that the exclusion in the policy is consistent with § 38-336.
This court agrees with the reasoning in Steadward and Correa. Public policy, statutory law and case law all mandate that the owner of an uninsured motor vehicle which is involved in an accident is not entitled to recover under the uninsured/underinsured coverage of a policy covering a different vehicle even though he is an insured under that policy. Therefore, the defendant's motion for summary judgment is hereby granted.