Opinion
HHDCV146052608
12-05-2016
Wendy Smith et al. v. Mikeya Long
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
In a trial to the court on April 17, 2016, the minor plaintiffs, Angeleena Warren and Sydney Warren, by and through their mother and next friend, Wendy Smith, presented evidence in support of their lawsuit for uninsured motorist benefits against GEICO Insurance Co. Also before this court is the underlying action pursuant to the plaintiffs' negligence claim against the tortfeasor, Mikeya Long, arising out of a motor vehicle accident on June 5, 2014. The original action included two other plaintiffs, specifically, the mother, Wendy Smith, who was the driver of the other vehicle, as well as Carlee Warren, who was another passenger and sibling to Angeleena and Sydney.
The plaintiffs' motion to cite in GEICO Insurance Co. (GEICO) was granted on November 17, 2014, based on the plaintiffs' claims that Long had no applicable automobile insurance and that, therefore, the plaintiffs' uninsured motorist coverage pursuant to Smith's insurance policy with GEICO was triggered. The amended complaint, filed November 24, 2014, subsequently alleged that Long did have insurance but with policy limits inadequate to cover the plaintiffs' injuries and losses. On January 7, 2016, the matter as to Wendy Smith was resolved and withdrawn followed by Carlee Warren's case, which was resolved and withdrawn on April 8, 2016. The withdrawal form filed with the court notes that the withdrawal was based on a discussion between the parties on their own. On April 13, 2016, the plaintiff filed a Request for Leave to Amend Complaint and a second amended complaint, to which the defendant did not object. Thus, the operative complaint alleges claims of negligence against Long as well as claims for uninsured, as opposed to underinsured, motorist coverage against GEICO.
Notwithstanding abode service upon the original complaint, Long has never filed her appearance and thus, this court duly defaulted Long on April 14, 2016, for her failure to appear. In the trial before the court, the plaintiffs offered testimony regarding their injuries, which for Angeleena Warren included $13,714.39 in medical bills and for Sydney Warren, $1,874.98 in medical bills. Angeleena, who had a prior fracture to her forearm which had healed, sustained a fracture to her right forearm. Angeleena received occupational therapy and by October 29, 2015, she reported to her doctor that she planned to return to gymnastics and had only mild pain when she engaged in weight bearing activities. Angeleena was unable to participate in softball and dance as well. Sydney also was unable and/or limited in her ability to participate in her usual activities, including dance, softball and summer camp activities due to injuries sustained to her knee. Thus, this court finds that the plaintiffs have proven by a preponderance of evidence that their damages were causally related to Long's negligence and that they have sustained not only $13,714.39 as to Angeleena and $1,874.98 as to Sydney in economic damages respectively, but also $15,000 and $5,000 in non-economic damages respectively as well.
Having found that Long is liable as a matter of law for damages incurred by the plaintiffs, this court turns to the contract dispute between the plaintiffs, Angeleena and Sydney Warren, and the defendant, GEICO, for uninsured motorist's benefits pursuant to the insurance policy of their mother, Wendy Smith. In its brief, the defendant's sole claim is that the plaintiffs cannot establish that the uninsured provisions of Smith's insurance policy are triggered because they cannot establish that Long does not have liability insurance. At trial, the plaintiffs offered the affidavit of the tortfeasor, Long, to which the defendant objects and argues is inadmissible hearsay. In the affidavit, Long avers that she did not own an insured automobile and did not carry liability insurance on any vehicle. The plaintiffs also offered the testimony of Marshal Peter Privitera who testified about his unsuccessful efforts to serve Long with a subpoena for trial, including three trips attempting service at two addresses, as well as seeking information from the Department of Motor Vehicles.
Pursuant to General Statutes § 38a-336c, the plaintiffs are required to make reasonable efforts to establish what liability coverage exists for the owner and operator of an uninsured vehicle. By securing an affidavit of no insurance from Long and producing the marshal who testified about his attempts to serve the subpoena, the plaintiffs argue that they have met their burden of making reasonable efforts. Finally, they argued at trial and in posttrial briefs that the affidavit is admissible under a variety of exceptions to the hearsay rule, specifically, that the statement constitutes an admission of a party, that it is a declaration against civil interest, a declaration against penal interest and finally, that the statement is admissible under the residual exception to the hearsay rule. The plaintiffs also argue that because the defendant has already paid claims pursuant to the uninsured motorist provisions as to Smith and Carlee Warren, the defendant is estopped from arguing that the plaintiffs have not proven that Long is an uninsured motorist. In response, the defendant argues that none of the exceptions to the hearsay rule apply and because the alleged claims paid out were pursuant to settlements, the court may not consider that evidence. The defendant also argues that it is prejudiced by the introduction of the affidavit, as it was never produced in discovery, notwithstanding the plaintiffs' claim that the affidavit was faxed to counsel.
General Statutes § 38a-336c provides: " (a) An insured, when making a claim for uninsured or underinsured motorist benefits, shall make reasonable efforts to establish what liability coverage there is for the owner and operator of an alleged uninsured or underinsured vehicle; and (b) For any motor vehicle accident occurring on or after October 1, 2006, no insurer may require its insured, as a condition of eligibility for payment of uninsured motorist benefits, to provide affidavits or written statements from the owner or operator of the alleged uninsured vehicle attesting to the fact that the individual did not maintain any liability coverage at the time of the motor vehicle accident."
As an initial matter, this court addresses the question which it posed to the parties as to whether the above language relieves the plaintiffs from their burden of proving that they have exhausted available liability coverage as a precondition to obtaining uninsured motorist benefits. Having considered the briefs of the parties and the relevant law on the issue, this court concludes that the plaintiffs still have the burden of proving that they are entitled to claim uninsured motorists based on evidence that the tortfeasor was in fact uninsured.
Connecticut law requires an insured to fully exhaust the available liability coverage for at least one alleged tortfeasor prior to recovering uninsured or underinsured motorist benefits. See, e.g., Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 811, 663 A.2d 377 (1995) (in accident involving only one tortfeasor vehicle, plaintiff must exhaust all applicable policies for liability coverage prior to obtaining underinsured motorist benefits); Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 369, 641 A.2d 783 (1994) (" [u]nder [General Statutes] § 38a-336 . . . an injured party must exhaust his remedies against the tortfeasor before he is legally entitled to collect damages under uninsured motorist coverage"); Kronberg v. New Hampshire Ins. Co., 69 Conn.App. 330, 334, 794 A.2d 561, cert. denied, 260 Conn. 934, 802 A.2d 88 (2002) (" [o]ur case law has made it clear that to prevail on a claim for uninsured motorist coverage, the claimant must exhaust the available liability coverage of one of the tortfeasors"); see also General Statutes § 38a-336(b) (" 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 . . ." [emphasis added]); accord General Accident Insurance Co. v. Mortara, 314 Conn. 339, 351-52, 101 A.3d 942 (2014) (" [u]nder Connecticut law, the requirement that the insured must fully exhaust the tortfeasor's liability coverage before recovering underinsured motorist benefits is absolute").
Moreover, § 38a-336(a)(1) only requires uninsured and underinsured motorist coverage to individuals " who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages . . ." (Emphasis added.) Insurers frequently utilize contractual language that mirrors this statutory language by providing coverage to a claimant who is " legally entitled to collect damages."
" Legally entitled to collect damages from the owner or driver of an uninsured motor vehicle, means that in order to recover under the policy, the plaintiff must prove: (1) that the other motorist was uninsured; (2) that the other motorist was legally liable under prevailing law; and (3) the amount of liability." (Emphasis added; internal quotation marks omitted.) Williams v. State Farm Mutual Automobile Ins. Co., supra, 229 Conn. 367-68; see also Quigley-Dodd v. General Accident Ins. Co. of America, 256 Conn. 225, 239 n.9, 772 A.2d 577 (2001) (confirming statement in Williams that " legally entitled to collect damages from the owner or driver of an uninsured motor vehicle" requires plaintiff to prove that other motorist was uninsured); United States Fidelity & Guaranty Co. v. Hutchinson, 244 Conn. 513, 521, 710 A.2d 1343 (1998) (same); Fagan v. Amex Assurance Co., Superior Court, judicial district of Hartford, Docket No. CV-97-0575896-S, (February 1, 2000, Beach, J.) (" [i]n Connecticut, the plaintiff in an uninsured motorist action has the burden to show that the putative tortfeasor is uninsured"); see also J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (2d Ed. 1999) § 1.5, p. 74 (" burden of demonstrating that an individual is eligible for uninsured motorist benefits is on the claimant").
Notably, courts have referenced and also applied this second body of law post-2006. See, e.g., Doyle v. Universal Underwriters Ins. Co., Superior Court, judicial district of Middlesex, Docket No. CV-13-6010798 (May 11, 2016, Vitale, J.) (62 Conn.L.Rptr. 287, ) (noting holding in Williams when determining applicability of collateral estoppel defense); Carter v. Philadelphia Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-12-6013216, (July 30, 2014, Zemetis, J.) (applying Williams " legally entitled" requirements to uninsured motorist context on motion for summary judgment); Pyles v. Geico General Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-06-5005729-S, (November 19, 2007, Holden, J.) (applying Williams " legally entitled" requirements to underinsured motorist context on motion for summary judgment); but see Lewis v. Blatche, Superior Court, judicial district of New Haven, Docket No. CV-13-6037128-S, (July 2, 2015, Corradino, J.T.R.) (claimant has burden of proving that tortfeasor was uninsured or made reasonable efforts to establish tortfeasor's insurance status, citing 9 Couch on Insurance. 3d., § 123:47, pp. 123-42 through 123-44).
" [T]he legislature is presumed to be aware of the judicial construction placed upon its enactments." Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992). Regarding the first body of law, Connecticut courts have consistently recognized the " exhaustion" requirement prior to obtaining uninsured and underinsured motorist benefits. The legislature is empowered to correct judicial construction of statutory provisions by amendment; see, e.g., Fahy v. Fahy, 227 Conn. 505, 510-11, 630 A.2d 1328 (1993) (legislature unequivocally instructing courts to apply statute retrospectively); but the exhaustion requirement embodied in § 38a-336(b) has remained substantially the same since Ciarelli v. Commercial Union Ins. Cos., supra, 234 Conn. 807, and the cases referenced above. Thus, the legislature has not sought to correct the judiciary's understanding of that requirement. Indeed, the plain language of § 38a-336c(d) does not appear to eliminate a claimant's burden of exhausting available liability coverage prior to obtaining uninsured motorist benefits.
Moreover, when construing policy provisions involving the " legally entitled to collect damages" language, our appellate courts have consistently placed the burden on the claimant to prove that the tortfeasor was, in fact, uninsured. In enacting § 38a-336c, the legislature is presumed to be aware of the " state of the law, " specifically the burden that courts imposed on plaintiffs when proving that they are " legally entitled to collect damages" under the applicable uninsured motorist provision, and could have chosen to explicitly address that relevant subject matter. Here, the legislature has not expressly eliminated the claimant's ultimate burden of demonstrating entitlement to uninsured or underinsured motorist benefits. See, e.g., General Statutes § 38a-336c(d) (" [n]othing in this section shall relieve any person seeking to secure any coverage under an automobile insurance policy of any duty or obligation imposed by contract or law"). Indeed, the relevant portions of the legislative history for Number 06-104, § 1, confirms that the plaintiff still shoulders the burden of demonstrating entitlement to such benefits. See 49 H.R. Proc., Pt. 16, 2006 Sess., p. 5085 (" [w]e feel that this way, if there is a claim for uninsured or under-insured, there will be a less burden in that they can use other reasonable means to get the information that the person was, in fact, uninsured or under-insured"); see also 49 S. Proc., Pt. 8, 2006 Sess., p. 2575 (statute " would soften the burden").
Finally, in interpreting § 38a-336(b), our courts have required the insured to prove that he or she has exhausted the applicable liability insurance. See, e.g., Kronberg v. New Hampshire Ins. Co., supra, 69 Conn.App. 335. Reading § 38a-336c to eliminate an insured's burden in this regard would greatly conflict with how courts have interpreted § 38a-336(b). Since the legislature has the power to correct the judiciary's understanding of a particular provision, § 38a-336c(d) strongly suggests that the legislature did not intend to alter an insured's ultimate burden of proof.
In concluding that the plaintiff retains the burden of proving that the tortfeasor is uninsured and that they have made reasonable efforts to do so, this court considers the admissibility of Long's affidavit and the circumstances surrounding its procurement. Given their obligation to make reasonable efforts, the plaintiffs, through counsel, obtained the police report of the accident, determined that Long was charged, inter alia, with failure to carry insurance, and initiated the current civil action. Counsel for the plaintiffs subsequently appeared at the criminal hearings where Long's motor vehicle charges were handled. As such, the plaintiffs requested that this court take judicial notice of those criminal proceedings, and that their counsel appeared on their behalf in exercise of their state constitutional right to be heard on Long's application for accelerated rehabilitation. During those proceedings and as part of the disposition of her criminal case, Long agreed to execute the affidavit of non-insurance, the admission of which is currently in dispute before this court.
The defendant argues against the admission of the affidavit because it was notarized by counsel for the plaintiffs and other than counsel's representations, argues that there is no independent basis for determining that Long executed the affidavit. Based on counsel's representations as an officer of the court, however, and this court's own ability to take judicial notice of court proceedings, the court finds that Long was charged with failure to carry insurance and that in fact, Long executed the affidavit on same day her criminal case was resolved.
Pursuant to Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003), the court takes judicial notice of the hearing on Long's application for accelerated rehabilitation since " [t]here is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties." The proceedings took place at the Superior Court, Geographical Area No. 12 at Manchester on October 10, 2014, before the court (Noble, J.) and indicate that counsel for the plaintiffs presented himself on behalf of Smith and the four Warren children. In that hearing, counsel for the plaintiffs and Long, who was represented by counsel, came to a resolution with respect to the disposition of her criminal case and that Long would execute the aforesaid affidavit in exchange for the plaintiffs' withdrawal of their objection to her application for accelerated rehabilitation. The court then granted the application and issued orders, as a condition of her AR probation, that she execute the affidavit pursuant to the agreement and abide by the requirement that she carry insurance when operating a motor vehicle.
In light of the affidavit, this court therefore finds that the statement is admissible as an admission of a party pursuant to the Connecticut Code of Evidence Section 8-3(1). An admission of a party includes " [a] statement that is being offered against a party and is . . . the party's own statement." Conn. Code of Evidence § 8-3(1)(A). The parties do not dispute that while defaulted, Long continues to be a party to these proceedings. Moreover, the law is clear that " [t]here is no requirement that the statement be against the interest of the party when made or that the party have firsthand knowledge of its content. Basically, the only objection that can be made to the admission of a party/opponent is that it is irrelevant or immaterial to the issues." Doe v. Christoforo, 87 Conn.App. 359, 364, 865 A.2d 444, cert. granted on' other grounds, 273 Conn. 920, 871 A.2d 1027 (2005) (appeal withdrawn October 13, 2005). " An admission of a party opponent need only traverse the low hurdles of relevancy and materiality to survive an objection to its admission into evidence . . . Such an admission is admissible even if it is conclusory or not based on personal knowledge . . . The admission need not even be wholly reliable or trustworthy." (Citations omitted.) State v. Markeveys, 56 Conn.App. 716, 720, 745 A.2d 212, cert. denied, 252 Conn. 952, 252 Conn. 953, 749 A.2d 1203 (2000). Moreover, the fact that the statement of a party may be relevant and used against another party does not make it inadmissible. In re Juvenile Appeal (85-2), 3 Conn.App. 184, 191, 485 A.2d 1362 (1985) (" fact that an admission by one parent might also support an inference of acts of omission by the other does not go to the admissibility of the statement"). Finding that the affidavit is admissible, this court concludes not only that Long was uninsured but that the plaintiffs made reasonable efforts to establish the availability and extent of liability insurance.
In the alternative, the plaintiffs ask this court to consider two other, alternative, evidentiary bases to support their proffer of Long's affidavit, specifically, their claim that the affidavit is admissible as a declaration against civil interest and/or a declaration against penal interest.
Under § 8-6(3) of the Connecticut Code of Evidence, a statement against civil interest is defined as " [a] trustworthy statement that, at the time of its making, was against the declarant's pecuniary or proprietary interest, or that so far tended to subject the declarant to civil liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true." In determining the trustworthiness of such a statement this court considers whether safeguards exist which are reasonably equivalent to the oath taken by a witness and the test of cross examination. See Conn. Code of Evidence § 8-6(3). The foundational requirements for the exception are: 1) the declarant is unavailable as a witness; 2) the declarant has personal knowledge of the facts stated; 3) the statement was against the pecuniary or proprietary interest of the declarant at the time the statement was made and; 4) the statement is trustworthy. C. Tait & E. Prescott, Connecticut Evidence, (5th Ed. 2014) § 8.42, p. 638.
Under § 8-6(4) of the Connecticut Code of Evidence, a statement against penal interest is defined as a " trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true." In determining the trustworthiness of a statement against penal interest, the court shall consider (a) the time the statement was made and the person to whom the statement was made, (b) the existence of corroborating evidence in the case, and (c) the extent to which the statement was against the declarant's penal interest. C. Tait & E. Prescott, supra, § 8.43, p. 640. Like the declaration against civil interest, the exception also requires that the declarant be unavailable and that the statement be against interest when made and based on personal knowledge. Id.
Under both exceptions, Long's statement meets the requirements of unavailability in light of both her default before this court and the record indicating the plaintiffs' attempts to subpoena Long for her presence in this action. Moreover, the statement was taken under oath and thus, as a sworn statement, has the accoutrements of reliability and trustworthiness. Both exceptions fail, however, to the extent that this court has difficulty finding that the statement was against either civil or penal interest at the time it was made. The court notes that the affidavit was secured pursuant to an agreement between the parties in exchange for the plaintiffs' agreement to withdraw their objection to Long's application for accelerated rehabilitation. Unlike the admission of a party opponent exception, a critical component of both exceptions is the need for this court to find that the statement was against Long's civil or penal interest. This court, therefore, cannot find that the statement is admissible under those exceptions to the hearsay rule.
With respect to the residual exception to the hearsay rule which is alternatively claimed by the plaintiffs, the court agrees that if the statement were not already admissible as an admission of a party, it would be admissible based on the residual exception to the hearsay rule. Section 8-9 of the Connecticut Code of Evidence provides: " A statement that is not admissible under any of the [hearsay] exceptions [enumerated in the Connecticut Code of Evidence] is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule."
" Reasonable necessity may be established by showing that unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources." (Internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 633 n.21, 835 A.2d 895 (2003). The court notes that the plaintiffs made significant efforts to secure Long's presence by service of a subpoena, efforts which ultimately failed. Moreover, it is clear that in the absence of any other exception to the hearsay rule, the lack of evidence to support the tortfeasor's uninsured status would be fatal to the plaintiffs' claim against the defendant Geico. Thus, the court concludes that the statement is reasonably necessary.
As to the evaluation of the trustworthiness of an affidavit, our Supreme Court has held that " [t]he second prong, reliability, is met in a variety of situations, one of which is when the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed . . . At a minimum, the statement must independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating [its] truth . . ." Ferris v. Faford, 93 Conn.App. 679, 686, 890 A.2d 602 (2006). In this case, the fact that Long had executed the statement under oath and penalty of perjury satisfies this court that the statement is trustworthy since, as our courts have recognized, the consequences of a false statement can subject the declarant to criminal prosecution. See State v. Faison, 112 Conn.App. 373, 384, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009) (person who intentionally makes false written statement under oath is guilty of false statement in second degree).
Since this court finds that Long's statement is admissible as an admission of a party or in the alternative, admissible pursuant to the residual exception to the hearsay rule, this court need not consider the estoppel claims asserted by the plaintiff.
The defendant also objects to the Long affidavit based on its claim that it was prejudiced and surprised by the claim that Long was uninsured, as opposed to underinsured, which was the plaintiffs' original claim in the complaint as served to the defendant. In its brief, counsel for the defendant asserts that he was never provided a copy of the alleged affidavit during discovery and denies the plaintiffs' claim that the affidavit was sent to the defendant in June 2014, shortly after it was allegedly made. Counsel asserts that he cannot locate any such document in its file and goes so far as accusing the plaintiffs of either failing properly to prosecute their case or intentionally, misleading the defendant to " work a surprise and create undue prejudice" on the defendant.
The court is troubled by these aspersions because they strike this court as being not only unfair and extreme characterizations of the conduct of plaintiffs' counsel, but without foundation as well. For example, in opening statements to this court, counsel for the defendant specifically references the October 14, 2014, motion to cite in additional party to which was attached the complaint which, as the defendant acknowledges, alleges the uninsured status of Long. Attached to the motion and complaint, however, and referenced therein as Exhibit A, is Long's affidavit. In light of these pleadings filed on October 14, 2014, this court has difficulty crediting the defendant's claims either that the plaintiffs intended to " work a surprise and create undue prejudice" or that the defendant was, in fact, surprised or unduly prejudiced by the existence of the affidavit.
The court is not aware of the reasons why the subsequent complaint served upon the defendant was amended to allege that Long was an underinsured motorist.
Based on the above, this court finds for the plaintiffs as to all counts, specifically with respect to 1) their claims of negligence as to Long and awards $28714.39 as to Angeleena Warren in economic and non-economic damages and $6,874.98 as to Sydney Warren in economic and non-economic damages; 2) their uninsured motorist claims pursuant to the policy issued to Wendy Smith based on this court's findings that the plaintiffs have met their burden of proving by a preponderance of the evidence that a) they made reasonable efforts to establish what liability coverage exists for Long, the operator of the motor vehicle, b) that Long was an uninsured motorist at the time of the accident; and 3) that they have exhausted their remedies against the tortfeasor pursuant to the terms of the policy and § 38a-336(b).