Opinion
No. CV 07-58008816
March 11, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #109
FACTS
On January 11, 2007, the plaintiff, Karen Wildman, commenced this action for underinsured motorist coverage benefits by service of process on the defendant, National Grange Mutual Insurance Company. The plaintiff filed a single-count complaint against the defendant which alleges the following facts.
On July 30, 2006, the plaintiff was a passenger on James Grueb's motorcycle. Grueb negligently lost control of his motorcycle and crashed. The plaintiff was thrown from the motorcycle and suffered personal injuries. Grueb had a liability insurance policy with Progressive Casualty Insurance Company (Progressive). On or about October 12, 2006, Progressive tendered the full amount of the policy to the plaintiff, in partial satisfaction of the plaintiff's claim for bodily injury. At the time of the accident, the plaintiff was insured under an automobile liability insurance policy with the defendant, which granted her underinsured motorist benefits.
On March 24, 2008, the defendant filed a motion for summary judgment on the ground that the plaintiff is not an insured under the terms of the policy. The defendant filed a memorandum of law in support of its motion for summary judgment. On June 30, 2008, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment. On August 14, 2008, the defendant filed a reply memorandum.
DISCUSSION
"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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendant argues that the plaintiff is not covered under an automobile liability insurance policy with the defendant. Specifically, the defendant argues that, under the disputed policy, the plaintiff was not a named insured, a family member of a named insured, or an occupant of an insured vehicle at the time of the accident. In opposition to the motion for summary judgment, the plaintiff argues that she is insured under the disputed insurance policy because the policy is ambiguous, and should be construed in her favor. Specifically, she claims the policy is ambiguous because it names both an individual and a limited liability company as named insureds but the definition of an insured person is dependent on whether the named insured is an individual or a business entity. The plaintiff further argues that the court should deny the motion for summary judgment because a question of material fact exists as to whether the named insured intended to provide the plaintiff with coverage.
"[C]onstruction of a contract of insurance presents a question of law for the court . . . An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract . . . In accordance with those principles, [t]he 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 . . . Under those circumstances, the policy is to be given effect according to its terms . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.
"In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity were the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading . . . Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous." (Citations omitted; internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5-6, 942 A.2d 334 (2008). "It is a basic tenet of insurance policy interpretation that the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Nichols v. Salem Subway Restaurant, 98 Conn.App. 837, 843, 912 A.2d 1037 (2006).
In the present case, the defendant has attached the policy as an exhibit to its memorandum of law, and furthermore, the plaintiff has not disputed its authenticity. Accordingly, there is no dispute as to the language of the policy. Pursuant to the underinsured motorist benefits section of the policy, "Who Is An Insured" depends on whether the named insured is an individual or an organization. The policy provides, in relevant part, that "If the Named Insured is designated in the Declarations as: 1. An individual, then the following are `insureds': a. The Named Insured and any `family members.' b. Anyone else `occupying' a covered `auto' or a temporary substitute for a covered `auto.' c. Anyone for damages he or she is entitled to recover because of `bodily injury' sustained by another `insured.' 2. A partnership, limited liability company, corporation or any other form of organization, then the following are `insureds': a. Anyone `occupying' a covered `auto' or a temporary substitute for a covered `auto.' b. Anyone for damages he or she is entitled to recover because of `bodily injury' sustained by another `insured.'" Accordingly, under these definitions, regardless of whether the named insured is an individual or an organization, anyone occupying a covered auto and anyone entitled to damages because of bodily injury sustained by another insured are both considered "insureds." In addition, if the named insured is an individual, that named insured and his or her "family members" are additional "insureds." The insurance policy further provides, in relevant part, that "`family member' means a person related to an individual Named Insured by blood, marriage, or adoption who is a resident of such Named Insured's household . . ."
Both parties agree there are two named insureds under the policy: Augie Wildman, Jr., an individual, and Wildman Construction, a limited liability company. The plaintiff argues that this makes the policy ambiguous, as it is impossible to know which definition of "insured" applies. The plaintiff's argument relies significantly on our Supreme Court's decision in Ceci v. National Indemnity Co., 225 Conn. 165, 622 A.2d 545 (1993). In Ceci, the relevant insurance policy identified a corporation, Victor Ceci Refuse, Inc., as the sole named insured. The plaintiff was the brother of the corporation's sole shareholder. The underinsured motor coverage endorsement provided, in relevant part, that "[i]ndividuals covered by this provision [include]: (1) you or any family member . . ." (Internal quotation marks omitted.) Id., 167. An arbitration panel concluded "that because the plaintiff was [not] a family member of the named insured. he was not an insured under the policy." Id., The Appellate Court agreed with the arbitration panel. Id., 168.
Our Supreme Court reversed the Appellate Court's judgment and held that the policy was ambiguous. Id., 176. Elaborating on its holding, the court stated that "[t]he language relating to `family members' in a policy insuring a corporation was not required. The defendant could have omitted [this] section . . . of the uninsured motorists endorsement of this corporate auto policy. Without this section, there would have been no ambiguity. Additionally, the defendant could have alerted the insured to the lack of personal coverage under the policy so that the Ceci family could have pursued alternate avenues for coverage of family members who could be injured by an underinsured motorist . . . For example, the insurance policy could have identified the corporate officers, Victor and Louis Ceci, or the sole stockholder, Victor Ceci, as a `designated insured.' This would have easily removed any ambiguity.
"Because corporations do not have families, uninsured motorist endorsements containing family member language should not be appended to business automobile liability insurance policies. If they are, then, in keeping with the consumer oriented spirit of the rules of insurance policy construction, the claimed ambiguity should be construed from the standpoint of the reasonable layperson in the position of the insured and not according to the interpretation of trained underwriters.
"By inserting a family member provision in a business policy, the defendant has left the Cecis in the unenviable position of having to divine the meaning and purpose of the family member language in the context of the policy. This is precisely the problem that the rules of insurance policy construction were designed to avoid . . . The position proposed by the defendant and adopted by the Appellate Court . . . renders [the `family members'] section . . . of the endorsement meaningless. Although some jurisdictions, as cited by the defendant, are not troubled by an interpretation of an insurance policy that creates a nullity of some provisions, we have consistently stated that [i]f it is reasonably possible to do so, every provision of an insurance policy must be given operative effect . . . because parties ordinarily do not insert meaningless provisions in their agreements." (Citations omitted; internal quotation marks omitted.) Ceci v. National Indemnity Co., supra, 225 Conn. 174-76.
The present case is distinguishable from Ceci. While in Ceci a corporation was the sole named insured, Augie Wildman, Jr. is a named insured in the present case. Accordingly, there is an individual to whom the "family members" language applies. A reasonable interpretation of this policy is that Augie Wildman, Jr., and his family members are insured, as well as anyone occupying a covered auto and anyone entitled to damages because of injury to another insured.
As noted earlier, "[i]t is a basic tenet of insurance policy interpretation that the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous" (Internal quotation marks omitted.) Nichols v. Salem Subway Restaurant, supra, 98 Conn.App. 843. Here, the plaintiff has not even articulated any interpretation of the policy language that would afford her coverage. She does not claim to be a family member, as defined under the insurance policy, of Augie Wildman, Jr. On the contrary, she admits in her memorandum of law that she does not fall under the policy's definition of "family member" because she is not a resident of Augie Wildman, Jr.'s household. The plaintiff also does not claim to be insured as an occupant of an insured vehicle, or someone entitled to damages because of injury to another insured. She merely asserts that the policy is ambiguous, and should therefore be read in her favor, without pointing to any specific language that reasonably could be read as extending coverage to persons not falling within either of the two definitions of "Who Is An Insured." Therefore, a reasonable reading of this policy reveals that the plaintiff is not an insured.
The plaintiff further asserts that ambiguous language in the liability coverage section of the policy demonstrates the ambiguity of the whole policy. Specifically, she argues that the language used in the "Who Is An Insured" provision of the liability coverage section "further illustrate[s] the confusion created by the language of the policy." However, "ambiguous language must render the policy ambiguous as to the relevant issue." Connecticut Medical Ins. Co. v. Kulikowski, supra, 286 Conn. 15. In the present case, the plaintiff is pursuing an underinsured motorist claim against the defendant and, as previously discussed, the underinsured motorist benefits section of the policy includes a separate, unambiguous "Who Is An Insured" provision. Therefore, any ambiguity in the liability section is irrelevant.
The plaintiff argues next in her memorandum that summary judgment should be denied because a question of fact exists regarding whether Augie Wildman, Jr. intended to insure the plaintiff when the plaintiff was added as a listed driver in the insurance policy. However "extrinsic evidence may be considered in determining contractual intent only if a contract is ambiguous." Hartford Accident Indemnity Co. v. Ace American Reinsurance Co., 284 Conn. 744, 771, 936 A.2d 224 (2007). Because this insurance policy is unambiguous, it is immaterial whether the named insured intended to include the plaintiff on its policy.
The plaintiff's argument that an issue of material fact exists regarding the intent of the named insured fails. The plaintiff relies on the court's decision in Zamora v. Safeco Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 01 54770S (December 15, 1997, Karazin, J.) (21 Conn. L. Rptr. 131). In Zamora, the named plaintiff was involved in a minor motor vehicle accident. Pursuant to a police officer's instruction, the plaintiff sat in the back of a police cruiser. While seated in the cruiser, an uninsured motorist struck the cruiser. The plaintiff applied for uninsured motorist benefits from the defendant. However, the defendant refused her application. The plaintiff was not a named insured on the policy, but did appear as a listed driver in handwritten remarks on the application for insurance the policyholder submitted to the defendant. The court denied the defendant's motion for summary judgment because it concluded that the handwritten remarks on the application for insurance created an issue of material fact whether the policyholder intended that the plaintiff would be entitled to benefits under the policy. Id., 132.
The Appellate Court's more recent decision, however, in Kitmirides v. Middlesex Mutual Assurance Co., 65 Conn.App. 729, 783 A.2d 1079 (2001), aff'd, 260 Conn. 336, 796 A.2d 1185 (2002), is instructive. In Kitmirides, the defendant issued an automobile insurance policy to the plaintiff's father-in-law, who subsequently filed a policy change request form to add the plaintiff as an additional driver. The plaintiff was later struck by an underinsured motorist. The plaintiff brought an action to recover underinsured motorist benefits under her father-in-law's policy. The trial court entered summary judgment in favor of the defendant. On appeal, the Appellate Court concluded that "a person who is a listed driver on the declarations page of an automobile insurance policy, and who is nowhere else listed as an insured, is not entitled to underinsured motorist coverage." Id., 737. In the present case, even if the court assumes that the named insured added the plaintiff as a listed driver, the plaintiff is nowhere else listed as an insured, and thus, her argument that summary judgment must be denied because a question of material fact exists must fail.
CONCLUSION
For the reasons stated above, there is no genuine issue regarding the fact that the plaintiff is not an insured as defined by the relevant insurance policy, and the defendant is therefore entitled to a judgment as a matter of law.
Accordingly, the defendant's motion for summary judgment is granted.