No. CV 05 4011450
July 5, 2007
MEMORANDUM OF DECISION RE WHETHER GARAGE OPERATOR'S TEST-DRIVING A CUSTOMER'S REPAIRED VEHICLE IS COVERED BY GARAGE INSURANCE POLICY
On May 26, 2006, the plaintiff, David Wakefield, brought this underinsured motorist claim against Twin City Fire Insurance Company (Twin City) and Harleysville Worcester Insurance Company (Harleysville). The plaintiff brings this suit pursuant to a garage insurance policy issued by the defendant to Auto Specialist, Inc. and Wakefield Property Holdings, LLC. The plaintiff alleges that a Geralyn Collins drove a vehicle in such a way on June 24, 2003, so as to cause a motor vehicle accident injuring the plaintiff while he, the plaintiff, was test driving a car belonging to a garage customer, Douglas Davie. Geralyn Collins carried automobile insurance with Nationwide Mutual Insurance Company that had a policy limit of $50,000. Nationwide Mutual Insurance tendered this policy limit in full settlement of the plaintiff's claim against Collins.
Throughout this memorandum, the term the defendant refers only to Harleysville.
On September 21, 2006, the defendant filed a motion for summary judgment as to count two of the complaint. In count two the plaintiff seeks payment for uninsured motorist benefits under the garage policy issued by Harleysville Insurance Company to Auto Specialist, Inc. and Wakefield Property Holdings, LLC, which owned the garage for which he was working while test driving the car of its customer at the time of the accident.
Count one is not addressed in this memorandum because it is directed solely against Twin City, not the defendant.
The defendant moves for summary judgment on the grounds that: (1) the plaintiff is not an insured under the underinsured portion of the policy because he was not driving a vehicle covered by the policy at the time of the accident and; (2) the plaintiff is not an insured under the liability portion of the policy because the plaintiff was not engaged in garage operations at the time of the accident. On February 22, 2007, Twin City filed a memorandum in opposition that is accompanied by an affidavit attested to by the plaintiff. On February 26, 2007, Twin City withdrew its memorandum in opposition.
Under General Statutes § 38a-336, if an insured is covered under the liability section of an insurance policy the insurer cannot exclude the insured from coverage under the uninsured or underinsured portion of the same policy. Thus, the public policy of § 38a-336 would allow the plaintiff to maintain this underinsured motorist coverage claim against the defendant if the plaintiff can prove he is an insured under the liability portion of the policy.
On February 27, 2007, the plaintiff filed his own opposition to the defendant's motion for summary judgment. Therein, the plaintiff states there are genuine issues of material fact still remaining that cannot be decided on the defendant's motion for summary judgment. The plaintiff has not filed a memorandum, but rather "joins in and adopts the memorandum of law and supporting affidavit of [Twin City] . . ."
On February 26, 2007, Twin City filed a withdrawal of its "objection to the motion to summary judgment." It is unclear whether this withdrawal takes Twin City's motion and memorandum in opposition out of the court's purview or if the plaintiff is permitted to join in the memorandum in the manner he did. This memorandum assumes the plaintiff is permitted to join in Twin City's memorandum in opposition and proceeds accordingly.
The plaintiff's claim is that he is an insured under the liability section of the policy and, because of the public policy behind General Statutes § 38a-336, he is therefore entitled to underinsured motorist coverage benefits. To qualify as an insured under the liability section of the policy, the plaintiff must have been operating a "covered auto" as defined by the policy. An automobile is a covered auto if it fits under any of three symbols, 27, 28 or 29, set forth in the policy. There is no dispute that symbols 27 and 28 do not provide coverage. The defendant argues that symbol 29 does not provide coverage to the plaintiff because there is no genuine issue of material fact that the plaintiff was not using the Davie automobile in his "garage business" as defined in the policy. The plaintiff argues that there is a genuine issue of material fact as to whether the Davie automobile is within the definition of a covered automobile under symbol 29.
These numerical symbols in the policy serve as abbreviations. Each symbol represents different types of coverage available to the insured.
Due to the plaintiff's action of joining in Twin City's memorandum in opposition, when this memorandum refers to the plaintiff's arguments or memorandum in opposition, it is referencing points and language contained within Twin City's memorandum in opposition; motion pleading number 121.5; and not the plaintiff's actual opposition document; motion pleading number 128.
Symbol 29 is titled "Non Owned `Autos' Used in Your Garage Business" and reads: "Any `auto' you do not own, lease, hire, rent or borrow used in connection with your garage business described in the Declarations. This includes `autos' owned by your `employees' or partners (if you are a partnership), members (if you are a limited liability company), or members of their households while used in your garage business." Garage business is not defined in the liability portion of the policy, but garage operations is defined in the underinsured motorist portion of the policy.
The policy defines garage operations as: "[T]he ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. `Garage operations' includes the ownership, maintenance or use of the `autos' indicated in Section I of this Coverage Form as covered `autos.' `Garage operations' also includes all operations necessary or incidental to a garage business." In the present case, the plaintiff argues that he was engaged in garage business at the time of the accident because he was taking the Davie automobile for a test drive after completing substantial repairs to it. The plaintiff further argues that any ambiguity in the language of symbol 29 should be construed against the defendant and provide him with coverage.
Research has revealed little Connecticut caselaw dealing with the specific insurance policy language of what constitutes garage business. One recent case discussed the same insurance policy language as is before the court in the present case. See National Grange v. Santaniello, Superior Court, judicial district of New Britain, Docket No. CV 04 4000060 (January 23, 2007, Schuman, J.). According to the insurance policy declarations page, the type of business in National Grange was a repair shop. The court held that the sale or lease of a used car was not a use commonly considered to be in connection with a repair shop. The court analyzed the statutory definition of repair shop and compared it to the statutory definition of a used car dealer. The court found the sale or lease of a used auto was permitted under the latter but not the former.
The court in National Grange cited two other cases in support of its conclusion of what conduct included activities that were necessary or incidental to garage business. The first case is Lindsay v. Safeco Ins. Co., 447 F.3d 615 (8th Cir. 2006). In Lindsay, the sale of an all-terrain vehicle, owned by the repair shop's owner but not the insured repair shop, did not fit the garage business of a repair shop as described in the declarations page of the policy. The second case is Rinehart v. Anderson, 985 S.W.2d 365 (Mo.Ct.App. 1998). In Rinehart, the use of a noncovered automobile was held to be necessary or incidental to garage business, at least enough to survive a motion for summary judgment, when it was used to assist in the return of another vehicle which had just been repaired.
The court in National Grange reasoned that the language "necessary or incidental to garage business" was essentially the same as the language "used in connection with your garage business."
In another case, Cooper v. RLI Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 94 0361703 (June 3, 1996, Corradino, J.), the court discusses how "[insurance companies issue] policies which only provide for liability coverage if the loss resulted from the type of activity normally associated with the activity or operations of the particular business they thought they were insuring." Cooper cites Hicksvill Motors v. Merchants Mutual Ins. Co., 467 N.Y.S.2d 221 (1983) (no coverage existed under a policy, which was limited to accidents resulting from garage operations, when an officer of the plaintiff set off a firecracker which injured a lady; coverage was available only if the act itself was a garage business or necessary or incidental thereto and setting off a firecracker was not such an activity), and Fidelity Casualty Co. of New York v. Napelton Motor Sales, Inc., 284 N.E.2d 26 (Ill. 1972) (no coverage was available to the defendant automotive vendor where a potential customer's child was bitten by a horse while on the property; the horse, which the insurer knew was raised on the insured property, was not used for garage operation purposes or promotions), for an illustration of how insurance companies may properly limit coverage for garage operations.
In United States Fidelity Guaranty Co. v. Leonidas, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0525720 (April 13, 1994, Sheldon, J.), the court found that snow removal services qualified as garage operations, at least enough to survive a motion for summary judgment, where the movant relied solely on the insurance policy language to preclude the nonmovants from coverage. The nonmovants countered with evidence that showed snow removal services were garage operations intended by the parties to be covered by the insurance policy. The evidence demonstrated: (1) as part of garage operations during the winter months, snow removal services were provided using vehicles identified and covered by the policy; (2) the nonmovants disclosed to the movant that the garage engaged in snow removal services; (3) the nonmovants understood that the policy afforded coverage to these operations and; (4) as a condition of entering into a snow removal contract with a local supermarket, the nonmovants were required to furnish proof of insurance to the supermarket and the nonmovants requested the movant to forward to the supermarket such proof of insurance.
In the present case, the garage business described in the declarations page of the policy is an "auto repair and body shop." The disagreement between the parties is whether this description of the garage business includes within it the plaintiff's test drive of the Davie automobile. In conjunction with its motion, the defendant submits copies of letters of certification of the policy and a copy of the policy itself. Neither is certified and no affidavits are included. The plaintiff's opposition for summary judgment, however, does include a certified affidavit by the plaintiff. In it he avers that on the day of the accident, he was performing a test drive of the Davie automobile to verify that the initial diagnosis and repairs were completed properly. The plaintiff further avers that during the test drive he was acting within the scope of his employment, as a member and manager of Wakefield Property Holdings, LLC and as president and director of Auto Specialist, Inc., in order to verify that all required repairs had been completed properly as part of his garage operations. The plaintiff finally avers that the test drive was a necessary and required operation for his business.
Upon examination of the evidence, the defendant has not met its burden of clearly showing no genuine issue of material fact in dispute. The defendant relies only upon the policy language itself and has not submitted any other evidence to buttress its claim that the plaintiff was not using the car in his garage business. As the defendant has failed to meet its burden, the plaintiff is not required to present any evidence. The plaintiff however, has shown in his affidavit that the test drive was part of his auto repair business because the test drive confirmed the initial diagnosis of Davie's automobile and that the specific problem had been remedied by the repairs performed by the plaintiff.
For the foregoing reasons, the defendant's Motion for Summary Judgment is denied.