Opinion
HHBCV156030171S
09-22-2016
Dakota Austin v. Safeco Insurance Company of Illinois
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Robert E. Young, J.
FACTS AND PROCEDURAL HISTORY
In his complaint dated July 31, 2015, the plaintiff, Dakota Austin, makes the following allegations. The plaintiff was walking with his brother when the brother was struck and injured by a motor vehicle. The plaintiff was not physically injured but suffered bystander emotional distress. Both brothers were insured under their parents' policy with the defendant, Safeco Insurance Company of Illinois, and after exhaustion of the underlying motor vehicle policy, both brothers made claims for underinsured motorist (UIM) coverage with the defendant. The defendant paid the full UIM benefits available to the brother but did not make any payment to the plaintiff. The plaintiff filed this action against the defendant seeking UIM benefits.
The defendant has moved for summary judgment, asserting that, as the plaintiff's UIM claim is one for bystander emotional distress, it is derivative and was extinguished upon the exhaustion of coverage to the plaintiff's brother. In the alternative, the defendant asserts that its policy language precludes coverage of a bystander emotional distress claim. The plaintiff filed an objection to the motion for summary judgment. The parties have both attached exhibits to their filings which are unauthenticated and cannot be considered by the court. The parties argued their respective positions at short calendar on July 25, 2016.
LEGAL STANDARD
" 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.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" 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 nonmoving 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . Hearsay is an out-of-court statement offered to prove the truth of the matter asserted . . . Unless subject to an exception, hearsay is inadmissible." (Citations omitted; internal quotation marks omitted.) Midland Funding, LLC v. Mitchell-James, 163 Conn.App. 648, 655, 137 A.3d 1 (2016).
ANALYSIS
I. Derivative Claim Survival
The first ground for summary judgment asserted by the defendant is that the plaintiff's claim of bystander emotional distress is a derivative claim which was extinguished by the settlement of the claim of his brother. " [B]ystander emotional distress derives from bodily injury to another . . . [B]ecause emotional distress, by itself, is not a bodily injury, it can be compensable only if it flows from the bodily injury of another person . . . This is because but for the bodily injury to [another], the plaintiff would not . . . suffer any emotional injuries. In other words, the plaintiff's injuries are the natural and probable consequence of . . . having witnessed the accident . . . Therefore, the measure of the plaintiff's recovery is not governed by the fact that his separate damages arose out of the same accident, but by the fact that they arose out of the same bodily injury . . . Given the but-for relationship between the underlying injury and the derivative injury of bystander emotional distress, the bystander's emotional distress is causally connected to the underlying injury. Bystander emotional distress, therefore, by its very nature, results from and arises out of the underlying personal injury or death." (Citations omitted; emphasis in original; internal quotation marks omitted.) Velecela v. All Habitat Services, LLC, 322 Conn. 335, 340-41, 141 A.3d 778 (2016).
There is no appellate opinion as to whether a bystander emotional distress claim can be maintained if the cause of action upon which its viability depends is extinguished. However, our Supreme Court has provided an opinion on the survivability of another type of derivative claim, that of loss of consortium. This court seeks to apply the Supreme Court's reasoning as to that derivative claim to this derivative claim of bystander emotional distress.
In Voris v. Molinaro, 302 Conn. 791, 31 A.3d 363 (2011), our Supreme Court articulated three policy reasons as to why a loss of consortium claim should not survive the settlement of the predicate claim. " The same rationale that mandates the joinder of loss of consortium claims with the claims of the directly injured party also should apply to bar a claim for loss of consortium once the predicate action has been settled." Id., 799. The first policy reason, concerning the interrelationship of the damages claims of spouses is not applicable here. The other two policy reasons do translate from a loss of consortium claim to a bystander emotional distress claim: " Second, [i]t is inherent in the nature of a derivative claim [such as loss of consortium] that the scope of the claim is defined by the injury done to the principal . . . Accordingly, the loss of consortium claim is lost, diminished or barred when the injured person's claim is so affected . . . When the claims become untethered from each other, inconsistent outcomes may occur. Thus, the claims are not necessarily resolved on the basis of the sequela of the principal's injury.
" Third, requiring both claims to be resolved simultaneously promotes efficiency and conserves judicial resources by protecting against the repeated litigation of the same underlying issues . . . This is because, [i]n order to subject a defendant to liability to a deprived spouse for illness or bodily harm done to the impaired spouse, all of the elements of a tort action in the impaired spouse must [be proven] to exist, including the tortious conduct of the tortfeasor, the resulting harm to the impaired spouse and the latter's freedom from such fault as would bar a recovery by him or her, as for example, contributory negligence . . . By negotiating and settling their claims, both an injured party and a tortfeasor hope to avoid the expense and uncertainty of litigating the tort action at trial and to resolve their dispute once and for all. Allowing the loss of consortium claim to proceed following the settlement of the injured party's claim undermines these goals. Additionally, because only a single 'per person' liability insurance policy limit may be available to satisfy both the direct injury and the accompanying loss of consortium claim . . . fairness dictates that both claims should be evaluated and resolved together. Specifically, if . . . the insurance carrier settled for the full per person limit with the primary plaintiff, the insurance policy would provide no coverage for the consortium claim. If we were to adopt the plaintiff's advocated rule and allow a consortium claim to proceed following the settlement of the predicate action, whenever a claim has been settled for the per person limit with the directly injured person, an insured would be left without coverage for the remaining consortium claim." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., 799-801.
As our Supreme Court has opined that a derivative cause of action is extinguished upon the settlement of the predicate claim, the plaintiff's cause of action for bystander emotional distress, a derivative claim, was extinguished upon the defendant's settlement of the claim of the plaintiff's brother. There is no genuine issue of material fact and the defendant is entitled to summary judgment on this ground.
II. Policy Language Exclusions
In the alternative, the defendant argues that its policy language precludes separate coverage of a bystander emotional distress claim in which the plaintiff does not assert physical injury. In support of this ground, the defendant offers only unauthenticated documents which the court cannot consider. Thus, the court is unable to review the defendant's policy language to ascertain whether it is the same or similar to that which was analyzed by our Supreme Court in Taylor v. Mucci, 288 Conn. 379, 382, 952 A.2d 776 (2008). As a result, the motion for summary judgment cannot be granted on this alternative ground.
ORDER
There are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law. The defendant's motion for summary judgment (112.00) is granted. The objection to same (119.00) is overruled.