Opinion
No. X03 CV044022180
June 7, 2006
MEMORANDUM OF DECISION PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
In this declaratory judgment action, the plaintiff, Connecticut Medical Insurance Company seeks a judicial determination of the rights and liabilities of the parties under a professional liability insurance policy. The defendant, John Kulikowski, initially sued Dr. James Patrick Ralabate, M.D., Anne Ciambriello, an advanced practice registered nurse ("A.P.R.N."), and Primary Care Associates, P.C., for injuries allegedly sustained by him as a result of medical negligence. The policy in question, for the year 1999, provided coverage limits of $1 million per medical incident with a $4 million annual aggregate. In partial settlement of the underlying lawsuit, the plaintiff paid the defendant the policy limit of $1 million on behalf of Ralabate. The defendant maintains, however, that there is a separate $1 million available to him under the policy as to Ciambriello, who he claims to be a separate insured under the policy. The issue before the court is whether there is a genuine issue of material fact as to whether Ciambriello is a separately insured individual under the terms of the policy, which may entitle the defendant to $1 million separate from and in addition to the monies already paid by the plaintiff on behalf of Ralabate.
I
"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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 278 Conn. 305, 314 (2006).
II
The defendant claims that there is a genuine issue of material fact as to whether Ciambriello is a named insured under the policy. In support of this argument, the defendant first argues that this court should find that Ciambriello is a named insured because the plaintiff's correspondence with the defendant's counsel and other documents, presumably obtained in the course of discovery in the underlying malpractice action, consistently refer to Ciambriello as an insured. Second, the defendant asserts that there is a factual dispute as to which document constitutes the policy's declaration page. Third, the defendant argues that Ciambriello is sufficiently referenced in the declarations page to qualify her as named insured under the policy. The plaintiff claims that each of the defendant's arguments is misguided and further argues that there is no genuine issue of material fact as to whether Ciambriello is a named insured.
A
The defendant asserts that Ciambriello is sufficiently identified as an insured in the plaintiff's correspondence with the defendant's counsel and in discovery documents obtained in the course of the underlying proceedings so that she qualifies as a named insured under the policy. This is insufficient to prove that a separate limit applies to Ciambriello under the policy. "[A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy . . ." (Internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005). Because the validity and intent of the policy must be construed from the policy's text and its declarations, and not from external evidence, correspondence between the parties and answers to interrogatories are not material to the policy's interpretation. In addition, the documents pointed to by the defendant do not resolve the issue as to whether Ciambriello is a named insured under the policy. The interrogatories in question merely inquire as to whether Ralabate and Ciambriello have coverage under the policy and, if so, the amount of the coverage. In other words, the interrogatories inquire as to the amount of coverage under the policy and not the coverage available as to each defendant. The response that the coverage under the policy is "$1,000,000/$4,000,000" is fully consistent with the position that the plaintiff has taken throughout the course of the litigation, that is, that the total available coverage under the policy is "$1,000,000/$4,000,000" for both defendants.
The defendant also argues that the plaintiff's discovery responses essentially serve as a waiver of rights under the policy and create a new policy with separate limits, where a policy with single limits previously existed. This assertion is unpersuasive. It is well settled that insurance contacts cannot be reformed under the guise of a waiver, which is essentially what the defendant asks the court to do here. See Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 777, 653 A.2d 122 (1995). "[U]nder no conditions can the coverage or restrictions on coverage be extended by waiver and estoppel." (Internal quotation marks omitted.) Masonicare Corp. v. Marsh USA, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0821900 (March 16, 2005, Wagner, J.T.R.), quoting Linemaster Switch Corp. v. Aetna Life Casualty Corp., Superior Court, judicial district of Hartford, Docket No. CV 91 0396432 (July 31, 1995, Corradino, J.) ( 15 Conn. L. Rptr. 223). The limited waiver requirements do not permit extending coverage to Ciambriello where such coverage was not contemplated in the initial policy.
See Heyman Associates No. I v. Ins. Co. of Pennsylvania, supra, 231 Conn. 777 ("In the insurance context, moreover, it has been recognized that 'a contact, under the guise of waiver, may not be reformed to create a liability for a condition specifically excluded by the specific terms of the policy.' . . . This limitation on the applicability of waiver to an insurance contract recognizes that because waiver requires the relinquishment of a known, and therefore existing, right within the insurance contract, a party cannot create through waiver coverage for a claim that the parties expressly had excluded from that contract").
B
The defendant next claims that a genuine issue of material fact exists as to which document actually constitutes the proper declaration. The plaintiff submitted a copy of the 1999 declaration page that does not indicate "Paramedical Employee Coverage." The plaintiff also submitted copies of the declaration pages from 1997 and 1998 policies. These include the typewritten addition, "2 Nurse Practitioners" under "Paramedical Employee Coverage." The affidavit of Denise Funk, the chief executive officer of the plaintiff, submitted in support of the motion for summary judgment, states that the 1999 declaration was intended to and should have contained the additional notation, "2 Nurse Practitioners" under "Paramedical Employee Coverage."
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). "It is especially appropriate to hold an affidavit [or supporting documentation] submitted by a moving party to a stringent standard." (Internal quotation marks omitted). Id., 680. Although Funk alleges that she has personal knowledge of the matters to which she attests, she does not indicate that any of the proposed exhibits of the declarations pages are true and accurate copies of the original documents. Nevertheless, "[a]lthough these documents have not been authenticated and ordinarily would not be considered . . . the court will consider them in the interest of judicial economy because both parties rely on them and the defendants have not objected." (Citation omitted.) Scully v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 05 4010763 (September 13, 2005, Booth, J.). See also Cavalier v. Bank One N.A., Superior Court, judicial district of New Haven, Docket No. CV 03 0480474 (November 5, 2004, Skolnick, J.) ("where both sides rely on uncertified documents to which no objection has been made to the other's use of these documents, this court has allowed them to be considered as evidence in a motion for summary judgment").
In his memorandum of law in opposition to the plaintiff's motion for summary judgment, the defendant submitted a copy of the 1999 declaration page that contains the handwritten notation "2 A.P.R.N. listed in system" under "Paramedical Employee Coverage." It is not known who wrote this. The defendant claims that since the two parties are in dispute as to which document constitutes the declaration, then summary judgment is improper since this dispute presents a genuine issue of material fact.
The plaintiff argues, however, that the handwritten notation is of no effect because it is immaterial to the issue of whether Ciambriello is a separate named insured under the policy. The plaintiff does not dispute that there was "Paramedical Employee Coverage" available for two nurse practitioners, one of whom was Ciambriello. Indeed, Funk's affidavit states that such coverage should have been noted in the 1999 declaration page. The plaintiff's position is not that the nurse practitioners are not insured under Ralabate's policy, but that they are not "named insureds" for which a separate limit of liability is available. The court finds that this distinction makes any dispute over which declaration page is applicable wholly immaterial since it does not affect the outcome of the case.
See Pane v. Danbury, 267 Conn. 669, 675, 841 A.2d 684 (2004) (defining a material fact as "a fact which will make a difference in the result of the case").
C
The defendant argues that Ciambriello is sufficiently referenced in the declarations to make her a named insured under the policy, or, at the very least, summary judgment should be denied because the policy language is ambiguous, thus creating a genuine issue of material fact. There is no doubt that Ciambriello's name does not appear on either of the declaration pages provided to the court. On the declaration page provided by the defendant the phrase "2 A.P.R.N. listed in system" is handwritten below the section labeled "Paramedical Employee Coverage." On the declaration pages for previous years, which were also presented to the court, the phrase "2 Nurse Practitioners" is typewritten in the same section. Nowhere on any of the declaration pages presented to the court does Ciambriello's name or any other name appear while Ralabate's name and address appears on all of them under the section specifying "Name and Address of Insured." Nevertheless, the defendant claims that the references to "2 nurse practitioners" in the declarations make Ciambriello a named insured as well.
The defendant argues that the reference to the nurse practitioners creates an ambiguity which must preclude summary judgment. In support of this claim, the defendant cites two cases in which the court included individuals as "named insureds" despite the fact that they were not explicitly named in the declarations. See Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 538, 687 A.2d 1262 (1996) (finding that an individual was covered despite the fact that the only named insured was the company); Ceci v. National Indemnity Co., 225 Conn. 165, 167, 622 A.2d 545 (1993) (same).
These cases are easily distinguishable from the present case. Both Hansen and Ceci involved disputes over "family member provisions." See Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 543; Ceci v. National Indemnity Co., supra, 225 Conn. 173. The "family member provisions" would be meaningless if the court ruled that the corporation was the only "named insured" because corporations do not have family members. Both courts relied on a canon of construction of insurance policies stating that a policy should not be interpreted so as to render any part of it superfluous. See e.g., Ceci v. National Indemnity Co., supra, 225 Conn. 175. The court in Ceci goes on to note that "[w]ithout this [family member] section, there would have been no ambiguity." Id., 174. Because of this family member provision and because the policy covered a corporation, not an individual, the court needed to resolve the ambiguity to give meaning to the entire policy. The present case does not involve either a "family member provision" or an insurance policy covering a corporation. Thus, the reasoning of Hansen and Ceci are inapplicable.
See Defendant's Exhibit D, September 9, 1996 Letter ("Effective on 10/1/96 the corporate policy for Primary Care Associates should be cancelled. Dr. Ralabate will be the only physician who is a shareholder at that time").
Instead, the court finds that the present case is similar to Dunn v. Progressive Northwestern Ins. Co., Superior Court, judicial district of New London, Docket No. CV 0563462 (November 4, 2003, Hurley, J.T.R.) ( 35 Conn. L. Rptr. 753). In Dunn, the court distinguished the reasoning in Hansen from cases in which an individual is explicitly a "named insured" on the declaration page and concluded that identification of an individual as an insured clears up any possible ambiguity with regard to who is a named insured under the policy. Id. As the court noted in Ceci, "[u]nder Connecticut law, the named insured refers only to the name actually appearing on the insurance policy." (Internal quotation marks omitted.) Ceci v. National Indemnity Co., supra, 225 Conn. 172; see also State Farm Fire Casualty Ins. Co. v. Sayles, 289 F.3d 181, 185 (2d Cir., 2002) (applying Connecticut law). Therefore, where an individual's name does indeed appear on the declaration page, there is no ambiguity as to who is the named insured.
In the present case, there is no ambiguity as to who is the named insured because the only name appearing on any declaration page is Ralabate. As stated above, Ciambriello's name is not on any of the declaration pages. Consequently, because Ciambriello is not a named insured under the policy, there is no genuine issue of material fact as to whether Ciambriello is a named insured under the policy. While Ciambriello was insured within the meaning of Section VII.G.1 of the policy, she was not a named insured. The policy coverage as to her actions in connection with the underlying lawsuit was limited to $1 million, the same limit applicable to Ralabate, which has already been paid. Her alleged actions combined with his constituted one medical incident within the meaning of the policy.
Section VII., G. of the policy, in relevant part, provides, "Medical Incident means any act or omission in the furnishing of professional services: 1. Under Individual Professional Liability — by the insured, any employee of the insured, or any person acting under the personal direction, control, or supervision of the insured while acting within the customary scope of the insured's practice specialty or classification as described in the application for insurance and specified in the declaration."
Accordingly, the plaintiff's motion for summary judgment is hereby granted.