Opinion
No. 563462
November 4, 2003
MEMORANDUM OF DECISION
Before the court is one defendant's motion for summary judgment. In this action, the plaintiff, Lateisha Dunn, seeks to recover uninsured motorist benefits from the defendants, Progressive Northwestern Insurance Company (Progressive) and Harleysville Worcester Insurance Company (Harleysville). The plaintiff filed a two-count complaint on September 16, 2002. In the first count, the plaintiff alleges that in December 2001, while she was employed as a counter clerk at Evan's Mobil Station in Pawcatuck, Connecticut, an automobile operated by Sally Gilmore crashed through the window of the station injuring the plaintiff. According to the plaintiff, Gilmore was operating the car without automobile liability insurance.
In the first count of the complaint, the plaintiff alleges that on the date of the collision she was covered by an insurance policy issued by Progressive as a resident relative of the named insured, Colin Jarvis. The plaintiff alleges that in the policy, Progressive agreed to pay all sums that an insured is legally entitled to recover as damages for bodily injuries from the owner or operator of an uninsured vehicle. The plaintiff further alleges that Progressive has failed to fairly and adequately compensate her under the uninsured motorist terms of the policy.
In the second count, the plaintiff alleges that she was also insured under the policy that Harleysvile issued to Evan's Mobil Station. The plaintiff alleges that she was covered as an employee of the station because Harleysville agreed to pay all sums which an insured is legally entitled to recover as damages for bodily injury from the owner or operator of an uninsured vehicle as the result of an accident relating to the ownership, maintenance, and use of such uninsured vehicle. The plaintiff further alleges that Harleysville has failed to fairly and adequately compensate her under the uninsured motorist terms of the policy. The plaintiff seeks damages from both defendants.
On June 5, 2003, Harleysville filed a motion for summary judgment on the second count and a memorandum in support. The plaintiff filed a memorandum in opposition on August 14, 2003. On August 19, 2003, Harleysville filed a reply to plaintiff's memorandum in opposition.
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). "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." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citation omitted; emphasis in original; internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Id., 751.
Harleysville moves for summary judgment on the ground that there is no genuine issue of material fact and it is entitled to judgment as a matter of law because the plaintiff is not an insured under the applicable policy and therefore the uninsured motorist coverage contained in the policy is not applicable. Harleysville argues that the plaintiff does not come within the scope of the definitions of "an insured" in the policy. In support of its motion, the defendant submits the following evidence: (1) a copy of the insurance policy #BA-5E6657, all policy terms from 01/01/01 to 01/01/02 and a letter from the assistant vice president of the insurance company certifying that this is the policy at issue; and (2) a sworn affidavit of Ellison Evans, the named insured and owner of Evan's Mobil.
In opposition, the plaintiff argues that the first two parts of the definition of who is "an insured," are ambiguous and the ambiguity should be resolved in her favor. The plaintiff claims that the definition clearly implies that the policy covers employees acting within the scope of their employment. The plaintiff argues that because she was acting within the course of her employment at the time of her injury, coverage should be extended to her. In support of her motion, the plaintiff submits her own signed and sworn affidavit.
The question presented to the court is whether the language of the defendant's insurance policy is ambiguous as it applies to the plaintiff. "Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question . . . construction of a contract of insurance presents a question of law . . ." Travelers Ins. Co. v. Namerow, 257 Conn. 812, 827, 778 A.2d 168 (2001). "[T]he terms of an insurance policy are to be construed according to the general rules of contract construction . . . 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 . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted." (Internal quotation marks omitted.) Schilberg Integrated Metals v. Continental Casualty, supra, 263 Conn. 267.
"Our jurisprudence makes clear, however, that [a]lthough ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied . . . Indeed, courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Id., 268. In addition, "[t]he doctrine of contra proferentem applies . . . only if . . . the language of the insurance policy is ambiguous. Thus, [the court] must decide whether, reading the policy from the perspective of a reasonable layperson in the position of the purchaser of the policy, the policy is ambiguous." (Internal quotation marks omitted.) Israel v. State Farm Mutual Automobile Ins. Co., 259 Conn. 503, 509, 789 A.2d 974 (2002). "In construing the document, we look at the [policy] 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." (Internal quotation marks omitted.) Id.
"[T]he contra-insurer rule is based upon the doctrine of contra proferentem, which literally means `against the offeror' or drafter of the language." (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 545, 687 A.2d 1262 (1996).
The section of the policy that applies to uninsured motorists defines "an insured" as: "(1) You; (2) If you are an individual, any `family member;' (3) Anyone else `occupying' a covered `auto' or a temporary substitute for a covered `auto.' The covered `auto' must be out of service because of its breakdown, repair, servicing, loss or destruction; (4) Anyone for damages he or she is entitled to recover because of `bodily injury' sustained by another `insured.'" (Defendant's Memorandum, Exhibit A.). According to its terms, this section applies to the other policy sections including the business auto coverage provisions.
With regard to the first definition, Harleysville argues the definition of "You," refers to EE Tire, Inc., d/b/a Evan's Mobil Ellison Evans. Harleysville points out that the business auto coverage provision of the policy also provides that "throughout this policy the words `you' and `your' refer to the Named Insured shown in the Declarations," and that the common declarations page for the policy identifies the "insureds" as "EE Tire, Inc., d/b/a Evan's Mobil Ellison Evans," of 87 West Broad Street, in Pawcatuck, Connecticut. (Defendant's Memorandum, Exhibit A.) Harleysville argues that because the plaintiff is not identified as a named insured on the declarations page, she does not come within the scope of the first definition of "an insured." The plaintiff, in response, relies on a statement in which the Supreme Court noted that "the designation of `You' as the insured in . . . the uninsured motorist endorsement is nonsensical because a corporation cannot be compensated for `bodily injury' which is the subject matter of the coverage." Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 546, 687 A.2d 1262 (1996).
In Hansen, the court considered whether the plaintiff's decedent was entitled to recover uninsured motorist benefits under a garage insurance policy issued to a closely held corporation, owned and operated by the decedent and his wife. Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 538. The court noted that the defendant issued the policy "to West Wharf Garage, Inc., the corporation" and that the corporation was the only insured identified on the policy. Id., 538. The court found that the definition of "you" was ambiguous because of "the individual oriented and family oriented language throughout the uninsured motorist endorsement." Id., 542. In its analysis, the court explained: "Although the issue in this case does not solely revolve around family member language, we believe that the starting point here is that [b]ecause corporations do not have families, uninsured motorist endorsements containing family member language should not be appended to business automobile liability insurance policies." (Internal quotation marks omitted.) Id., 543. According to the court, "the same approach is warranted for language oriented toward individuals." Id. The court reasoned that "when a corporate or governmental entity is identified as the named insured in an insurance policy that uses coverage terms appropriate for coverage issued to individuals, courts chastise insurers for employing those forms rather than using coverage terms that are appropriate for insurance policies issued to various types of businesses or governmental entities." (Emphasis in original; internal quotation marks omitted.) Id., 547. The court construed the policy in favor of the insured and held that the plaintiff's decedent was entitled to coverage because "the individual oriented language, combined with the family oriented language, interspersed throughout the uninsured motorist endorsement provided to the corporation injected confusion and uncertainty into the coverage afforded by the policy." (Emphasis in original) Id., 548; see also Ceci v. National Indemnity Co., 225 Conn. 165, 167, 622 A.2d 545 (1993) ("the policy identified Victor Ceci Refuse, Inc. as the `named insured' and did not identify any individual officers or employees").
The Hansen case would have been analogous to this case if EE Tire, Inc., d/b/a Evan's Mobil was the only named insured on the policy. If that were so, the terms appropriate for coverage of individuals would have rendered the policy language ambiguous as it did in Hansen. In this case, however, both the corporation, EE Tire, Inc., d/b/a Evan's Mobil, and an individual, Ellison Evans, are the named insureds on the declarations page. The identification of Ellison Evans as an insured clears up any possible ambiguity with regard to the term "you." The term refers to the individual named in the policy, which clearly does not include the plaintiff. As noted by the court in Ceci v. National Indemnity Co., supra, 225 Conn. 172, "[u]nder Connecticut law, the named insured refers only to the name actually appearing on the insurance policy." (Internal quotation marks omitted.) Therefore, the court finds no ambiguity with regard to the first definition as applied to the plaintiff.
The defendant also argues that the plaintiff does not come within the meaning of the second definition, which refers to a "family member." "Family member" is defined in the policy to be "a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child." (Defendant's Memorandum, Exhibit A.) The policy specifically identifies Ellison Evans as a named insured under the policy, and Harleysville argues that the plaintiff is not a "family member" because the evidence shows that she is not related to Evans by blood, marriage or adoption, she is not and never was a resident of his household, and she is not and never has been his ward or foster child. (Defendant's Memorandum, Exhibit B.) The plaintiff argues that in Hansen, the court deemed the term ambiguous because, as in this case, "[s]uch . . . terms . . . may have little applicability in the business auto policy context, wherein the named insured is often a corporate business entity." (Internal quotation marks omitted.) Id., 545. The plaintiff further relies on Ceci v. National Indemnity Co., in which the court stated: "Because corporations do not have families, uninsured motorist endorsements containing family member language should not be appended to business automobile 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." Ceci v. National Indemnity Co., supra, 225 Conn. 174-75.
In Ceci, the issue was whether the plaintiff was entitled to uninsured motorist benefits pursuant to a business automobile policy that the defendant insurer had issued to the plaintiff's employer, V Co. The plaintiff was the brother of the sole shareholder in V Co., a small family-operated business, located at the address where the plaintiff resided with his brother. Id., 169. The policy provided uninsured motorist coverage to the insured which it defined as including "you and any family member." Id., 171. As in the present case, the policy defined "family member" as "a person residing in the household of and related to the named insured by blood, marriage or adoption who is a resident of your household . . ." Id., 171. The court rejected the defendant's argument that the inclusion of "family member" language in the policy did not create any ambiguity in the policy. In finding for the plaintiff the court explained that, "The endorsement attached to the policy issued to Victor Ceci Refuse, Inc., is used by the defendant in all of its business policies. The defendant could have clarified or omitted the problematic language to provide notice to the Cecis of the precise nature of the coverage that was being purchased. It failed to do so, and instead highlighted these significant changes to the insured, thereby creating the ambiguity in the policy . . . Having caused the problem, the defendant cannot now ignore it." Id., 176.
Hansen and Ceci are, however, distinguishable because unlike the present policy, the policies in those cases did not also name an individual as the insured. In Ceci, the court specifically stated, "the insurance policy could have identified the corporate officers . . . or the sole stockholder . . . as a `designated insured.' This would have easily removed any ambiguity." Id., 174. In the present case, Ellison Evans, the owner of EE Tire, Inc., d/b/a Evan's Mobil, is identified as a named insured on the policy, thus removing any ambiguity as to both the terms "you" and "family member." Therefore, the second definition of "an insured" is not ambiguous as it applies to the plaintiff.
Both Hansen and Ceci are also distinguishable from the present case. In both cases, the persons seeking uninsured motorist coverage under the policies either owned or were related to persons who owned the covered business. In Hansen, the court stated that certain definitions of an insured were "consistent with one seeking coverage for shareholders of a family corporation." Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 546. In Ceci, the court found that "[a]n endorsement that specifically added coverage for `family members,' as did this one, would reasonably be understood as providing uninsured motorist insurance for members of the Ceci family independent of whether they were occupying a covered automobile at the time of injury." Ceci v. National Indemnity Co., supra, 225 Conn. 173. Here, it is undisputed that the plaintiff is not a member of Evan's family as that term is defined in the policy. (Defendant's Memorandum Exhibit B.) But see Agosto v. Aetna Casualty Surety Co., 239 Conn. 949, 687 A.2d 1267 (1996), in which the court held that the use of family oriented language in a policy issued to the state creates an ambiguity on the issue of whether the insured's employees were covered under the policy.
The defendant argues next that the plaintiff does not come within the meaning of the third definition of who is "an insured" because she makes no allegations that she was "occupying a covered automobile" at the time of the alleged incident, but instead alleges that she was in a building, standing behind a counter in the store. The word "occupying" is defined in the policy as meaning "in, upon, getting in, on, out or off." Further, the defendant argues that the only vehicle mentioned in the complaint is the one operated by Gilmore, which is not a covered vehicle under the policy. Therefore, the defendant argues that the third definition does not apply as to the plaintiff. The court does not find any ambiguity as to the third definition. The plaintiff does not claim that this automobile was covered under the policy and the court does not find any reference to the vehicle within the policy. Further, the plaintiff does not allege that she was "occupying" a "covered auto" as that term is defined in the policy and instead alleges that she was standing inside a building. Therefore, as to the third definition, the terms are not ambiguous as to the plaintiff.
Gilmore's vehicle was a 1989 Chrysler automobile bearing a Connecticut license plate 411-POL. No such vehicle is listed in the commercial auto policy coverage declarations, or on the repairer plates identified in the schedule of other coverages and endorsements contained in the policy nor is that license included in the list. (Defendant's Memorandum, Exhibit A.)
Finally the defendant submits that the fourth definition does not apply on its face because the plaintiff is the only individual making any claim of any bodily injury in the case and she is not making a claim of damages because of bodily injury sustained by some other alleged insured. The court agrees with Harleysville as to the fourth definition. Therefore, as to the fourth definition, the tents do not apply on its face and are not ambiguous as to the plaintiff.
The defendant has carried its burden of demonstrating to the court that the uninsured motorist coverage of the subject policy is not ambiguous and does not apply to the plaintiff. Accordingly, because there are no material facts in dispute and the defendant is entitled to judgment as a matter of law, the court grants Harleysville's motion for summary judgment.
D. Michael Hurley, JTR