Opinion
CV186083541S
12-02-2019
Enrique Hernandez v. Progressive Direct Insurance Company
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#105)
Wilson, J.
FACTS
On August 8, 2018, the plaintiff, Enrique Hernandez, filed a complaint against the defendant, Progressive Direct Insurance Company. The plaintiff alleges the following facts in the complaint. The plaintiff, through his family, was insured by way of a motor vehicle insurance policy issued by the defendant, which provided for $100,000 per person in uninsured/underinsured motorist coverage (policy). On May 19, 2017, the plaintiff was operating his scooter on Coe Avenue in Meriden, Connecticut, and Lisa Beck was operating a motor vehicle in the opposite direction when she negligently collided with the plaintiff. As a result of that incident, the plaintiff suffered injuries and incurred expenses. Lisa Beck’s vehicle carried $20,000 of liability insurance, which has been exhausted. The plaintiff alleges that the defendant issued a policy to his family which covered the plaintiff in the event he sustained injuries in a collision caused by an underinsured motorist, covering the period, including the date of the accident, May 19, 2017, and which provided $100,000 in underinsured motorist coverage. The plaintiff further alleges that due to the insufficiency of the Beck policy to adequately compensate him for his injuries and losses, the plaintiff timely filed a notice of claim with the defendant to recover benefits under the underinsured motorist coverage portion of the policy. The defendant wrongfully declined to pay benefits to the plaintiff under the policy.
On October 23, 2018, the defendant filed an answer whereby it admits the existence of the policy and that it has declined coverage, denies it owed a duty to the plaintiff, and leaves the plaintiff to his proof as to the remaining allegations. The policy issued by the defendant was issued to Haydee Santiago as a named insured with Herberto Hernandez as a household resident. Santiago and Hernandez are the plaintiff’s parents. FTR, August 5, 2019. The policy lists three covered vehicles, a 2013 Toyota Venza, a 2006 Toyota Camry and a 2001 F150. The plaintiff’s scooter is not listed on the policy.
Additionally, the defendant’s answer alleges three special defenses, including that the uninsured/underinsured motorist coverage portion of the policy contains exclusions that preclude the plaintiff’s claim. The plaintiff, on July 30, 2019, filed a reply to the defendant’s special defenses and denies that the exclusions are applicable.
On January 30, 2019, the defendant moved for summary judgment on the ground that there is no genuine issue of a material fact that the policy contains exclusions that preclude the plaintiff from recovery under the uninsured/underinsured portion of the policy as a matter of law. Specifically, the defendant argues that the plaintiff was operating a motor vehicle at the time of the accident that he owned, was available for his regular use, and was not a covered motor vehicle under the policy. The defendant attaches the following exhibits: an uncertified copy of the policy’s declarations page; a certified copy of the policy; an uncertified copy of the defendant’s request for admissions, to which the plaintiff did not respond; and an uncertified copy of the Connecticut Uniform Police Crash Report (report) from the accident. The plaintiff filed an objection to the defendant’s motion for summary judgment on July 30, 2019, and argues that the coverage exclusion provisions set forth in the policy by the defendant do not apply in this situation because the plaintiff’s scooter is not considered a motor vehicle that is owned or operated by the plaintiff under the exclusions portion of the policy. The plaintiff attaches as exhibits unauthenticated and/or uncertified information regarding the registration of motor-driven cycles and motor scooters. Oral argument was heard on the motion at short calendar on August 5, 2019. The court requested additional briefing as to other states’ holdings regarding whether a scooter is a motor vehicle with respect to uninsured/underinsured motorist policies. These briefs were filed by both the plaintiff and the defendant on August 19, 2019, and August 21, 2019, respectively.
More particularly, the report was attached as an exhibit to the request for admissions, and although the copy of the declarations page attached as an exhibit to the motion for summary judgment was not itself certified, an exact copy of the same, attached to the request for admissions exhibit, was certified. In regards to exhibits which are not properly authenticated or certified, our Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Therefore, in the present matter, because there have been no objections to any exhibits, the court will consider all evidence that has been submitted.
As with the defendant’s exhibits, there being no objection to the same, the court will consider all evidence that has been submitted. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., supra, 263 Conn. 273.
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.) Graham v. Commissioner of Transportation, 330 Conn. 400, 414-15, 195 A.3d 664 (2018). "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 ..." (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 191, 177 A.3d 1128 (2018). "A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).
"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.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
"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.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019).
"The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents ... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Parnoff v. Aquarion Water Co. of Connecticut, 188 Conn.App. 153, 165, 204 A.3d 717 (2019).
"The court’s task in reviewing the parties’ submissions is not to decide any factual issues they raise, but only to decide if, in fact, they raise any such factual issues, as by demonstrating a potential inconsistency or conflict in the admissible evidence concerning one or more facts upon which the movant’s right to judgment depends. In the event the court determines that there is such a genuine issue of material fact, it must deny the motion for summary judgment and leave resolution of the issue to the trier of fact at trial, who will hear and evaluate the evidence on both sides of that issue firsthand before deciding it." (Emphasis in original.) Teodoro v. Bristol, 184 Conn.App. 363, 374, 195 A.3d 1 (2018).
Moreover, the interpretation of an insurance contract presents a question of law for which summary judgment may be appropriate. See Misiti, LLC v. Travelers Property Cas. Co. of America, 308 Conn. 146, 154, 61 A.3d 485 (2013). " ‘It is the function of the court to construe the provisions of the contract of insurance ... The [i]nterpretation of an insurance policy ... involves a determination of the intent of the parties as expressed by the language of the policy ... [including] what coverage the ... [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of 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 ... [giving the] words ... [of the policy] their natural and ordinary meaning ... [and construing] any ambiguity in the terms ... in favor of the insured ...’ (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., supra, 256 Conn. at 351-52, 773 A.2d 906; accord Springdale Donuts, Inc. v. Aetna Casualty & Surety Co. of Illinois, 247 Conn. 801, 805-06, 724 A.2d 1117 (1999). This rule of construction that favors the insured in case of ambiguity applies only when the terms ‘are, without violence, susceptible of two [equally reasonable] interpretations ...’ (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 796, 967 A.2d 1 (2009), quoting Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous.’ (Internal quotation marks omitted.) Springdale Donuts, Inc. v. Aetna Casualty & Surety Co. of Illinois, supra, at 806, 724 A.2d 1117, quoting Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992)." Misiti, LLC v. Travelers Property Cas. Of America, supra, 308 Conn. 154-55.
In the present case, the defendant argues that the plaintiff is not entitled to uninsured/underinsured motorist benefits under the policy because the plaintiff’s claim is barred by the coverage exclusion provisions set forth in the policy. Specifically, the plaintiff was operating a motor vehicle he owned and the motor vehicle was not a covered vehicle under the policy. The plaintiff counters that a scooter is not a motor vehicle as a matter of law and, therefore, the exclusion provisions in the policy are inapplicable.
General Statutes § 38a-336 governs claims for uninsured and underinsured motorist coverage and provides in relevant part: "Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages because of bodily injury, including death resulting therefrom, from owners or operators of uninsured motor vehicles and underinsured motor vehicles ... No insurer shall be required to provide uninsured and underinsured motorist coverage to (i) a named insured or relatives residing in the named insured’s household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle ... that is owned by the named insured, except as provided in subparagraph (D) of this subdivision, or (ii) any insured occupying an uninsured or underinsured motor vehicle ... that is owned by such insured." General Statutes § 38a-336(a)(1)(A) and (C).
The pertinent language in the policy states that the uninsured/underinsured motorist coverage "will not apply ... to bodily injury sustained by any person while using or occupying" "a motor vehicle that is owned by or available for the regular use of you, a relative, or a rated resident" or "a motor vehicle owned by the injured insured person which is not a covered auto ..." Def.’s Mem. Supp. Mot. Summ. J., Ex. B, pp. 11-12. The defendant argues that the policy language is unambiguous and a scooter is a motor vehicle; however, the plaintiff counters that the policy’s definition of motor vehicle is ambiguous because it is not clearly defined. The plaintiff also argues that there is a genuine issue of material fact as to whether the exclusions apply to the policy because motor vehicle is undefined and, thus, it is unclear whether the plaintiff was operating a "motor vehicle" when the accident occurred. The court must first determine whether a scooter is to be considered a motor vehicle under this underinsured motorist policy.
The only time a Connecticut court has had the opportunity to address the definition of a scooter as it relates to the uninsured/underinsured motorist statutes was in Brochu v. Progressive Northwestern Insurance Co., Superior Court, judicial district of Hartford, Docket No. CV-07-5012464-S (December 19, 2007, Miller, J.), aff’d, 114 Conn.App . 902, 969 A.2d 879 (2009). In that case, the court granted summary judgment without reaching this issue because the plaintiff had breached their duty to cooperate.
As previously stated, "[u]nder our law, the terms of an insurance policy are to be construed according to the general rules of contract construction ... The determinative question is the intent of the parties, that is, what coverage the ... [plaintiff] expected to receive and what the defendant 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 ... However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally reasonable] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted ... [T]his rule of construction favorable to the insured extends to exclusion clauses." (Citation omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 796, 807 A.2d 467 (2002).
As stated above, "[i]n Connecticut, insurers are required by statute to provide underinsured motorist coverage to their policyholders." Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 712, 59 A.3d 207 (2013). Additionally, General Statutes § 38a-334(a) provides in relevant part: "The Insurance Commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies ... Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies ..." "Section 38a-334-6(c) of the Regulations of Connecticut State Agencies provides minimum coverage that insurers must provide when issuing uninsured motorist coverage and limits uninsured motorist coverage by providing exclusions. Section 38a-334-6(c) provides: ‘The insurer’s obligations to pay [uninsured motorist coverage] may be made inapplicable: (1) [t]o any claim which has been settled with the uninsured motorist without the consent of the insurer; (2) if the uninsured or underinsured motor vehicle is owned by (A) the named insured or any relative who is a resident of the same household or is furnished for the regular use of any of the foregoing, (B) a self insurer under any motor vehicle law, or (C) any government or agency thereof; (3) to pay or reimburse for workers’ compensation or disability benefits.’ " Diaz v. Progressive Direct Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-14- 6047082-S (November 18, 2015, Wilson, J.) (61 Conn.L.Rptr. 347, 349).
It is important to keep in mind that Connecticut courts have consistently held that "[u]nderinsured motorist coverage is first-party coverage and, in that sense, the coverage follows the person not the vehicle." (Internal quotation marks omitted.) Lowrey v. Valley Forge Ins. Co., 224 Conn. 152, 158, 617 A.2d 454 (1992). Here, the plaintiff is covered under the policy because he alleges he is family to the policyholder and, therefore, he is a relative, which is defined in the policy as a "person residing in the same household as [the policyholder], and related ... by blood, marriage or adoption ..." Def.’s Mem. Supp. Mot. Summ. J., Ex. B, p. 2. In the uninsured/underinsured coverage portion of the policy, motor vehicle is not a defined term. Def.’s Mem. Supp. Mot. Summ. J., Ex. B, pp. 10-13. An uninsured motor vehicle, however, is defined generally as a "land motor vehicle." Def.’s Mem. Supp. Mot. Summ. J., Ex. B, p. 10. In the general definitions portion of the policy, an auto is defined as "a land motor vehicle: a. of the private passenger, pickup body, or cargo van type; b. designed for operation principally upon public roads; c. with at least four wheels; and d. with a gross vehicle weight rating of 12,000 pounds or less, according to the manufacturer’s specifications." Def.’s Mem. Supp. Mot. Summ. J., Ex. B, p. 1. Additionally, a covered auto is defined in the general definitions as "any auto or trailer shown on the declarations page ... any additional auto; any replacement auto ... or a trailer ..." Def.’s Mem. Supp. Mot. Summ. J., Ex. B, p. 1. In the medical payments coverage portion of the policy, a motor vehicle is defined as "a land motor vehicle designed for use principally on public roads." Def.’s Mem. Supp. Mot. Summ. J., Ex. B, p. 7.
When read together, it appears that the policy defines a motor vehicle as a land motor vehicle. The policy’s definition of a land motor vehicle is nonexistent and, moreover, the remaining definitions are inconsistent, ambiguous, and unhelpful in attempting to determine if the plaintiff’s scooter is a motor vehicle or a land motor vehicle under the policy. Thus, "that which will sustain the claim and cover the loss must, in preference, be adopted." Travelers Ins. Co. v. Namerow, supra, 261 Conn. 796.
Additionally, General Statutes § 14-1(58) provides in relevant part that a motor vehicle is defined as "any vehicle propelled or drawn by any nonmuscular power, except ... motor-driven cycles," and motor-driven cycles are defined in General Statutes § 14-1(57) as "any of the following vehicles that have a seat height of not less than twenty-six inches and a motor having a capacity of less than fifty cubic centimeters piston displacement: (A) A motorcycle, other than an autocycle; (B) a motor scooter; or (C) a bicycle with attached motor, except an electric bicycle. " These definitions support that a scooter is not a motor vehicle as a matter of law.
Effective as of October 1, 2019, No. 19-162 of the 2019 Public Acts amended § 14-1, and now motor vehicle is defined in General Statutes § 14-1(59), and motor-driven cycle is defined in General Statutes § 14-1(58). These amendments have no effect on the portions of the definitions pertinent to this matter.
The court must next determine whether the plaintiff would be covered under the uninsured/underinsured coverage portion of the policy if it is established that he was not operating a motor vehicle when the accident occurred. "Our Supreme Court has stated that [o]ur uninsured motorist insurance statute ... provides coverage for persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ... The coverage attaches to the insured person, not the insured vehicle. Thus [the Supreme Court] has held that an injured party may receive the benefits of a policy even though not occupying a vehicle insured under that policy." (Citation omitted; internal quotation marks omitted.) Johnson v. Pronto, Superior Court, judicial district of Hartford, Docket No. CV-01-0805957-S (June 28, 2005, Booth, J.) (39 Conn.L.Rptr. 643, 644); see Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982).
"An insured’s status at the time of the injury, whether passenger, pedestrian, or driver of an insured or uninsured vehicle, is irrelevant to recovery under the statutorily mandated coverage ... The coverage is portable: The insured and family members ... are insured no matter where they are injured. They are insured when injured in an owned vehicle named in the policy, in an owned vehicle not named in the policy, in an unowned vehicle, on a motorcycle, on a bicycle, whether afoot or on horseback or even on a pogo stick ... or in a rocking chair on [one’s] front porch ... [T]he legislature, in providing uninsured motorist coverage for the protection of persons insured thereunder, intended to protect insureds all of the time ... [A] policy exclusion may not limit an insured’s right to uninsured motorist benefits based on the insured’s location at the time of the accident." (Citations omitted; internal quotation marks omitted.) Johnson v. Pronto, supra, 39 Conn.L.Rptr. 644.
Here, the plaintiff was operating a scooter with a 49cc engine. Under § 14-1(57), this scooter would be considered a motor-driven cycle, which is expressly excluded from the definition of a motor vehicle. The case law of our state suggests that if the plaintiff were a pedestrian or on a bicycle, then he would be covered by the policy and would be provided coverage. See Johnson v. Pronto, supra, 39 Conn.L.Rptr. 644. Therefore, the plaintiff here should be covered under the policy having been on a motor-driven cycle. Although the defendant argues that the unanswered request for admissions are persuasive, if not conclusive, in identifying that a scooter is a land motor vehicle; see Practice Book § 13-23; it is well established that "[a]dmissions, whether judicial or evidentiary, are concessions of fact, not concessions of law." (Internal quotation marks omitted.) Konover v. Kolakowski, 186 Conn.App. 706, 719, 200 A.3d 1177 (2018), cert. denied, 330 Conn. 970, 200 A.3d 1151 (2019). "[C]oncessions of fact inform the trier of the fact, court or jury, but they in no way bind the court in its independent, plenary, and judicial determination of the applicable law." (Internal quotation marks omitted.) Id.
The scooter was described as a Jiangsu Baodiao with a 49cc engine. See Def.’s Mem. Supp. Mot. Summ. J., p. 3.
Furthermore, the facts of this case are similar to those in Popp v. Hartford Underwriters Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV-15-6051059-S (October 12, 2016, Arnold, J.) (63 Conn.L.Rptr. 229, 229), in which the plaintiff was operating an agricultural tractor when he was involved in an accident. The defendant insurance company denied coverage because the agricultural tractor was not a covered automobile under the applicable policy. Id., 230. The plaintiff initially pleaded that the agricultural tractor was a motor vehicle, but amended the pleading to state that it was a tractor. Id. The plaintiff agreed that, at best, it was an evidentiary admission and not a conclusive finding. Id. The court, nonetheless, found as a matter of law, that the policy exclusion, which is similar to the one in the present action, was not applicable because the "tractor [was] not a motor vehicle, [and] Connecticut law does not authorize the exclusion of it from the scope of uninsured/underinsured motorist coverage." Id., 231. In reaching this conclusion, the court reviewed the Supreme Court’s decision in Gormbard v. Zurich Ins. Co., 279 Conn. 808, 904 A.2d 198 (2006), and found that the principle stated in Harvey, that uninsured/underinsured coverage is person centered, rather than vehicle centered, is still good law. The Supreme Court stated in Gormbard: "[O]ur explication in Harvey of the public policy underlying General Statutes § 38a-336 remains sound, and that, as a general matter, an insurer cannot tie uninsured motorist benefits to the use of a specific vehicle ... An insured’s status at the time of the injury, whether passenger, pedestrian, or driver of an insured or uninsured vehicle, is irrelevant to recovery under the statutorily mandated coverage. See Elledge v. Warren, 263 So.2d 912, 918-19 (La.App. 1972); Employers’ Fire Ins. Co. v. Baker, [ 119 R.I. 734, 746-47, 383 A.2d 1005 (1978)] (Kelleher, J., dissenting [in part] ) ... The coverage is portable: The insured and family members ... are insured no matter where they are injured. (Internal quotation marks omitted.) Harvey v. Travelers Indemnity Co., supra, 188 Conn. at 249-50, 449 A.2d 157." (Internal quotation marks omitted.) Id., 815, 820. After reviewing Gormbard, the court in Popp v. Hartford Underwriters, thus, concluded that "since the plaintiff’s tractor [was] not a motor vehicle, Connecticut law [did] not authorize the exclusion of it from the scope of uninsured/underinsured motorist coverage. Lowery v. Valley Forge Ins. Co., 224 Conn. 152 (1992)." Popp v. Hartford Underwriters, supra . This is because, "[w]hen an insurer seeks to limit its liability for uninsured or underinsured motorist coverage based on [a] regulation issued pursuant to [General Statutes § 38a-336], it may do so only to the extent that the regulation expressly authorizes." (Internal quotation marks omitted.) Id.
The court in Gormbard noted that, "following our decision in Harvey, and in direct response to it, the legislature passed Public Acts 1983, No. 83-461, which amended the uninsured motorist statute to provide: "No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured." During the legislative debate on the amendment, Senator Wayne A. Baker explained that the amendment was intended to overrule this court’s holding in Harvey that public policy requires an insurer to provide uninsured motorist coverage for injuries that an insured sustains while occupying an uninsured vehicle that the insured, or a family member of the insured, owns. Specifically, Senator Baker stated: "[Harvey ] requires insur[ers] to provide coverage to people who choose to break this state’s compulsory insurance law. If a person does drive without insurance and exposes others to injury without the protection of liability coverage, then that person should not be entitled to uninsured motorist coverage. This bill then would deny uninsured motorist coverage to such people." 26 S. Proc., Pt. 9, 1983 Sess., p. 3055. There is nothing in the language of the 1983 amendment or in the relevant legislative history, however, to indicate that the legislature disagreed with our determination in Harvey that, as a general matter, uninsured motorist benefits must be portable if they are to fulfill the broad remedial purpose of the statute." Gormbard v. Zurich Ins. Co., supra, 279 Conn. 820, n.8.
The court therefore agreed with the plaintiff’s argument that "neither the relevant statutes or regulations permit the defendant to limit uninsured/underinsured coverage in the manner argued by the defendant [insurance company]. The law only permits limitations on the scope of uninsured/underinsured coverage with respect to uninsured/underinsured motor vehicles and the plaintiff’s tractor for the purposes of this decision is found not to be a motor vehicle within the meaning of the statute or regulations. Thus, the principle that the coverage follows the insured applies and such coverage should be available to the plaintiff." Id. The court therefore denied summary judgment for the defendant. Id. Like the tractor in Popp v. Underwriters, the plaintiff’s scooter, for purposes of this decision is found not to be a motor vehicle within the meaning of the statutes or regulations, and thus, the principle that the coverage follows the insured is applicable here, and such coverage should be available to the plaintiff.
Conversely, the facts of this case are distinguishable from the facts in Fitzpatrick v. Travelers Home & Marine Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-07-5006088-S (August 29, 2008, Roche, J.), wherein the plaintiff would have been covered as a family member under her father’s policy, but she was operating a motor vehicle that she owned and was covered under her own insurance policy. Because the facts of Fitzpatrick are such that the plaintiff was covered by her own policy, and not operating a covered motor vehicle under her father’s policy, the exclusion applied to bar the plaintiff’s claim as a matter of law. Id. Therefore, as a matter of law in the present action, the defendant has not met its burden to show that as a matter of law the plaintiff is excluded from coverage under this policy. See Stuart v. Freiberg, supra, 316 Conn. 821.
Likewise, the Connecticut cases cited to by the defendant are all distinguishable from the present case. See Tamburri v. White, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FSTCV176033022S (August 16, 2018) ; Nolan v. Younger, Superior Court, judicial district of Fairfield, Docket No. FBTCV156048709S (April 8, 2016, Arnold, J.); Dellavolpe v. 21st Pacific Insurance Company, Superior Court, judicial district of Ansonia-Milford, Docket No. CV126010410S (April 16, 2013, Matasavage, J.) ; Steadward v. Liberty Mut. Fire Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV040490188S (March 8, 2006, Silbert, J.) . In all of those decisions, the claim for uninsured/underinsured motorist benefits was excluded by the specific terms of the policy because the plaintiff was operating "a motor vehicle that is owned by or available for the regular use of you or a relative" and that was not "a covered auto" under the insured’s policy. Conversely, in the present case, this court has concluded that the plaintiff’s scooter is found not to be a motor vehicle within the meaning of the statutes and regulations and therefore the policy exclusions do not apply.
Lastly, upon review of the additional briefing requested by the court, regarding how other states have viewed this issue, the plaintiff supplied three similar cases wherein courts held that mopeds and scooters were not motor vehicles under similar, if not the same, policy exclusions as involved in the present case. See Farmers Ins. Exchange v. Galvin, 170 Cal.App.3d 1018, 1020 and 1023, 216 Cal.Rptr. 844 (1985) (insurance policy defined motor vehicle as land motor vehicle, and court held that exclusion must be interpreted narrowly in favor of insured; definition of motor vehicle susceptible to many meanings; and under plaintiff’s exclusionary clause moped is not motor vehicle). Conversely, the defendant cites to a number of cases which purport to hold that a motor vehicle is not an ambiguous term within the policy language, and that a scooter should be considered a motor vehicle. See Royal-Globe Ins. Co. v. Schultz, 385 Mass. 1013, 1013, 434 N.E.2d 213 (1982) ("a moped is included in the definition of ‘land motor vehicle’ "); Pontieri v. State Farm Ins. Companies, 225 App.Div.2d 510, 639 N.Y.S.2d 386 (1996) (upon review of homeowner’s insurance policy exclusion, moped was considered motor vehicle). The court notes that many of the cases that the defendant relies on are from jurisdictions with differing statutory landscapes. The courts of Connecticut have held that "the coverage follows the person not the vehicle"; (internal quotation marks omitted) Lowrey v. Valley Forge Ins. Co., supra, 224 Conn. 158; and our statutes assist in defining and clarifying many of the previously identified ambiguous terms, such as a motor-driven cycle is not a motor vehicle pursuant to § 14-1(57) and (58).
CONCLUSION
Accordingly, the defendant’s motion for summary judgment is denied because, as a matter of law, a scooter is not a motor vehicle pursuant to the policy and, therefore, no exclusions to coverage under the policy apply.