Opinion
No. CV 05 4012880.
November 17, 2006.
MEMORANDUM OF DECISION
This action for declaratory relief arises out of a personal injury case filed on December 1, 2004, by the defendants, Kim Brown, Lynn Johnson, and Katherine Thiesen, against the remaining defendants, Edward Greco and Horace Mann Insurance Company. The plaintiff, Integon Indemnity Corporation, an insurance company authorized to conduct business in the state of Florida, seeks a declaratory judgment to determine whether it owes a duty to defend or indemnify Greco in that underlying lawsuit.
Horace Mann issued the insurance policy for the motor vehicle driven by Brown. Since Horace Mann is the only party to have filed a brief in opposition to the plaintiff's motion in the present case, all subsequent references to "the defendant" refer to it, unless otherwise specified.
That lawsuit, filed in the judicial district of New Haven, is currently pending.
The underlying personal injury case stems from a motor vehicle collision on December 20, 2002, between the car occupied by Brown, Johnson and Thiesen and the one driven by Greco. At that time, Greco, a resident of Florida, maintained an insurance policy with the plaintiff. The plaintiff alleges that the policy provides for personal injury and property damage coverage but not liability coverage.
On June 26, 2006, pursuant to Practice Book § 17-44, the plaintiff filed a motion for summary judgment. It submitted a memorandum of law in support and portions of the insurance policy with a certifying affidavit. One day earlier, on June 25, 2006, the defendant had filed a memorandum of law in opposition to the motion. The plaintiff then filed a reply memorandum on July 26, 2006, attaching a certified copy of Greco's entire insurance policy.
With the motion, the plaintiff submitted an affidavit certifying the insurance policy as the one in effect at the time of Greco's accident and affirming that "the policy did not contain or provide for automobile liability insurance coverage of any kind whatsoever." With the reply memorandum, the plaintiff submitted an uncertified copy of portions of the insurance policy, which it had omitted with its previous submission of the motion for summary judgment.
"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.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . 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 . . ." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004). "When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [§ 17-45 of the Practice Book] must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." (Internal quotation marks omitted.) Catz v. Rubenstein, 201 Conn. 39, 49, 513 A.2d 98 (1986).
The plaintiff moves for summary judgment on the ground that, since Greco had neglected to purchase third-party liability insurance with his Florida automobile insurance, it has no duty to defend or indemnify him under the terms of the policy. The plaintiff further argues that (1) General Statutes § 38a-372 is inapplicable to insurance policies written out of state, and General Statutes § 38a-371 obligates only the owner of the vehicle to obtain appropriate minimum insurance coverage, not the insurer; therefore, Connecticut law and regulations do not require that a Florida motor vehicle policy be deemed to provide liability coverage and (2) Greco chose not to include third-party liability coverage in his policy.
Section 38a-372 provides in relevant part that "Every insurance company authorized to transact the business of private passenger motor vehicle liability insurance in this state shall file with the Insurance Commissioner as a condition of its continued transaction of such business within this state a form approved by the commissioner declaring that its policies shall be deemed to provide the security required by section 38a-371 . . ."
Section 38a-371 provides in relevant part that "(a) . . . (2) The owner of a private passenger motor vehicle not required to be registered in this state shall maintain security in accordance with this section, in effect continuously throughout the period of its operation, maintenance or use as a motor vehicle within this state with respect to accidents occurring in this state.
"(b) The security required by this section, may be provided by a policy of insurance complying with this section issued by or on behalf of an insurer licenses to transact business in this state or, if the vehicle is registered in another state, by a policy of insurance issued by or on behalf of an insurer licensed to transact business in either this state or the state in which the vehicle is registered . . ."
In response, the defendant argues that, based on the evidence submitted by the plaintiff, it is unclear whether a provision exists in the policy stating that liability coverage is not provided for the accident at issue, creating a genuine issue of fact. The defendant also asserts that, if the plaintiff was licensed to transact the business of insurance in Connecticut, § 38a-372 would require that the plaintiff certify to the commissioner of insurance that its policies meet the minimum requirements of § 38a-371; therefore, it is in the interest of public policy to compel out-of-state insurance companies to cover all their insured drivers up to Connecticut's statutory minimum coverages while those drivers are operating their vehicles in Connecticut.
In its reply memorandum of law, the plaintiff contends that the declarations page, which was attached with the original motion for summary judgment, does not include any provision for "bodily injury liability coverage" and that the absence of any such provision indicates that the policy does not provide this coverage. The plaintiff further points out that the courts have rejected the defendant's broad public policy argument and no case law has been provided to the contrary by the defendant.
"There is no question that a declaratory judgment is a suitable vehicle to test the rights and liabilities under an insurance policy." St. Paul Fire Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 380, 577 A.2d 1093 (1990), aff'd, 222 Conn. 823, 610 A.2d 1281 (1992) "The question of whether an insurer has a duty to defend its insured is purely a question of law, which is to be determined by comparing the allegations of [the] complaint with the terms of the insurance policy." (Internal quotation marks omitted.) Wentland v. American Equity Ins. Co., 267 Conn. 592, 599 n. 7, 840 A.2d 1158 (2004).
Since the policy in the present case is a Florida no-fault automobile insurance policy issued to Greco who is a resident of Florida, but the accident occurred in Connecticut, the court must first determine which state's law to apply. "Choice of law issues can be determined in a motion for summary judgment." Esposito v. Mele, Superior Court, judicial district of New Haven, Docket No. CV 01 0450708 (October 22, 2002, Arnold, J.) (33 Conn. L. Rprt. 348) The choice of law principles governing insurance contracts "begin with the law of the place where the contract was made." Reichhold Chemicals, Inc. v. Hartford Accident Indemnity Co., 243 Conn. 401, 408, 703 A.2d 1132 (1997). Additionally, "[Section] 193 [of the Restatement (Second) of Conflicts of Law] establishes a special presumption in favor of application, in liability insurance coverage cases, of the law of the jurisdiction that is the principal location of the insured risk." Id., 411. For motor vehicle policies, the state where the insured vehicle is principally garaged is the location of the insured risks and, therefore, controls the interpretation of the policy. See American States Ins. Co. v. Allstate Ins. Co., 94 Conn.App 79, 87-88, 891 A.2d 75, cert. granted in part, 278 Conn. 904, 896 A.2d 107 (2006). "To overcome this presumption, another state's [public policy] interest must outweigh [that] of the state where the insured risk is located and must be sufficiently compelling to trump the § 193 presumption." Id., 87.
The evidence provided by the plaintiff demonstrates that it issued a no-fault insurance policy to Greco in Florida at the Florida address listed for him therein. The declarations page of the policy states that it provides "personal injury protection" in the amount of $10,000 for each person and "property damage" in the amount of $10,000 for each accident. Another provision in the policy states: "If an auto accident . . . occurs in any state or province other than the one in which your covered auto is principally garaged . . . your policy will provide at least the required minimum amounts and types of coverage, except that bodily injury liability coverage will not be provided unless such coverage is shown in the [d]eclarations." Finally the policy provides that the plaintiff has no "duty to defend any suit . . . for bodily injury or property damage not covered under this policy."
The language of the policy is unambiguous. It does not provide coverage for third-party bodily injury liability insurance. Since Greco's vehicle was principally garaged in Florida, based on choice of law principles, Florida law applies unless it can be shown that Connecticut has a compelling policy interest in applying its own law, specifically, § 38a-372, to out-of-state insurers.
The defendant argues that the goal of § 38a-372, ensuring recovery for drivers injured by another's negligence, would be undermined if policies written out of state were not required to comply with Connecticut's minimum security requirements; therefore, public policy demands that § 38a-372 apply to out-of-state policies when the insured is driving in Connecticut. The court in Infinity Insurance Co. v. Merrian, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0261511 (March 9, 1999, Beach, J.) ( 24 Conn. L. Rptr. 173) was presented with a nearly identical issue. Both the present case and Merrian involve no-fault policies written in Florida, issued by an insurance company registered in Florida to an insurer living in Florida, but with an accident situs in Connecticut. Id., 173. Also, in both cases, the insured did not obtain third-party bodily injury liability insurance. In determining that Florida, not Connecticut, law controlled and that Connecticut had no compelling public policy reason to apply its own law, the court in Merrian first looked at the language of § 38a-372, which "requires a company transacting business in Connecticut to certify that `its policies' provide their security required by § 38a-372." Id., 174. The court concluded that "[i]n context, the phrase `its policies' logically refers to policies written in the state of Connecticut." Id. It went on to surmise that "had the legislature intended that all policies, whether written in state or out of state, be deemed to include all coverages required under the Connecticut Financial Responsibility Law, it presumably would have clearly and unequivocally done so." Id., 176 n. 7. Given the legislature's apparent intent to place the onus of maintaining insurance on the owners of automobiles, keeping them distinct from commercial insurers, it would be improper to challenge the status quo without legislative authority. Id., 175. The court further noted that Connecticut appellate decisions have consistently refused to extend the protections and obligations imposed by statute to insurance policies principally operative in other states, an reasoned that the legislature meant to cover only policies issued in Connecticut with § 38a-372. Id., 174-75.
Absent from the pleadings or evidence submitted by both the parties in the present case is whether the plaintiff is registered to transact the business of insurance in Connecticut. The only reference made to the transaction of business is the plaintiff's allegation in the complaint that it "is a corporation organized and existing under the laws of the state of North Carolina and is authorized to conduct the business of insurance in the state of Florida."
See, e.g., Glens Falls Ins. Co. v. Sybalsky, 46 Conn.App. 313, 699 A.2d 258 (1997) (General Statutes § 38a-336, providing that an insured is entitled to underinsured motorist coverage equivalent to their liability limits unless specifically requesting otherwise in writing, did not apply to New York residents issued a policy in New York; as the accident occurred in Connecticut, they were entitled only to the greater of the minimum underinsured motorist requirements of Connecticut or their own policy limits); American States Ins. Co. v. Allstate Ins. Co., supra, 94 Conn.App. 79 (Connecticut had no compelling policy interest in applying its own law to a policy written and issued in Florida, but where the car was garaged three to five months of the year in Connecticut and was co-owned by a Connecticut domiciliary who received and paid the premium bills).
The weight of authority suggests that public policy will not impose minimum liability requirements upon out-of-state insurers where no liability coverage exists to begin with. The insurance policy was written and executed in Florida and was intended to have primary operative effect in Florida; thus, the applicable standards and requirements are those of Florida law. The no-fault policy includes no liability coverage and explicitly precludes personal injury liability coverage for accidents occurring out of state. The plaintiff has met its burden of showing the absence of a genuine issue of material fact as to the liability coverage in Greco's policy, and the defendant has not submitted any evidence to demonstrate the existence of such an issue. Based on the applicable principles of substantive law, the plaintiff has no duty to defend or indemnify Greco in the underlying suit, and the plaintiff's motion for summary judgment is granted.
Judge Trial Referee