Opinion
NNHCV186076971
01-03-2020
Brittany Jansen v. Allstate Fire & Casualty Insurance Company
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Kamp, Michael P., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
KAMP, J.
The issue before the court is the defendant’s motion for summary judgment. The defendant seeks summary judgment on the ground that it is entitled to reduce the underinsured motorist benefits available to the plaintiff by all sums paid by or on behalf of the tortfeasor in connection with the December 19, 2014 accident. For the reasons set forth below, the motion is granted.
FACTS
The plaintiff, Brittany Jansen, filed this one-count underinsured motorist complaint on January 16, 2018, alleging the following facts. On December 19, 2014, the plaintiff was operating a 2007 Chrysler 300 owned by Michael Jansen and insured by the defendant through insurance policy number 925 118 000. On this date, the plaintiff was stopped for traffic on Route 15 South at which point a vehicle operated by Juanita Wilson, traveling behind the plaintiff, failed to stop. The plaintiff suffered injuries and damages due to the negligence of Juanita Wilson who did not have sufficient insurance coverage to cover her losses.
In response, the defendant filed an answer and special defenses on May 4, 2018, in which it admits that it is an insurance corporation licensed to do business in Connecticut, Route 15 is a public street, and it insured the car owned by Michael Jansen that the plaintiff was driving at the time of the accident. To the rest of the complaint, the defendant states it has no knowledge or information sufficient to form a belief, and therefore leaves the plaintiff to her proof. The defendant additionally set forth three special defenses sounding in: (1) set-off; (2) reduction from any award for all sums paid to the plaintiff because of bodily injury on behalf of whoever may be legally responsible and sums paid or payable because of bodily injury under workers’ compensation or disability benefits; and (3) if the plaintiffs claims are covered under the policy, then the coverage should be limited to no more than $20,000 less any credits and reductions for comparative negligence. The plaintiff replied on June 6, 2018, denying each of the defendant’s special defenses.
On July 2, 2019, the defendant filed a motion for summary judgment arguing that there is no underinsured coverage available to the plaintiff because the reduction of all benefits paid on behalf of the tortfeasor totals more than the per person coverage available under the plaintiff’s policy and equal the per accident coverage. The defendant’s motion is accompanied by a memorandum of law and a signed and sworn affidavit of Heather Bean of Allstate, which is complimented by the pertinent policy, a letter from an attorney regarding the exhaustion of the tortfeasor’s policy limits, and a general release signed by the plaintiff. The plaintiff filed a memorandum of law in opposition to the motion for summary judgment on August 9, 2019. In her memorandum, the plaintiff argues that while the defendant is entitled to reduce benefits payable through her underinsured motorist coverage by the amount paid to her on behalf of the tortfeasor’s insurance carrier, the defendant should not be entitled to reduce the coverage to an amount less than the statutory minimum set forth in General Statutes § 38a-336 and General Statutes § 14-112. The motion was heard by the court on September 9, 2019, at which time the court took the papers.
The court notes that the plaintiff did not submit any evidence in support of their memorandum. When "there [are] no contradictory affidavits, the court properly decide[s] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
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). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [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." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (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 ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 191-92, 177 A.3d 1128 (2018). "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).
"Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
Here, the defendant argues that the plaintiff’s automobile insurance policy with the defendant, which provides underinsured coverage with limits of $20,000 per person and $40,000 per accident, should be reduced by all amounts paid by the tortfeasor’s insurer due to the accident in question. See Ex. 1. In the motor vehicle accident involved in this matter, the tortfeasor’s insurance paid out $40,000 in total, including $10,000 to the plaintiff. Ex. 2, p. 1; Ex. 3, p. 1. The defendant argues that the policy language allows the defendant to limit its coverage by "all amounts paid by or on behalf of ... b) the owner or operator of the underinsured auto; or c) anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy." Ex. 1, p. 15. The defendant further argues that this policy language shows why there is no underinsured coverage available to the plaintiff, because any coverage should be reduced by the amount paid by the tortfeasor’s insurer.
The defendant directs the court’s attention to General Statutes § 38a-336(b)(2) as amended by No. 14-20, § 1, of the 2014 Public Acts, which provides in relevant part that: "[i]n no event shall there be any reduction of uninsured or underinsured motorist coverage limits or benefits payable ... (2) with respect to an automobile liability insurance policy issued or renewed on or after October 1, 2015, (A) for amounts paid by or on behalf of any tortfeasor for bodily injury to anyone other than individuals insured under the policy against which the claim is made ..." The policy involved in the present matter was renewed on September 11, 2014, and was in effect on the date of the accident, December 19, 2014. (Ex. 1, pp. 1-3.) Consequently, the defendant argues that the newly amended statutory language should not be retroactively applied to insurance policies entered into prior to the date specifically set out in the statute.
Conversely, the plaintiff argues that while the defendant may be allowed to limit the plaintiff’s recovery by the amounts paid to her, the defendant should not be allowed to reduce the amount of coverage to an amount that is less than the statutory minimum of underinsured motorist coverage. Additionally, the plaintiff argues that Section 38a-334-6(d) of the Regulations of Connecticut State Agencies prohibits reduction of an insurer’s liability to less than the statutory minimum with limited exceptions. More specifically, that the defendant should not be allowed to limit its coverage to less than the statutory minimum specified in General Statutes § 14-112. The plaintiff also argues that allowing the type of offset that the defendant suggests would be contrary to the purpose of § 36-334 and would lead to an absurd result. Lastly, the plaintiff argues that the policy language is ambiguous in regards to an offset and that the precedent that the defendant relies on is inapplicable here.
In its memorandum of law, the defendant relies on two superior court cases that have previously dealt with the applicability of § 38a-336(b), as amended, to insurance policies issued or renewed prior to October 1, 2015, the date specified in the statute.
The issue of whether § 38a-336 should be applied retroactively has previously been addressed by our state’s trial courts. The court finds these decisions to be both helpful and persuasive guides. In Sears v. Brooks, Superior Court, judicial district of Hartford, Docket No. CV-15-6060624-S (April 15, 2016, Dubay, J.) (62 Conn.L.Rptr. 173), the court dealt with a plaintiff’s underinsured motorist claim stemming from an automobile accident that occurred on November 28, 2013. The plaintiff’s claim was brought as administrix of the decedent’s estate. See id. At the time of the accident, the decedent carried an automobile policy which included underinsured coverage in the amount of $50,000 per person and $50,000 per accident. See id. Meanwhile, the tortfeasor carried an automobile policy which "provided bodily injury liability coverage for $20,000 per person and $40,000 per occurrence." Id., 174. "In connection with [the] accident, the tortfeasor’s automobile liability insurer ... made payments to third parties due to the tortfeasor’s liability" which totaled $20,000, and the parties stipulated that the plaintiff would accept the remaining $20,000 of coverage available from the tortfeasor’s policy. Id., 174. The court summarized the issue to be "whether the defendant is entitled to reduce the underinsured motorist benefits available to the plaintiff under the decedent’s automobile liability policy by all of the sums paid by [the tortfeasor’s insurer] on behalf of the tortfeasor, or only by the amount paid by [the tortfeasor’s insurer] on behalf of the tortfeasor to the plaintiff." (Emphasis in original.) Id., 174.
To determine this issue, the court examined the plaintiff’s policy, which included language nearly identical to the policy in question here, and compared it to the applicable state statutes and regulations. In doing so, the court stated that "Section 38a-334-6(d)(1)(A) of the Regulations of Connecticut State Agencies permits insurers to reduce the amount payable pursuant to a claim for uninsured or underinsured motorist coverage ‘to the extent that damages have been ... paid by or on behalf of any person responsible for the injury ...’ The decedent’s policy with the defendant provides that the defendant may reduce its underinsured motorist liability benefits by ‘any amount ... paid by or on behalf of any liable parties.’ The plain and unambiguous language contained in the policy tracks the language of § 38a-334-6(d)(1)(A) in all material respects." Id., 174, see also Allstate Ins. Co. v. Lenda, 34 Conn.App. 444, 456, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d 149 (1994).
When examining the applicability of the amended portion of § 38a-336(b), the court noted that because "the effective date of P.A. 14-20 [is] October 1, 2015, the legislature did not clearly and unequivocally express its intent to have the amendment apply retroactively. Accordingly, pursuant to the presumption embodied in § 55-3, P.A. 14-20 only applies prospectively." Id., 176. Thus, the court held that the defendant was "entitled to reduce the underinsured motorist benefits available to the plaintiff by all of the sums paid by or on behalf of the tortfeasor in connection with the ... accident." (Emphasis added.) Id., 177.
Similar to Sears v. Brooks, this same question was addressed by our state’s trial court in Jones v. Metropolitan Property & Casualty Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV-17-6037121-S (July 23, 2018, Wiese, J.) (66 Conn.L.Rptr. 732). The court applied the same precedent as in Sears and held that "the defendant issued the plaintiff an insurance policy that provided under-insured motorist coverage sometime prior to August 31, 2014- a date prior to October 1, 2015 for purposes of P.A. 14-20, § 1. Therefore, in accordance with Sears, the under-insured insurance contract between the plaintiff and the defendant is not subject to the new obligations imposed on insurers pursuant to General Statutes § 38a-336(b), as amended by P.A. 14-20, § 1 ... [T]he defendant is allowed to seek reductions in under-insured motorist benefits by factoring in any payments made by or on behalf of the torfeasor before paying an insured policy holder under-insured motorist benefits pursuant to the governing policy." Id., 733.
Thus, the court in Jones v. Metropolitan Property & Casualty Ins. Co. held that "the $100,000 of available coverage is reduced by what was paid by or on behalf of any liable parties, pursuant to the insurance contract, which includes the $50,000 paid to the plaintiff for bodily injury; the $43,000 paid by [the tortfeasor’s insurer] to the plaintiff’s passenger; the $15,295.79 paid for property damage; and the $917.27 paid to the plaintiff for loss of use. Accordingly, the record demonstrates that policy limits have already been satisfied. Therefore, in accordance with Sears, there is no genuine issue of material fact and the court grants the defendant’s motion for summary judgment." Id.
In the present case, the plaintiff’s policy in effect on the day of the accident was renewed on September 11, 2014. See Ex. 1, pp. 1-3. This date of issuance or renewal is prior to October 1, 2015, and therefore, the portions of § 38a-336(b), as amended by P.A. 14-20, § 1, are inapplicable and should not be applied retroactively. In the accident involved here, multiple individuals were injured and because of this, the tortfeasor’s liability limits for bodily injury of $20,000 per person and $40,000 per accident were exhausted. See Ex. 2. As stated above, the plaintiff’s policy states that coverage will be reduced by "all amounts paid by or on behalf of the owner or operator of the underinsured auto; or anyone else responsible." Ex. 1, p. 15. Thus, because the language in the plaintiff’s policy mirrors both the language in Sears and Jones, as well as the exception set forth in § 38a-334-6(d)(1)(A) of the regulations, there is no genuine issue of material fact that the defendant is permitted to reduce the plaintiff’s coverage by "damages [that] have been paid by or on behalf of any person responsible for the injury." Section 38a-334-6(d)(1)(A).
CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted.