Opinion
No. CV 01-0805957S
June 28, 2005
MEMORANDUM OF DECISION
The plaintiff, Jereme Johnson, filed the complaint in this action on March 9, 2001. The third count of the complaint, in which the plaintiff sets forth a claim against the defendant Infinity Insurance Company (Infinity), is the only count presently before the court. In the third count, the plaintiff alleges the following facts. On or about October 7, 1999, the plaintiff was injured when the car he was driving collided with a vehicle driven by James Pronto. The collision was the result of Pronto's negligence. At the time of the accident, the plaintiff was driving a car owned by CAMRAC, Inc. (CAMRAC), doing business as Enterprise Rent A Car. Infinity had issued to the plaintiff an insurance policy (policy) which included uninsured motorist coverage, and the policy was in full force and effect at the time of the accident. There was no liability policy covering the vehicle driven by Pronto.
The first count of the complaint sets forth allegations against the defendant James Pronto. On May 29, 2001, the plaintiff filed a motion for default against Pronto for failure to appear, which the court clerk granted on June 8, 2001.
The second count of the complaint sets forth allegations against the defendant CAMRAC, Inc. (CAMRAC). CAMRAC filed a motion for summary judgment on March 25, 2002, which the court, Stengel, J., granted on February 4, 2003.
The copy of the policy submitted to the court bears the name "Jeremy Johnson," but the parties are in agreement that this policy was issued to the plaintiff, Jereme Johnson.
On July 6, 2004, after the case had been assigned for trial, Infinity filed a motion for permission to file a motion for summary judgment pursuant to Practice Book § 17-44. The court, Shapiro, J., denied the motion for permission on July 16, 2004. The plaintiff and Infinity subsequently reached an agreement whereby the case was withdrawn from the jury list and submitted to the court for resolution based solely on the issue of coverage. Infinity does not contest Pronto's negligence, the fact that he was driving uninsured, or the fact that the plaintiff's damages are in excess of the $20,000 uninsured motorist limit of the plaintiff's policy. In addition, the parties agree to the following facts. The car that the plaintiff was driving at the time of the accident was owned by CAMRAC and had been leased by CAMRAC to Rogelio Valentin pursuant to a September 27, 1999 rental agreement. Valentin in turn lent the car to the plaintiff while Valentin was repairing the plaintiff's own vehicle. CAMRAC did not give permission for the plaintiff to use the car leased to Valentin. Thus, the sole question before the court is whether the plaintiff is entitled to payment of uninsured motorist benefits from Infinity, where the car the plaintiff was driving at the time of his collision with the uninsured motorist had been borrowed from a lessee without the owner-lessor's permission.
Practice Book § 17-44 provides in relevant part: "[A]ny party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial."
Infinity argues that the plaintiff is not entitled to uninsured motorist benefits under the circumstances of this case because, at the time of the accident, the plaintiff was not an "insured person" under the policy, nor was he driving an "insured car" as defined in the policy. Part III of the policy, which contains the provisions related to uninsured and underinsured motorists, provides in relevant part: "We will pay damages, except for punitive or exemplary damage, for bodily injury which the insured person is legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle." Part III also defines "insured person" as follows: "`Insured person' means:
(a) you,
(b) a relative,
(c) any other person occupying your insured car.
"No person shall be considered an insured person if that person uses a vehicle without having the express or implied permission of the owner."
Infinity argues that in the present case, the plaintiff was not an "insured person" at the time of the accident because the plaintiff was using CAMRAC's vehicle without CAMRAC's express or implied permission. Accordingly, under the plain language of the policy, Infinity argues, the plaintiff is not entitled to collect uninsured motorist benefits for the accident. The plaintiff argues in response that the policy provision excluding a person using a vehicle without the owner's permission from the definition of "insured person" constitutes an impermissible exclusion not authorized by the relevant statutes and regulations, and that the provision is therefore void.
General Statutes § 38a-336(a)(1) 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 . . . for the protection of persons insured thereunder . . ." See Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982). Section 38a-334-6(a) of the Regulations of Connecticut State Agencies provides in relevant part: "The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured or underinsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies."
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 . . ." (Emphasis in original; internal quotation marks omitted.) Harvey v. Travelers Indemnity Co., supra, 188 Conn. 248. "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." Id. "The public policy established by the uninsured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Insurance companies are powerless to restrict the broad coverage mandated by the statute . . . [U]ninsured motorist coverage . . . is statutorily intended to provide the reciprocal or mutual equivalent of automobile liability coverage prescribed by [statute] . . . To achieve this purpose, no policy exclusions contrary to the statute of any of the class of family insureds are permissible since uninsured motorist coverage is intended by the statute to be uniform and standard motor vehicle accident liability insurance for the protection of such insureds thereunder as if the uninsured motorist had carried the minimum limits of an automobile liability policy." (Citation omitted; internal quotation marks omitted.) Id., 249-50.
"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." (Citations omitted; internal quotation marks omitted.) Id., 250. "[T]he legislature, in providing uninsured motorist coverage `for the protection of persons insured thereunder,' intended to protect insureds all of the time . . ." Id., 252.
In Harvey v. Travelers Indemnity Co., supra, 188 Conn. 245, the issue before the Supreme Court was whether the named insured's relative, who was an insured under the relevant policy, was entitled to payment under the uninsured motorist provisions of the policy when he had been injured while occupying an uninsured vehicle owned by another relative. Id., 246. The policy in that case contained an exclusion which made it inapplicable "to bodily injury to an insured while occupying a highway vehicle ( other than an insured automobile) owned by the named insured or a relative . . ." (Emphasis added; internal quotation marks omitted.) Id. The insurer, citing the exclusion, denied payment. Id. The Supreme Court concluded that the legislature "intended to protect insureds all of the time, not only when they are occupants of motor vehicles that are covered by the bodily injury liability provision." Id., 252. Accordingly, the court held that the exclusion was void as against public policy and therefore unenforceable. Id. Thus, Harvey stands for the proposition that 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.
The Supreme Court later distinguished Harvey in the case of Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 573 A.2d 740 (1990). In Smith, the plaintiff, who was a passenger in a vehicle involved in a one-car accident, sought underinsured motorist benefits under the policy issued to the father of the owner-driver. Id., 736. The father's policy, which was issued by the defendant, provided coverage for two cars owned by the father, neither of which was the car involved in the accident. Id. Although the plaintiff was not a "covered person" under the liability portion of the policy; id., 737; she argued that she was entitled to coverage based on the court's statement in Harvey that "an injured party may receive the benefits of a policy even though not occupying a vehicle insured under that policy." Harvey v. Travelers Indemnity Co., supra, CT Page 10873 188 Conn. 248; see also Smith v. Nationwide Mutual Ins. Co., supra, 214 Conn. 737. The court stated that, unlike the plaintiff in Harvey, the plaintiff in Smith was not an insured under the defendant's policy. Smith v. Nationwide Mutual Ins. Co., supra, 214 Conn. 739. The policy in Smith provided for the payment of underinsured motorist benefits to "a covered person." Id. The policy defined "covered person" as: "1. You or any family member; 2. Any other person occupying your covered auto; 3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above." (Internal quotation marks omitted.) Id., 740. The plaintiff did not fall into either of the first two categories, because she was not the policyholder, a family member or an occupant of a covered auto, and she clearly did not fit within the third category. Id. The court concluded that the case was distinguishable from Harvey, because the provisions in Smith were "not exclusions from coverage but rather simply definitions of who is an `insured' and a `covered person' under the terms of a policy." Id.
Finally, in Middlesex Ins. Co. v. Quinn, 225 Conn. 257, 622 A.2d 572 (1993), the Supreme Court further clarified the law in this area. Quinn was injured in an accident in which the tortfeasor was underinsured; he was denied underinsured motorist benefits under his father's policy. The uninsured motorist section of his father's policy promised to "pay the damages you're entitled to receive . . ." (Emphasis added; internal quotation marks omitted.) Id., 261. The "Definitions" section of his father's policy, which applied to both liability and underinsured motorist insurance provided in part: "You, your and yourself . . . means a member of the family who is a resident of the household and who doesn't own a car . . ." (Emphasis added; internal quotation marks omitted.) Id., 261-62. Because Quinn owned a car, the plain language of his father's policy provided that he was not entitled to underinsured benefits. Id., 262. Quinn "claim[ed] that public policy precludes an automobile insurer from excluding from underinsured motorist coverage a resident family member who owns a car . . . [Quinn's] argument [was] based upon the principle of public policy that an insurer may not reduce its liability for underinsured motorist coverage by contract except to the extent that the relevant regulations expressly authorize." Id., 260-61.
The Supreme Court held that the exclusion for family members who own vehicles was permissible under the relevant statutes and regulations. The court noted that "§ 38a-334-6(a) of the Regulations of Connecticut State Agencies provides that the `insurer shall undertake to pay on behalf of the insured all sums which the insured shall become legally entitled to recover . . .'" (Emphasis in original.) Id., 263. The court further noted that "[u]nlike the automobile liability statutes, the uninsured motorist statute does not require automobile insurance policies to provide underinsured motorist benefits to any particular class or group of insureds." Id., 264. Instead, General Statutes § 38a-336(a)(1) "requires that underinsured motorist coverage must be provided `for the protection of persons insured thereunder.' Thus, `persons insured' in this statute refers to persons specified as insureds in the liability portion of the policy." (Citation omitted; emphasis in original.) Id. Accordingly, "[o]nce an automobile liability policy is issued extending (liability] coverage to a certain class of insureds . . . uninsured motorist coverage must be offered to cover the same class of insureds . . . except as expressly excluded by statute or regulation." (Citation omitted; internal quotation marks omitted.) Id., 267. Nevertheless, "there is no violation of public policy if the person being denied uninsured motorist benefits is not an insured under the liability section of the policy." (Emphasis added.) Id.
Applying this body of case law to the present action, the court concludes that Infinity's policy provision excluding from the definition of "insured person" any person who "uses a vehicle without having the express or implied permission of the owner" is void as against public policy when applied to this plaintiff, who is the policyholder. Like the exclusion in Harvey, the provision in the present case purports to deprive an insured of uninsured motorist coverage based on the insured's location or status at the time of the accident. Specifically, the provision in the present case denies coverage when the policyholder "uses a vehicle without having the express or implied permission of the owner." It bears repeating that the Harvey court held that "[t]he 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." (Citation omitted; internal quotation marks omitted.) Harvey v. Travelers Indemnity Co., supra, 188 Conn. 250. It is clear from Harvey that the insured's use of a particular motor vehicle is not a proper basis for an exclusion from uninsured motorist coverage because the legislature intended to cover insureds "all of the time . . ." Id., 252.
The court is not called upon to decide whether the provision would be enforceable against individuals other than the policyholder. Accordingly, the court expresses no opinion regarding that issue.
Moreover, Infinity does not and cannot argue that the plaintiff is not generally an insured person under the policy, which was issued to him. The plaintiff is undoubtedly within the definition of "insured person" set forth in the liability section of the policy, and Infinity makes no claim to the contrary. As the Supreme Court stated in Quinn, once a liability policy extends liability to a certain class of insureds, uninsured motorist coverage must extend to the same class "except as expressly excluded by statute or regulation." Middlesex Ins. Co. v. Quinn, supra, 225 Conn. 267. There is no statute or regulation in Connecticut authorizing an insurer to exclude a named insured from uninsured motorist coverage because the insured was using a vehicle without the owner's permission. The exclusion set forth in the policy is therefore an improper limitation on the insured's right to be covered by uninsured motorist coverage regardless of his location or status in a particular vehicle.
Infinity nevertheless suggests that the policy provision in the present case is permissible because it is, like the provision in Smith, merely part of the definition of who is an insured person, rather than an exclusion. Although the provision at issue here is set forth in the policy as part of the definition of "insured person," and does not appear in the "exclusions" section of the policy, our Supreme Court has stated that "[a]n insurer cannot limit otherwise mandated underinsured motorist coverage by labeling a forbidden exclusion as a definition." Middlesex Ins. Co. v. Quinn, supra, 225 Conn. 268. Thus, the court must determine whether the provision is actually a definition, or whether it is an exclusion labeled as a definition.
"In Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 573 A.2d 699 (1990), our Supreme Court discussed when an `exclusion' arises in an insurance policy. 'In an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed.' Id., 588. Thus, `before the need for an exclusion arises, there must first be coverage within the defined scope of the policy.' Id., 589. It is clear, then, that before policy language can be said to be exclusionary, it must first provide coverage." (Internal quotation marks omitted.) Middlesex Ins. Co. v. Quinn, 27 Conn.App. 573, 581, 609 A.2d 1008 (1992), aff'd, 225 Conn. 257, 622 A.2d 572 (1993).
In Smith, the policy language defining who was a "covered person" was not exclusionary because the policy did not otherwise provide any coverage to the plaintiff. The purported definition in the present case, by contrast, falls squarely within the definition of an exclusion. The policy in this case generally provides for payment of damages that the plaintiff is entitled to recover from the operator of an uninsured motor vehicle. The provision at issue, if applied to the plaintiff, would create a narrow exception to that general uninsured motorist coverage; specifically, the plaintiff would not be able to recover damages because he was using a vehicle without the owner's permission. While the provision purports to define who is an insured person, the practical effect of the provision, as applied to the plaintiff, who as policyholder is generally covered under the policy as an insured person, is to specify a particular circumstance under which he is not covered. The provision therefore is an exclusion — one that, as previously stated, is not authorized by the relevant statutes and regulations.
The court's conclusion that the provision in the present case violates public policy is not in conflict with the Supreme Court's holding in Aetna Life Casualty Co. v. Bulaong, 218 Conn. 51, 588 A.2d 138 (1991). In that case, the court was called on to determine whether an arbitration panel correctly determined that the claimant, who was a passenger on a stolen motorcycle at the time of the accident, was "using" the motorcycle within the meaning of a policy exclusion for "[u]sing a vehicle without a reasonable belief that the person is entitled to do so." (Internal quotation marks omitted.) Id., 53. The arbitrators had concluded that the claimant was not using the motorcycle within the meaning of the exclusion, and that the exclusion therefore did not apply. Id., 54-55. Accordingly, the arbitrators did not reach the additional issue of whether the exclusion was prohibited under the uninsured motorist statute and regulations. Id., 64 n. 10. The Supreme Court, in reversing the trial court's judgment denying the insurer's petition to vacate the arbitration award, specifically stated that the claimant could raise in a subsequent arbitration proceeding the issue of whether the exclusion was prohibited under the relevant statute and regulations. Id.
Finally, the court notes that there is no merit to Infinity's claim that the plaintiff cannot recover under the policy because the car he was driving was not an "insured car" under the policy. The policy does not limit uninsured motorist coverage to situations in which the insured is driving a car insured under the policy, nor could it in light of the previously cited authority holding that uninsured motorist coverage attaches to the insured person, not the insured vehicle. See Harvey v. Travelers Indemnity Co., supra, 188 Conn. 248.
For the foregoing reasons, the plaintiff is entitled to recover damages under the uninsured motorist coverage of his policy. Accordingly, the court hereby renders judgment in favor of the plaintiff in accordance with the parties' stipulation.
BY THE COURT
Kevin E. Booth, J.