Opinion
No. CV 00 0445503 S
June 17, 2004
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
The plaintiff is seeking to recover damages under the uninsured motorist coverage of his mother's policy with the defendant. The defendant argues that the plaintiff is not covered under the policy.
Prior to the date of the accident giving rise to this dispute, December 6, 1998, the plaintiff's mother Brenda Agnew resided at 125 Coleman Road in West Haven with her husband Harold Agnew. Both Mr. Mrs. Agnew were insured under a motor vehicle policy issued by the defendant to them at that address.
In 1992 or 1993, the Agnews separated and Mrs. Agnew went to live at 92 Orchard Street, New Haven, that property being owned by her brother. The plaintiff also resided there.
Both Mrs. Agnew and the plaintiff testified that 92 Orchard Street was in effect the family home, but that because of Mrs. Agnew's health problems she sought housing requiring less stair climbing of her. In 1998, they moved to 22 Blue Cliff Terrace in New Haven, with Mrs. Agnew still insured by the defendant under a policy listing the owners as "Brenda or Harold Agnew" at the West Haven address.
There is no question that the plaintiff never lived at the West Haven address and thus, the defendant argues he is not covered under the policy.
DISCUSSION I CT Page 9367
In argument on this issue, counsel for the defendant, responding to a question from the court, conceded that, though she removed from West Haven, Mrs. Agnew would be considered a covered insured were she to have filed a claim under the policy.
In view of that concession, the defendant's position is seriously weakened. Reference to terms in the policy indicates that an "insured person" includes "any resident." (Page 4.) A "resident" is:
3. "Resident" — means a person who physically resides in your household . . . (Page 4.)
Coverage (Page 12) is defined as "you or any resident relative."
The defendant's argument appears to be that it is not a question of where Mrs. Agnew lived, but that she is a named insured whereas the plaintiff is not and he never lived at the West Haven address. The court finds nothing in the policy language which addresses "severing" coverage or partial coverage.
The court concludes that the plaintiff is covered under the policy terms applicable to Mrs. Agnew. Thus, the fourth special defense is denied.
Arguably, this result may create an inequitable burden for the defendant in that one policy may be extended to impose coverage for two households. However, the defendant can readily remedy this problem by monitoring its insureds and its renewal process.
II
No evidence was offered by the defendant on its special defenses dealing with collateral sources.
III
The defendant has interposed two additional special defenses, one alleging this was not an accident, but an intentional act by the driver of the uninsured vehicle and another sounding in contributory negligence.
The policy here is silent as to what is covered as an "accident." There is no definition anywhere in 30 pages of text and the only reference to "accidents" is the thrice repeated statement to the effect that damages or claimed injuries must be caused by accident. (Pages 5, 16 20.)
The plaintiff denies telling the police that the uninsured vehicle "did intentionally turn into him," a version, however, apparently affirmed by other witnesses present.
Assuming the plaintiff was injured as it was stated in the police report, the court nevertheless concludes that the plaintiff was injured in an accident as that term is employed in the policy.
In Mills v. Colonial Penn Insurance Co., 47 Conn. Sup. 17, 28 Conn. L. Rptr. 471 (2001), Judge Jon Blue addressed this very issue in a drive-by shooting case and ruled in favor of the victim under an uninsured motorist claim.
Judge Blue noted that most courts have concluded that "accident" should be viewed from the insured victim's perspective. ( Id., at 21.) In one of the cases he examined, a passenger was killed when the driver intentionally wrecked his truck to collect the insurance proceeds.
At page 23 of his decision, Judge Blue comments:
A pair of extremely recent decisions shows that the analysis of Ripley and Johnson has withstood the test of time. Fox v. Country Mutual Ins. Co., 327 Or. 500, 964 P.2d 997 (1998), involved a passenger who died in the intentional wreck of a driver's vehicle. Vincent, the driver, decided to wreck his pickup truck intentionally in order to collect the insurance proceeds. He refused to stop the truck before Fox, a passenger, could escape, and Fox was killed in the resulting crash. The Supreme Court of Oregon held that Fox's death had been "caused by an accident" for purposes of the uninsured motorists insurance policy sought to be construed. Id., 516. It reasoned that: "The insured was merely insuring himself against (among other things) the possibility of being intentionally injured by an uninsured motorist."
Id., 513 (internal quotation marks omitted).
The court concludes that the episode in question was an "accident" for the purposes of the policy.
No evidence of contributory negligence was produced so that special defense fails.
IV
Turning then to the question of damages, the court has examined the medical reports and bills.
The chiropractic bill and report is not convincing and is suggestive of overtreatment. In particular, the court is skeptical of treatment described by the provider in what has become familiar language as "correcting abnormal bio-mechanics."
The court concludes that a fair and equitable award for this plaintiff is:
economic damages $ 7,808.71 Non-economic damages 8,500.00 __________ Total $16,308.71
Judgment may enter in that amount.
Anthony V. DeMayo Judge Trial Referee