Opinion
No. CV08 5020486
July 8, 2009
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
This action stems from a motor vehicle accident in which the minor Joshua Martinez was struck by a vehicle while riding his bicycle. The driver of the vehicle striking Joshua Martinez is the co-defendant Uriah Roberts. The plaintiff, Eunice Serrano, the mother of Joshua Martinez has made a claim for uninsured/underinsured motorists benefits under the subject insurance policy issued by the Nationwide Insurance Company to the policyholder Ed Mason.
The defendant has filed a motion for summary judgment on the grounds that the plaintiff's claim against the defendant Nationwide Mutual Insurance Company ("Nationwide") is based on an insurance policy issued to Ed Mason, and the minor plaintiff Joshua Martinez is not a covered person under said policy. In support of the motion Nationwide has submitted a copy of the plaintiff's complaint and a certified copy of the subject insurance policy.
The plaintiff objects to summary judgment, arguing that the minor plaintiff is the son of Eunice Serrano, who was the sole authorized operator of Ed Mason's 1993 Buick vehicle covered under the policy, and that the policyholder, Ed Mason, had given his express permission to Serrano to use the vehicle as her own. Eunice Serrano and her son Joshua Martinez reside at 33 St. Michael's Avenue, Stratford, Connecticut with Stephan Mason, the son of the policyholder Ed Mason and two other minor children. The plaintiff argues that Ed Mason, the policyholder also resides at this address, although the subject insurance policy lists Ed Mason's address as 31 St. Michael's Avenue, Stratford, Connecticut.
I Standard of Law
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." CT Page 11563 Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). Issues of insurance coverage are appropriate for summary judgment as the meaning of insurance contracts present questions of law that are not generally suitable for jurors. Heyman Associates v. Ins. Co. of Pennsylvania, 231 Conn. 756, 653 A.2d 122 (1995); Excel Logistics v. Maryland Casualty Co., 40 Conn.App. 415, 671 A.2d 408 (1996).
In determining the merits of the motion for summary judgment, the court must also identify the governing standard of review regarding the general principles governing the construction of insurance policies. "An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy . . . The policy words must be accorded their natural and ordinary meaning . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . [C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo." (Citations omitted.) (Internal quotation marks omitted.) Kitmirides v. Middlesex Mutual Assurance Co., 65 Conn.App. 729, 731-32, 783 A.2d 1079 (2001). "In Connecticut, it is well settled that, where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading." (Citations omitted) (Internal quotation marks omitted.) Id., 733-34.
II The Insurance Policy
Nationwide claims that the minor plaintiff is not a resident relative of the policyholder and was not occupying a vehicle owned by the policyholder, and as a result, is not entitled to uninsured or underinsured motorist coverage. The subject policy was issued by Nationwide to Ed Mason of 31 St. Michael's Street, Stratford, Connecticut, on December 8, 2006. It bears policy number 51 06 D 927176. Ed Mason is listed as the policyholder and named insured. The policy covers four vehicles, including the vehicle Serrano, the minor plaintiff's mother, was allegedly operating a vehicle owned by the policyholder, exclusively as her own, with the express permission of Ed Mason, the policyholder. The policy includes both liability coverage and uninsured and underinsured motorists coverage. Stephan Mason, Ed Mason's son is specifically excluded as a covered driver. Under the heading of insured drivers are listed the names of Ed Mason, Sherri Mason and another son of the policyholder, also named Ed Mason. Page D1 of the policy defines the policyholder as the first person named in the Declarations, which is Ed Mason.
Under the Coverage Agreement for Uninsured and Underinsured Motorist states that for "You and a Relative," "[w]e will pay compensatory damages, including derivative claims, which are due by law to you or a relative . . . because of bodily injury suffered by you or a relative." (Emphasis added.) This section also provides coverage for bodily injury claims for "Other Persons" if they are occupying (1) the policyholder's vehicle; or (2) any other vehicle while it is being driven by the policyholder or a relative. "You" and "Your" are defined in the "Definitions" portion of the subject policy as "the policyholder and spouse if living in the same household." The policy defines a "Relative" as "one who regularly lives" in the policyholder's household and "is related to you by blood, marriage or adoption . . ." The policy defines "Insured" as "one who is described as entitled to protection under each coverage." (Emphasis added.) The term "Your Auto" is defined as "the vehicle(s) described in the Declarations." The coverage for liability extends to the policyholder and his "relative."
III Discussion
Nationwide argues that since the minor plaintiff was not related to the policyholder, Ed Mason, as defined in the policy and was not injured while occupying any vehicle owned or operated by Mason or operated by a relative of Mason, the minor plaintiff, Joshua Mason is not covered by the policy. See. Smith v. Nationwide Mutual Insurance Company, 214 Conn. 734, 740, 573 A.2d 740 (1990) (holding that a plaintiff was not a covered person within the definition provided in the uninsured motorist section of the policy because she was neither a family member nor an occupant of a covered vehicle). Nationwide also argues that even if a person is a listed driver on the declarations page of the subject insurance policy, but is not listed anywhere else as an insured, they would not be entitled to underinsured motorists coverage. See. Kitmirides v. Middlesex Mutual Assurance Company, 65 Conn.App. 729, 783 A.2d 1079, (2001), aff'd 260 Conn. 336 (2002). A review of the subject policy reveals that neither the minor plaintiff, Martinez, or his mother, Serrano, are listed as "insured drivers" on page 2 of the "Declarations" portion of the Nationwide policy.
The plaintiff, in opposition argues that § 38a-334-5(d) Regs. Conn. State Agencies defines an "insured" in a motor vehicle policy as the named insured and "any other person . . . using the motor vehicle within the scope of his permission from the named insured . . ." Therefore, the policy covers permissive users, such as Serrano, for the purposes of liability coverage, as well as, complete and continuous coverage under the policy. The plaintiff points to Middlesex Insurance Company v. Quinn, 225 Conn. 257, 264-65 (1993), as instructive in understanding how the policy liability coverage is determinative of uninsured and underinsured motorists coverage issues. The plaintiff argues that Middlesex Insurance Company v. Quinn, supra, holds that public policy would be violated if underinsured motorists coverage benefits were denied to a person covered under the liability portion of a policy. Id., 265, and Serrano was covered under the liability portion of the policy as a permissive user. The plaintiff reasons, therefore, that if Serrano is covered for uninsured and underinsured motorists benefits, her rights run to her son, Joshua Martinez, the minor plaintiff, derivatively. This reasoning is based on the premise that the definitions portion of the policy that defines "You" or a "relative" now includes Serrano, a covered person and her relative, Martinez, her minor son, despite the policy language which defines "You" as the policyholder. (Emphasis added.)
The court disagrees with the plaintiff's interpretation of the policy coverage and the plaintiff's argument that the decision in Middlesex Insurance Company v. Quinn, supra, extends uninsured and underinsured motorists coverage to the relatives of permissive users, despite the fact that the permissive user, Serrano, would be covered by these policy benefits. "Unlike 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. The legislature did not specifically define insured in the context of underinsured motorist coverage. Rather, the statute requires that underinsured motorist coverage must be provided "for the protection of persons insured thereunder." (Internal citations omitted, internal quotation marks omitted) Middlesex Insurance Company v. Quinn, supra, 225 Conn. 264; see also, General Statutes 38a-336(a)(1). "Thus, persons insured in this statute refer to persons specified as insureds in the liability portion of the policy. There would be no violation of public policy, therefore, unless the insurance policy specifically were to limit underinsured motorist coverage in such a way as to [preclude] persons who would otherwise qualify as insureds for liability purposes." (Citations omitted.) Id., 264-65.
Sec. 38a-336(a)(1) (Formerly Sec. 38-175c) reads as follows:
(a)(1) 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 from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage with limits requested by any named insured upon payment of the appropriate premium, provided each such insurer shall offer such coverage with limits that are twice the limits of the bodily injury coverage of the policy issued to the named insured. The insured's selection of uninsured and underinsured motorist coverage shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No insurer shall be required to provide uninsured and underinsured 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) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
"Automobile liability insurers are required to provide liability coverage respect to the insured automobile for the named insured, resident relatives of the named insured and permissive users." Id., 265 n. 8; General Statutes 38a-335(d); Regs., Conn. State Agencies 38a-334-5(d). Serrano as a permissive user of the policyholder's vehicle, therefore, is entitled to uninsured and underinsured motorist coverage under the policy. However, Joshua Martinez, a relative of the permissive user is not an insured under liability portion of the subject policy and the uninsured and underinsured benefits of the policy do not extend to him. He was not a family member of the policyholder, nor was he a relative of Ed Mason, the policyholder. He is not claiming injury while occupying a vehicle owned or driven by Mason, a relative of Mason. He was not occupying the vehicle being used or driven by Serrano, the permissive user. The words "You and a Relative," as defined in the policy does not extend coverage to a relative of a permissive user, who is injured while riding his bicycle. He was not an insured for liability purposes; not named as an insured for uninsured and underinsured motorists coverage; and has not been excluded from such coverage in violation of any public policy. Id., 265.
See. 38a-335(d). (Formerly Sec. 38-175b).
Minimum coverages. Provisions in any such policy shall apply to the named insured and relatives residing in his household unless any such person is specifically excluded by endorsement.
Sec. 38a-334-5(d) Minimum provisions for bodily injury liability and property damage liability reads in relevant part:
(d) Insured. The insurance afforded shall apply for the benefit of the named insured and any other person or organization using the motor vehicle within the scope of his permission from the named insured . . .
Indeed, if Martinez had been an insured for the purposes of uninsured and underinsured motorists benefits, the fact that he was riding his bicycle or had been a pedestrian would not bar him from coverage. He could have recovered despite the fact he was not occupying an insured vehicle. His status as a driver, passenger, pedestrian or bicycle rider would be irrelevant. See. Gormbard v. Zurich Insurance Company, 279 Conn. 808, 820 904 A.2d 198 (2006).
The court also agrees with Nationwide's argument that the minor plaintiff's claim is derivative of his mother's because of the coverage she retains as a permissive user. Pursuant to the policy language, a derivative claim does not arise out of the rights of the insureds but rather "because of bodily injury." The plaintiff's mother, Serrano, has no bodily injury claim under the policy for which her son, the minor plaintiff can claim a derivative claim.
Accordingly, for the foregoing reasons, the defendant Nationwide Mutual Insurance Company's motion for summary judgment is hereby granted.