Opinion
No. CV 07 5002902
September 16, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT RE WHETHER UNINSURED MOTORIST COVERAGE EXTENDS TO AN ALTERCATION IN A MOTOR VEHICLE
Factual Background
The plaintiff, Matthew Racine, filed the present action against the defendants, Heath Galvin, Linda Miner and Government Employees Insurance Company (GEICO), on August 20, 2007. This action arises out of the alleged negligent conduct of Heath Galvin, when he struck the plaintiff in the face in the parking area for the Airline Rail Trail at the facilities at the Cranberry Bog, Smith Street, East Hampton, Connecticut, causing the plaintiff to suffer severe personal and emotional injuries. Count eight of the plaintiff's complaint is for a claim of uninsured motorist coverage against GEICO. In response to that claim, the defendant, GEICO, filed a motion for summary judgment and attached a memorandum of law thereto. In support of its motion for summary judgment, the defendant submitted the following evidence: 1) a certified copy of the Racine's GEICO's insurance policy and 2) a certified copy of the plaintiff's deposition transcript. The plaintiff filed a memorandum in opposition on June 26, 2008. In support of his memorandum in opposition, the plaintiff submitted the following evidence: 1) an uncertified copy of an East Hampton Police Incident Report; 2) an uncertified copy of Christine Corriveau's witness statement; 3) an uncertified copy of Matthew Racine's witness statement; 4) an uncertified copy of Heath Galvin's witness statement; and 5) uncertified portions of the plaintiff's deposition transcript. Additional facts will be provided as they become relevant.
The only defendant relevant to the present motion for summary judgment is GEICO, and therefore, will be referred to as the defendant.
The plaintiff also submitted what seems to be an uncertified copy of one single page of the GEICO insurance policy.
The defendant moves for summary judgment on the ground that there is no genuine issue of material fact that at the time the plaintiff was struck by Galvin, Galvin was standing next to the plaintiff's vehicle, and as such, the plaintiff's claimed injuries were wholly unconnected to Galvin's use of a motor vehicle. The defendant argues, therefore, that the plaintiff cannot establish a valid claim for uninsured motorist benefits pursuant to his automobile insurance policy because the injuries sustained by him were not causally connected to the operation, use or maintenance of an uninsured vehicle. The plaintiff argues that he was struck while he was in his car with the motor running. Further, he argues that Galvin had just alighted from his own vehicle after using it as a staging, listening post and operations platform, when he walked over to the plaintiff's vehicle and punched the plaintiff in the face. This, the plaintiff argues, creates a genuine issue of material fact sufficient to survive the defendant's motion for summary judgment.
Standard 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.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 1266 (2006). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
Analysis
As required by General Statutes § 38a-336(a)(1), every car insurance company must provide "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 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." "Implicit in the statutory scheme of 38-175c and in the definition of an `underinsured motor vehicle' in 38-175c(b)(2), is the commonsensical requirement that the underinsured vehicle be causally connected to the loss for which the claimant seeks compensation. The purpose of the underinsured coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile." (Internal quotation marks omitted.) Travelers Ins. Co. v. Kulla, CT Page 15136 216 Conn. 390, 398, 579 A.2d 525 (1990).
In this matter, the plaintiff claims uninsured motorist benefits pursuant to GEICO policy number 2004056897. The relevant portion of that policy is Section IV, which, under the heading "Losses We Pay," states in relevant part that "[u]nder this coverage, we [GEICO] will pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle . . . arising out of the ownership, maintenance or use of that motor vehicle." (Defendant's Brief, Exhibit A.) The plaintiff argues that Galvin used his vehicle to drive to the scene where the plaintiff was punched, lured the plaintiff to the parking lot, then used his vehicle as a listening and observation post. Further, the plaintiff argues, that at a minimum, Galvin used his vehicle to take shelter from the weather while deciding to attack the plaintiff and "[t]o exclude these types of uses from coverage would be to exclude any road-rage case where a perpetrator exited his vehicle before attacking his victim." (Plaintiff's Brief, p. 4.)
The plaintiff's argument, however, is incorrect. First, as was stated by plaintiff's counsel during oral arguments, this is not a case that was sparked by road rage. Second, based on the plaintiff's own testimony during his deposition, the following events are undisputed. The plaintiff arrived at the Cranberry Bog parking lot around four o'clock to meet up with some friends the day he was struck by the plaintiff. When he arrived at the parking area he recognized Galvin's truck, but did not see Galvin. After about two or three minutes, Galvin walked from his truck over to the plaintiff's vehicle. Prior to Galvin walking over to the plaintiff's vehicle, neither had spoken to each other that day. Galvin then came up to the plaintiff's window and told the plaintiff to get out of his car, to which the plaintiff replied no. Then, Galvin, through the plaintiff's open driver side window, slapped the plaintiff in the face for allegedly trying to run over Galvin's cousin. After that, when the plaintiff turned around, Galvin punched him in the face. The slap to the plaintiff's face was not what caused the plaintiff's injury, rather, the subsequent punch fractured the plaintiff's lower eye socket. Based on the deposition testimony and the witness statements attached to the plaintiff's brief, apparently Galvin believed that the plaintiff had, about a week or so prior, attempted to run over his cousin.
Based on all of these facts, it is clear that there is no evidence, whatsoever, that Galvin used his vehicle in any way to harm the plaintiff. It is important to note that the policy states that "[u]nder this coverage, we [GEICO] will pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle . . . arising out of the ownership, maintenance or use of that motor vehicle." (Emphasis added.) Although Galvin alighted from his vehicle in order to walk over to the plaintiff before punching him, there is no evidence that the plaintiff's injuries were caused by the use, operation or maintenance of an uninsured motor vehicle. Galvin never used his vehicle to block the plaintiff in, nor was the plaintiff getting punched incident to any road rage between the plaintiff and Galvin. Rather, Galvin's actions were a wholly independent act unrelated to the defendant's use of his motor vehicle. "The mere fact that the assault would not have happened without the vehicle, as argued by the plaintiff, does not render the assault one that resulted from the use of the motor vehicle. The actions of [Galvin] were disassociated from and independent of [Galvin's] vehicle's use." Walsh v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 0050665 (April 9, 1998, Grogins, J.) (22 Conn. L. Rptr. 10).
The plaintiff does state in his deposition that he thinks he was set up in going to the parking lot, "[b]ut that's what in my head I assume as the sequence of what had happened." (Plaintiff's deposition, p. 64.) This the plaintiff argues, is sufficient to create a genuine issue of material fact that the defendant lured the plaintiff to the parking lot. The problem with this argument, however, is that it fails to connect Galvin's car in any way to the attack on the plaintiff. Even if, as the plaintiff assumes, Galvin was responsible for luring the plaintiff to the parking area, that does not explain how the defendant's car was used, maintained or owned in such a way as to effectuate the assault against the plaintiff. For instance, there is no evidence that the plaintiff followed the defendant's vehicle to the parking lot, that the defendant boxed the plaintiff's car in, preventing him from leaving, or used his vehicle in some way to assist Galvin in punching the plaintiff in the face. Despite the plaintiff arguing that this creates a genuine issue of material fact, it does not because it fails to connect Galvin's car to the plaintiff's injuries.
Burden shifting is in order. "Once the moving party has met its burden . . . 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 under Practice Book [§ 17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, supra, 279 Conn. 318-19. The burden, therefore, shifts to the plaintiff to show that there is a genuine issue of material fact, sufficient to survive summary judgment. The plaintiff cites to the following cases to support his theory that Galvin used his vehicle as a "staging platform," and, therefore, he does have a valid claim for coverage under GEICO's uninsured motorist policy.
The plaintiff cites Padillo v. Allstate Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 00 0375169 (June 19, 2002, Sheedy, J.) [32 Conn. L. Rptr. 325]. In Padillo, the court relied on the decision of Hogle v. Hogle, 167 Conn. 572, 356 A.2d 172 (1975), which held that "it is generally understood that for liability for an accident or an injury to be said to `arise out of' the `use' of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, it is sufficient to show only that the accident or injury `was connected with,' `had its origins in,' `grew out of,' `flowed from,' or `was incident to' the use of the automobile, in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile." Id., 577.
In Padillo, the plaintiff "claimed that an unidentified driver had been following his vehicle for some time and that that unidentified driver shot him in the leg after Padillo pulled his vehicle to the side of a public street, opened his door, and began to exit the car. The uninsured driver left the scene." Padillo v. Allstate Ins. Co., supra. The plaintiff brought an action against his insurance company, Allstate, which moved for summary judgment on the grounds that no genuine issues of material fact existed. The court denied the defendant's motion for summary judgment because "[t]he events which culminated in the plaintiff's shooting grew out of or flowed from his operation of the car the defendant insured. The plaintiff's use of his automobile was clearly `connected to' the shooting which caused his injury." Id. Based on this case, the plaintiff argues that the court should focus not on the tortfeasor's use of his vehicle, but rather on the victim's use of his own vehicle.
In his brief, the plaintiff first argues that the court should look at Galvin's use of his vehicle. The plaintiff argues that Galvin used his vehicle to take shelter from the weather while planning and deciding to attack the plaintiff and he used his vehicle as a listening and observation post to attack the plaintiff. Based on this, the plaintiff asserts that Galvin sufficiently used his vehicle to arrive at the point of attack, and therefore, it is related to the plaintiff's claim. As already explained, this argument fails since there is no genuine issue of material fact that Galvin did not use, operate or maintain his own vehicle when punching the plaintiff in the face.
The plaintiff argues that since he was sitting in his car while it was running when he was punched in the face, this is analogous to Padillo because his automobile was clearly "connected to" his getting punched in the face. This argument fails to take into consideration the contract language located in the GEICO policy. The policy clearly states, as previously stated, that "[u]nder this coverage, we [GEICO] will pay damages for bodily injury caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle . . . arising out of the ownership, maintenance or use of that motor vehicle." GEICO is only liable to pay for damages that the plaintiff suffered as a result of Galvin's use, ownership or maintenance of his vehicle, not the plaintiff's vehicle, which was clearly insured by GEICO at the time. The plaintiff has failed to show how Galvin's vehicle, other than being a means to get Galvin to the parking lot, was in any way connected to the plaintiff being struck in the face.
The plaintiff also cites to Mills v. Colonial Penn Ins. Co., 47 Conn.Sup 17, 768 A.2d 1 (2000) [28 Conn. L. RPtr. 471]. In Mills, the plaintiff was stopped at a traffic light in her vehicle when another vehicle drove up next to her and the occupants of that vehicle shot her. The court held that the assailant's liability for tie plaintiff's damages arose out of the use of the assailant's motor vehicle, and, therefore, the court denied the defendant's motion for summary judgment. As already determined in this case, the plaintiff's injuries did not result from the use of Galvin's vehicle, and further, the facts in Mills are not similar to those in this matter. In this matter, the plaintiff was in a parking lot and both parties had parked their vehicles. The defendant was already at the parking area and neither party had seen each other earlier that day or been involved in any type of road rage incident. The plaintiff suggests that the defendant used his car as a listening post and staging platform however, there is no evidence of that fact, other than the plaintiff's testimony that he believed at one point Galvin overheard something the plaintiff said to another girl in the parking lot. Although the plaintiff's car was running when he was punched, this does not create enough of a casual connection between Galvin's use of his vehicle and the plaintiff's injury in order for the plaintiff to recover pursuant to the uninsured motorist policy.
Even if the court were to ignore the language contained in the plaintiff's GEICO insurance policy, the plaintiff still has not provided sufficient evidence to show how his vehicle was in any way related to his getting punched in the face. Other than the plaintiff driving his car in order to get to the parking lot and sitting in his vehicle when getting punched, there is no evidence that the plaintiff's vehicle played any role in the attack by Galvin. The plaintiff could have very well be sitting on a park bench or standing outside of his car when he was hit. Further, in Padillo, the plaintiff was followed by another motorist, and while attempting to get out of his car was shot by that motorist while that motorist was in his own car. The facts of Padillo are distinguishable from this case. In this case the tortfeasor was outside his own vehicle when the striking allegedly occurred.
Conclusion
Since the court has found that there is no causal connection between the tortfeasor's use, ownership or maintenance of his own vehicle and the plaintiff's injury, the Motion for Summary Judgment is granted.