Opinion
No. CV04-400 46 14S.
December 5, 2006.
MEMORANDUM OF DECISION
The plaintiff, Victor Rios, alleges in this action that he was injured when an unknown vehicle collided with the vehicle he was driving, causing him to strike the highway median divider. He was driving a vehicle rented by his employer, Atticus Bakery d/b/a Chabaso Bakery (Atticus), from Ryder Truck Rental (Ryder). In this three-count complaint, Rios seeks uninsured motorist benefits from Old Republic Insurance Company (Old Republic) and from Northern Insurance Company of New York (Northern). Both insurance companies provided auto insurance policies to Ryder which contained coverage for uninsured motorist claims. Rios also sues his employer, Atticus, claiming that if there is no coverage under the other insurance policies, that Atticus is a self-insurer for uninsured motorist benefits. Ryder is not named as a defendant.
The actions against Atticus and Northern have been withdrawn. Old Republic is the only remaining defendant.
Old Republic has moved for summary judgment on the ground that the insurance policy between itself and Ryder did not cover the claim because Atticus, when renting the vehicle, waived liability coverage. In addition, Old Republic maintains that Connecticut law does not require an insurer of a rental vehicle to offer uninsured motorist coverage to customers who have waived liability coverage. Rios opposes summary judgment. Although he does not seriously contest that Atticus, when renting the vehicle, waived liability coverage, he argues that although Connecticut law permits a waiver as to liability coverage, it does not permit a waiver as to uninsured motorist coverage and Old Republic is, therefore, required to provide uninsured motorist coverage.
Both parties have provided memoranda of law in support of their positions. Old Republic has also provided: (1) a sworn affidavit from Jane Kirby, Ryder's claims analyst, authenticating the insurance agreement between Ryder and Old Republic and the rental agreement between Ryder and Atticus; (2) exhibits A through F, which are portions of the insurance agreement; and (3) exhibit G, which is the rental agreement between Ryder and Atticus.
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.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
"The courts hold the [summary judgment] movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, 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]." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
There is no genuine issue of material fact that the insurance policy between Old Republic and Ryder unambiguously provides no liability coverage to Rios unless Atticus and Ryder had so agreed in the rental agreement. There is also no genuine issue of material fact that in the rental agreement, Atticus expressly rejected liability coverage and agreed to obtain its own coverage as noted on the first page of the agreement. The parties do not seriously dispute that there is no legal obligation on behalf of a rental company, in renting a vehicle, to provide liability insurance to the renter who agrees to waive renter provided coverage and to provide his own liability coverage. This dispute, however, does not involve the waiver of liability coverage by Atticus. Rios argues that Connecticut law requires that an insurer of a rental vehicle must provide uninsured motorist coverage to customers, including those who have waived liability coverage. He argues that because Connecticut law requires uninsured motorist coverage, it must be provided in the policy with Old Republic. The insurance policy issued by Old Republic, in fact, provides that it does include uninsured motorist coverage if required by state law.
Exhibit E, entitled "Driverless Autos," provides in paragraph one that "[u]nless the lease/rental agreement states in writing that such lessee/renter is to be provided with automobile liability insurance by such Named Insured, no insurance shall be afforded under this policy to such lessee/renter, his agents or employees, or to any persons or organizations legally responsible for the use of the vehicles so leased/rented by such lessee/renter."
Exhibit G, the Ryder rental agreement, also provides in paragraph 5B under the section "Customer Liability Insurance," that "[i]f Customer elects to provide liability insurance and the other side of this Agreement is so endorsed . . . Customer agrees to insure the Vehicle with a standard form automobile liability insurance policy . . ."
Regulations promulgated by the insurance commissioner involving minimum provisions for liability coverage provide: "The insurer's obligation to pay and defend may be made inapplicable . . . to bodily injury or property damage arising out of the ownership . . . (or) use . . . of any . . . motor vehicle . . . while rented to others by the named insured . . ." Regs., Conn. State Agencies § 38a-334-5(c)(11)(B)(ii).
Exhibit F, the portion of the insurance policy describing covered autos, provides: "Only those `autos' that because of the law in the state where they are licensed or primarily garaged are required to have and cannot reject uninsured motorist coverage where the state statutes allow rejection of this coverage, it has been rejected. Where coverage is mandatory, such coverage is provided for only the minimum limits required by that state in order to be in compliance with that state's statute."
Both parties rely primarily on the holding in Platcow v. Yasuda Fire Marine Ins. Co. Of America, 59 Conn.App. 47, 755 A.2d 356 (2000). In that case, the Appellate Court held that neither the lease, nor Connecticut insurance statutes or regulations require that a lessor provide uninsured motorist coverage protection to a lessee when the issue involves a long-term lease of the automobile. Platcow v. Yasuda Fire Marine Ins. Co. Of America, supra, 59 Conn.App. 52-57. The court reviewed the interplay of Connecticut insurance statutes in determining that there was no obligation to provide uninsured motorist coverage. The court concluded that the obligation to provide such coverage rested with the vehicle's owner. Id. General Statutes § 38a-363(d) defines the owner of a private passenger motor vehicle as "the person who owns the legal title thereto, except where the motor vehicle is the subject of a security agreement or lease with option to purchase with the debtor or lessee having the right to possession in which `event owner' means the debtor or lessee." The court held that because the lessee is the "owner" in a long-term lease with option to purchase, the lessee, not the lessor, had the obligation to provide uninsured motorist coverage. Id.
Two Superior Court cases have relied on Platcow v. Yasuda Fire Marine Ins. Co. Of America, supra, 59 Conn.App. 47, and held that a rental car company in a short-term rental also does not have to provide uninsured motorist coverage. Both cases are unpersuasive and distinguishable.
In Przybyloski v. Catholic Mutual Group, Superior Court, judicial district of Ansonia-Milford, Docket No. CV99 065436 (January 23, 2002, Alander, J.) ( 31 Conn. L. Rptr. 235) the court focused on the idea that the owner of the rental company, not the insurance company, is obligated to provide uninsured motorist coverage. Because, in that case, the rental car company had required the lessee to obtain uninsured motorist coverage for itself, the court felt that the company had fulfilled that mandate. Id. In Okonkwa v. Camrac, Inc., Superior Court, judicial district of Hartford, Docket No. CV04 0832126 (September 29, 2004, Hennessey, J.) ( 38 Conn. L. Rptr. 82) the court noted that the plaintiff did have other uninsured motorist coverage protecting himself. The court relied on insurance regulations dealing with liability coverage and found the regulations to be applicable to uninsured motorist coverage. Id. Both courts relied on a footnote in Platcow v. Yasuda Fire Marine Ins. Co. Of America, supra, 59 Conn.App. 56 n. 16, and noted that "mandatory uninsured motorist coverage operates in parity with liability insurance coverage." Id. It was held that because a short-term lessee can waive liability coverage, in doing that he also waives uninsured motorist coverage.
See Regs., Conn. State Agencies § 38a-334-5(c)(11)(B)(ii).
Neither case addresses the limitation in Platcow v. Yasuda Fire Marine Ins. Co. Of America, supra, 59 Conn.App. 47, where the court makes it clear that the decision applies to long-term leases. In fact, the court in Platcow used this distinction to differentiate two Superior Court cases cited by the plaintiff that reached the opposite conclusion, stating that "[i]f these cases involve short-term rentals, they are distinguishable . . ." Id., 55 n. 15. The court also distinguished a case from another jurisdiction, noting that the opinion does not disclose if the rental agreement was long-term or short-term and also that that state "has no statutory definition that distinguishes between short-term rentals and long-term leases." Id. Neither case also addresses the fact that Platcow was based primarily on the fact that under Connecticut statutes, the lessee in a long-term lease, and not the renter, is seen as the "owner" for insurance purposes.
As a matter of law, it cannot be said that a short-term rental company does not have an obligation to provide uninsured motorist coverage even in a situation where the lessee waives liability coverage. General Statutes § 38a-371(a)(1) provides that "[t]he owner of a private passenger motor vehicle required to be registered in this state shall provide and continuously maintain throughout the registration period security in accordance with sections 38a-334 to 38a-343, inclusive." General Statutes § 38a-336 requires uninsured motorist coverage and provides that "[e]ach automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . . [and] . . . [e]ach insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage . . ." As pointed out in Platcow v. Yasuda Fire Marine Ins. Co. Of America, supra, 59 Conn.App. 53-56, by statute in Connecticut, in the case of a long-term lease, the "owner," who has this obligation to provide coverage, is the lessee. Nothing in our statutes provides that the lessee in a short-term rental is also deemed to be the owner with the obligation to insure the vehicle. If the lessee in a short-term rental is not the owner, then the rental company is still the owner.
In addition, Section 38a-334-5(c)(11)(B)(ii) of the Regulations of Connecticut State Agencies, does exempt insurers, in the case of rental vehicles, from providing liability coverage. Although in many respects uninsured motorist coverage does operate in parity with liability coverage, no similar exemption is provided in the regulations by the insurance commissioner which deal explicitly with uninsured motorist coverage. Section 38a-334-6(c) of the Regulations of Connecticut State Agencies contains no similar exemption from the obligation to provide uninsured motorist protection in policies involving rental vehicles.
Although there is no genuine issue of fact that the plaintiff's employer, the renter of the vehicle, waived liability coverage, and that such waiver is permitted under Connecticut law, it cannot be said as a matter of law at this time that the defendant is not required to provide uninsured motorist coverage. Other Superior Court decisions have agreed. See George v. Allstate Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV95 0368984 (July 17, 1998, O'Keefe, J.) ( 22 Conn. L. Rptr. 450); Aversano v. Agency Rent-A-Car, Superior Court, judicial district of Danbury, Docket No. CV97 0367302 (October 31, 1997, Stodolink, J.) ( 20 Conn. L. Rptr. 553).
This decision should in no way be read to hold that any obligation to provide uninsured motorist insurance rests with Old Republic, to the exclusion of Ryder.
The Motion for Summary Judgment is denied.