Opinion
HHDCV156060624S
04-15-2016
Dannie Sears v. Cherri Shanika Brooks et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #123
Kevin G. Dubay, J.
The matter presently before the court arises out of a wrongful death action filed by the plaintiff, Dannie Sears, as administratrix of the estate of Marie White (decedent). The complaint alleges, inter alia, a claim for underinsured motorist benefits against the decedent's automobile liability insurer, Metropolitan Property and Casualty Insurance Company, following an automobile accident that took place on November 28, 2013. Presently before the court is the defendant's motion for summary judgment as to the fourth count, which seeks underinsured motorist benefits under the automobile liability policy between the defendant and the decedent.
For purposes of this memorandum of decision, references to the defendant will be in reference to Metropolitan Property and Casualty Insurance Company.
The parties have stipulated to the relevant facts. Specifically, the parties have stipulated that the decedent's wrongful death damages stemming from the November 28, 2013 accident are at least $50,000. Moreover, the automobile liability policy between the defendant and the decedent provided for underinsured or uninsured motorist benefits in the amount of $50,000 per person and $50,000 per occurrence, subject to certain coverage reductions and/or set-offs. Additionally, the parties have stipulated that the tortfeasor was underinsured at the time of the November 28, 2013 accident; at the time of the accident, the tortfeasor held an automobile liability policy with Safeco Insurance Company of Illinois (Safeco) that provided bodily injury liability coverage for $20,000 per person and $40,000 per occurrence.
The defendant attached a copy of the declaration page for the tortfeasor's policy as Exhibit B to its motion for summary judgment. The plaintiff does not dispute the bodily injury liability coverage available to the tortfeasor.
In connection with this accident, the tortfeasor's automobile liability insurer, Safeco, made payments to third parties due to the tortfeasor's liability. These payments to third parties totaled $20,000; thus, the remaining liability coverage available under the tortfeasor's liability policy is $20,000, which the parties have stipulated that the plaintiff will accept on behalf of the decedent. Additional facts will be included as necessary.
DISCUSSION
The standard governing this court's review of the present motion for summary judgment is well settled. " [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015); see also Practice Book § 17-49 (summary judgment standard). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
The principal dispute between the parties is whether the defendant is entitled to reduce the underinsured motorist benefits available to the plaintiff under the decedent's automobile liability policy by all of the sums paid by Safeco on behalf of the tortfeasor, or only by the amount paid by Safeco on behalf of the tortfeasor to the plaintiff . The defendant argues that it is entitled to reduce the underinsured motorist benefits available by all sums, which would amount to a reduction of $40,000. Thus, the defendant argues that, under the terms of the policy which afforded the decedent with $50,000 in underinsured motorist coverage, the plaintiff is only entitled to recover $10,000 as a matter of law.
Our Supreme Court has instructed insurers to raise issues of policy limitations by way of special defense. Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 806, 646 A.2d 806 (1994).
The plaintiff raises three arguments in response. First, because the defendant's insurance policy violates the informed consent requirements contained in General Statutes § 38a-336(2)(A) through (C), the amount of underinsured motorist benefits available to the plaintiff are equal to the decedent's liability coverage. Second, even if decedent's policy only provided for $50,000 in underinsured motorist benefits, the policy is only enforceable to the extent that such sums are actually paid to the plaintiff. In support of this contention, the plaintiff argues that the legislature enacted clarifying legislation when it passed General Statutes § 38a-336, as amended by Public Acts 14-20, § 1, of the 2014 Public Acts (P.A. 14-20), and that such amendment has retroactive effect. Finally, the plaintiff argues that § 38a-334-6(d)(1)(A) of the Regulations of Connecticut State Agencies is void, as it is no longer consistent with Connecticut law.
I
As an initial matter, the resolution of the defendant's motion for summary judgment hinges on an interpretation of the language contained in the automobile insurance policy and the language contained in the applicable regulation. " The Connecticut rule of construction of insurance policies is well settled. If the terms of an insurance policy are of doubtful meaning, that permissible construction which is most favorable to the insured is to be adopted; but if they are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and the courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." (Internal quotation marks omitted.) Anastasia v. General Casualty Co of Wisconsin, 307 Conn. 706, 712, 59 A.3d 207 (2013).
" [Our Supreme Court has] previously concluded that an insurer may not, by contract, reduce its liability for . . . uninsured or underinsured motorist coverage except as [§ 38a-334-6] of the Regulations of Connecticut State Agencies expressly authorizes . . . In order for a policy exclusion to be expressly authorized by [a] statute [or regulation], there must be substantial congruence between the statutory [or regulatory] provision and the policy provision . . . Substantial congruence exists when [t]he terms in the policy . . . and [the regulation] correspond in all material respects." (Citations omitted; internal quotation marks omitted.) Id., 714.
In the present case, a substantial congruence exists between the plain and unambiguous terms of the policy and the regulation. Section 38a-334-6(d)(1)(A) of the Regulations of Connecticut State Agencies permits insurers to reduce the amount payable pursuant to a claim for uninsured or underinsured motorist coverage " to the extent that damages have been . . . paid by or on behalf of any person responsible for the injury . . ." The decedent's policy with the defendant provides that the defendant may reduce its underinsured motorist liability benefits by " any amount . . . paid by or on behalf of any liable parties." The plain and unambiguous language contained in the policy tracks the language of § 38a-334-6(d)(1)(A) in all material respects. See Allstate Ins. Co. v. Lenda, 34 Conn.App. 444, 456, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d 149 (1994). Accordingly, the defendant is entitled to judgment as a matter of law based on this substantial congruence unless this court agrees with any of the plaintiff's arguments in opposition to the defendant's motion for summary judgment. For the following reasons, this court is unpersuaded by the arguments advanced by the plaintiff.
II
The court first addresses the plaintiff's argument that the decedent's request for underinsured motorist benefits that are less than the decedent's available bodily injury liability coverage is invalid because the election of coverage form that the decedent signed violated General Statutes § 38a-336 (2). Specifically, the plaintiff notes that the decedent's bodily injury liability coverage available under the policy was for $50,000 per person and $100,000 per accident, but the decedent's underinsured motorist coverage was only for $50,000 per person and $50,000 per accident. The plaintiff argues that, to be enforceable, the decedent's request for a reduction in underinsured motorist coverage must have been made by signing a valid consent form.
Section 38a-336(a)(2) provides in relevant part that " [n]otwithstanding any provision of this section, each automobile liability insurance policy issued or renewed on or after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112 . . . No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form that shall contain: (A) an explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer." (Emphasis added.) " [T]he purpose of underinsured motorist insurance is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured." (Emphasis in original.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 27, 699 A.2d 964 (1997).
Section 38a-336(a)(2) is designed to protect individual consumers and to ensure that a consumer's decision to reduce underinsured motorist coverage is an informed one. See, e.g., Nationwide Mutual Ins Co. v. Pasion, 219 Conn. 764, 770-71, 594 A.2d 468 (1991) (noting that legislative history for General Statutes § 38-175c(a)(2), now § 38a-336, reflected desire to ensure that consumers made informed decisions regarding coverage that protects them and their family members); see also J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (2d Ed. 1999) § 1.10.3, p. 110.
The evidence before this court indicates that the election of coverage form purportedly signed by the decedent did not, in fact, conform to the mandates of § 38a-336(a)(2). Nonetheless, that deficiency is not material for purposes of addressing the present motion for summary judgment. Here, the decedent elected bodily injury liability coverage that provided $50,000 in coverage per person. Thus, the decedent held $50,000 per person in coverage " to protect against loss resulting from the liability imposed by law . . ." General Statutes § 38a-336(a)(2). Moreover, only one tortfeasor is alleged to have caused the November 28, 2013 accident. Although the decedent's election of coverage form did not fully comply with the mandates of § 38a-336(a)(2), the statute only requires that the decedent have uninsured and underinsured motorist coverage that was " equal to those purchased to protect against loss resulting from the liability imposed by law"; General Statutes § 38a-336(a)(2) (emphasis added.); which, in this case, would nonetheless be $50,000 per person. As presented by the stipulated facts, the decedent would only be entitled to $50,000 in underinsured motorist benefits, regardless of the election of coverage form's conformity to § 38a-336(a)(2). Accordingly, this deficiency cannot, as a matter of law, defeat the defendant's motion for summary judgment.
III
The court next addresses the plaintiff's argument that, subsequent to commencing this action, the Connecticut General Assembly amended General Statutes § 38a-336 by passing P.A. 14-20. The plaintiff argues that this amendment clarified the legislature's original intent and should, therefore, be afforded retrospective effect.
As noted by the return of service, this action commenced on July 1, 2015, when State Marshal Peter J. Privitera served the defendant's agent for service with true and attested copies of the writ, summons, and complaint.
" Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute." Coley v. Camden Associates Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997), citing State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987). " In order to determine the legislative intent, [courts] utilize well established rules of statutory construction. [The court's] point of departure is General Statutes § 55-3, which states: 'No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect.' The 'obligations' referred to in the statute are those of substantive law . . . Thus, [courts] have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only . . . This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively . . . Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect . . . [Courts] generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that the amendment be given retrospective effect." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 718-19, 714 A.2d 1209 (1998); accord Miano v. Thorne, 218 Conn. 170, 175-76, 588 A.2d 189 (1991).
In Allstate Ins. Co. v. Lenda, supra, 34 Conn.App. 451, the Appellate Court was called upon to determine, inter alia, whether an insurer of an automobile policy providing for underinsured motorist benefits was entitled to reduce the amount of underinsured motorist benefits provided under that policy by the full amount of liability coverage paid by, or on behalf of, a tortfeasor. This included amounts paid to individuals other than the injured policyholder who sought underinsured motorist benefits. Id. The Appellate Court held that the language contained in the policy in that case permitted such a reduction and that such a reduction was permissible under § 38a-334-6 of the Regulations of Connecticut State Agencies. Id., 456.
General Statutes § 38a-336(b), as amended by P.A. 14-20, § 1, currently provides in relevant part that " [i]n no event shall there be any reduction of uninsured or underinsured motorist coverage limits or benefits payable . . . (2) with respect to an automobile liability insurance policy issued or renewed on or after October 1, 2015, (A) for amounts paid by or on behalf of any tortfeasor for bodily injury to anyone other than individuals insured under the policy against which the claim is made . . ."
At its core, P.A. 14-20 imposes new obligations on insurers that did not exist prior to its enactment. Specifically, pursuant to § 38a-334-6 of the regulations, as interpreted by Lenda, an insurer was permitted to seek a reduction in underinsured motorist benefits by factoring in any payments made by or on behalf of a tortfeasor before paying an injured policyholder underinsured motorist benefits pursuant to the governing policy. General Statutes § 38a-336, as amended by P.A. 14-20, § 1, now prohibits such a reduction.
In arguing that P.A. 14-20 was enacted to clarify the legislature's intent, the plaintiff cites, at great length, the legislative history for that amendment. Notably, the testimony from the Chairman of the Insurance and Real Estate Committee, Representative Robert Megna, indicates at various points that P.A. 14-20 " just really [is] a clarification . . . about the regulation that the Department of Insurance had put out." 57 H.R. Proc., Pt. 11, 2014 Sess., pp. 37 19-20; see also id., p. 3728 (describing circumstances similar to Lenda and that such outcome " really you know that's not the intent").
Although such statements reflect an effort to enact " clarifying legislation" that would, under our law, have retrospective application, such statements are contrasted with the testimony from Representative Megna that refers to P.A. 14-20 as only being applicable after the effective date of October 1, 2015. Notably, Representative Robert Sampson inquired why the effective date for P.A. 14-20 was October 1, 2015. Id., p. 3730. In response, Representative Megna noted that the effective date " ha[d] to do with the issuance or renewal of an insurance policy. And it's a future date so I imagine it's not going to take into consideration any accidents or prior claims or losses that maybe [sic] going on now ." (Emphasis added.) Id., 3731; see also id., p. 3742 (Representative Megna responding to similar question, noting that " maybe those . . . companies that were taking offsets for other individuals . . . will probably continue to do what they're doing until . . . the effective date of this bill kicks in"). Thus, the Chairman of the Insurance and Real Estate Committee described P.A. 14-20 as being an effort to clarify existing law, but that his understanding was also that P.A. 14-20 would not impact pending claims.
It is also noteworthy that Lenda was decided in 1994, nearly twenty years before the legislature debated P.A. 14-20, and that the Appellate Court has confirmed the validity of Lenda's holding. See Jacaruso v. Lebski, 118 Conn.App. 216, 225-26, 983 A.2d 45 (2009) (unambiguous terms of policy reflected combination of subsections (d)(1)(A) and (C) of § 38a-334-6 and, therefore, permitted reduction of uninsured and underinsured motorist benefits based on policyholder's settlement payment to third party where policyholder was also negligent tortfeasor); see also United States Fidelity & Guaranty Co. v. Pitruzzello, 35 Conn.App. 638, 644, 646 A.2d 936, cert. denied, 231 Conn. 933, 649 A.2d 255 (1994) (noting that Lenda's holding permitted reduction of underinsured motorist benefits by amounts tortfeasor paid to all individuals); Allstate Ins Co. v. Link, 35 Conn.App. 338, 347, 645 A.2d 1052, cert. denied, 231 Conn. 924, 648 A.2d 161 (1994) (same). Moreover, courts have approved of similar reductions in underinsured motorist benefits when the insurance policies at issue contained clauses similar to those at issue in Lenda . See, e.g., Schulze v. Farm Family Casualty Ins. Co., Superior Court, judicial district of New London, Docket No. CV-03-0127801-S (September 1, 2006, Jones, J.); Brouker v. Metropolitan Property & Casualty, Superior Court, judicial district of Hartford, Docket No. CV-95-0555971-S (May 7, 1998, Devlin, J.) (22 Conn. L. Rptr. 157).
Against this backdrop, the passage of P.A. 14-20 is " not a classic reaction to a judicial interpretation that was deemed inappropriate." (Internal quotation marks omitted.) Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989) superseded by statute as stated in Fahy v. Fahy, 227 Conn. 505, 510, 630 A.2d 1328 (1993). Instead, as a matter of policy, the legislature passed P.A. 14-20 to legislatively overrule Lenda and those cases that similarly interpreted § 38a-334-6 of the regulations. Contrary to the plaintiff's argument, the act was not " clarifying legislation"; rather, the legislature was overruling an ingrained rule. See id., 471-73 (where many years of precedent supports particular interpretation of statute, public act passed to reject such interpretation does not have retrospective effect). Moreover, in noting the effective date of P.A. 14-20 as being October 1, 2015, the legislature did not clearly and unequivocally express its intent to have the amendment apply retroactively. Accordingly, pursuant to the presumption embodied in § 55-3, P.A. 14-20 only applies prospectively.
Although Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989), was superseded by statute, it is instructive for purposes of the present case, as our Supreme Court recognized that a consistent judicial interpretation of a particular statute for a number of years creates a rule of law. As was highlighted by Fahy v. Fahy, 227 Conn. 505, 510-11, 630 A.2d 1328 (1993), the legislature can unequivocally instruct courts to apply a statute retrospectively and in a manner contrary to a consistent body of case law. Although the legislature could have chosen to do so with regard to General Statutes § 38a-336(b), as amended by P.A. 14-20, § 1, such direction is missing in the statute's current form. To the contrary, the plain language of the statute indicates that such restrictions on an automobile liability insurance policy are to be applied to those policies " issued or renewed on or after October 1, 2015 . . ." (Emphasis added.) General Statutes § 3 8a-336 (b), as amended by Public Act 14-20, § 1.
This was a rule that the legislature was presumed to be aware of. Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992) (" [T]he legislature is presumed to be aware of the judicial construction placed upon its enactments").
IV
Lastly, the court addresses the plaintiff's contention that, " to the extent that Lenda construed section 38a-334-6(d)(1)(A) of the Connecticut Insurance Regulations as authorizing such a reduction, the regulation is void." Specifically, the plaintiff argues that, in light of P.A. 14-20, the regulation violates public policy.
Section 38a-334-6(d)(1) of the Regulations of Connecticut State Agencies provides in relevant part that " [t]he limit of the insurer's liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury . . ."
" [I]t is well established that an administrative agency's regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute . . . Moreover, [a] person claiming the invalidity of a regulation has the burden of proving that it is inconsistent with or beyond the legislative grant." (Citation omitted; internal quotation marks omitted.) Giglio v. American Economy Ins. Co., 278 Conn. 794, 806-07, 900 A.2d 27 (2006). " If a regulation has been in existence for a substantial period of time and the legislature has not sought to override the regulation, this fact, although not determinative, provides persuasive evidence of the continued validity of the regulation." (Internal quotation marks omitted.) Id., 807; accord Velez v. Commissioner of Labor, 306 Conn. 475, 48 5-86, 50 A.3d 869 (2012).
Additionally, " [t]he automobile liability insurance business is one which is extensively regulated . . . and judicial revision of the terms upon which such policies are issued may produce extensive repercussions throughout the insurance industry of the state." (Internal quotation marks omitted.) Vitti v. Allstate Ins. Co., 245 Conn. 169, 192, 713 A.2d 1269 (1998). In this context, " the Insurance Commissioner has a very broad grant of regulatory authority in filling in the interstices of the uninsured and underinsured motorist coverage legislation, and in doing so his regulation is entitled to great deference." (Internal quotation marks omitted.) Id., 182.
This court is not persuaded by the plaintiff's argument that the regulation, as interpreted by our Appellate Court in Lenda, is void. As an initial matter, the plaintiff's challenge to § 38a-334-6(d)(1)(A) is effectively a re-framed attempt to have this court apply P.A. 14-20 retroactively. This court has determined that P.A. 14-20 was not clarifying legislation and should only be applied prospectively. Moreover, § 38a-334-6(d) has remained substantively unchanged since Lenda was decided in 1994, and this is " persuasive evidence of the continued validity of the regulation." Giglio v. American Economy Ins. Co., supra, 278 Conn. 807. To the extent that the plaintiff is dissatisfied with the language of that regulation, " [the] remedy lies with the legislature or the Insurance Commissioner, not with this court." (Internal quotation marks omitted.) Vitti v. Allstate Ins. Co, supra, 245 Conn. 193.
It is noteworthy that, in passing P.A. 14-20, the legislature did not explicitly invalidate § 38a-334-6(d)(1)(A). This is especially informative because the legislative history pertaining to P.A. 14-20 alludes to § 38a-334-6(d)(1)(A), which was the regulation at issue in Lenda . See, e.g., 57 H.R. Proc., Pt. 11, 2014 Sess., pp. 3715, remarks of Representative Robert Megna (P.A. 14-20 dealt with " how the correct application of that regulation put out by the Department of Insurance should apply"); id., 3728 (" So it was at that point we realized there's a defect in the regulation actually. Not necessarily--not but--not particularly the statute but we are coming to correct it."). Thus, it appears that P.A. 14-20 only addressed a particular interpretation or application of § 38a-334-6(d)(1)(A) and not the complete invalidity of that subsection itself.
CONCLUSION
For the foregoing reasons, this court grants the defendant's motion for summary judgment based on the ground that it is entitled to reduce the underinsured motorist benefits available to the plaintiff by all of the sums paid by or on behalf of the tortfeasor in connection with the November 28, 2013 accident.