Opinion
FBTCV156053099S FBTCV156053870S
07-19-2017
Diana Serino v. Park City Insurance Group, LLC; Joseph Serino v. Park City Insurance Group, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
These are consolidated declaratory judgment actions seeking a declaration whether an automobile liability insurance policy (" the Policy") issued by Safeco Insurance Company of Illinois (" Safeco") covers personal injuries sustained by Diana Serino from an automobile accident in which she was a passenger in an automobile owned by her and driven by her husband, Joseph Serino. Safeco has denied liability coverage under the Policy issued to Joseph Serino on the ground that the Policy excludes coverage for a vehicle owned by the resident spouse of the insured that is not listed in the declarations of the Policy. Safeco has moved for summary judgment and the Serinos have each moved for summary judgment against Safeco. For the reasons stated below, the motion of Safeco is granted and the motions of the Serinos are denied.
The parties have stipulated to the facts relied on by all parties in support of their motions.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
The Automobile Involved in the Accident Was Not A " Covered Auto" under the Policy.
The parties have stipulated that Mr. Serino was the named insured in the Policy declarations; the only car listed in the declarations was owned by Mr. Serino; the automobile he was driving at the time of the accident belonged to his wife, with whom he resides, and was not listed in the Policy declarations. Safeco denied coverage of Diana Serino's injuries and declined to defend or indemnify Joseph Serino because the subject accident did not arise from the use of a " covered auto" citing Exclusion B.2.a in the Policy. The Policy defines " you" and " your" as the " named insured" shown in the declarations and " [t]he spouse if a resident of the same household . . ." Exclusion B.2.a to the Policy states " [w]e do not provide Liability Coverage for the . . . use of: . . . [a]ny vehicle, other than your covered auto, which is: a. owned by you; or b. furnished or available for your regular use."
The Serinos argue that the policy is ambiguous because the same fact situation that would exclude coverage under Exclusion B.2.a would fall within an exception under Exclusion B.3.b, which provides that coverage would be available for an insured occupying a vehicle owned by a " family member." The policy defines " family member" to mean " a person related to you by . . . marriage . . ." Thus, the Serinos contend, Diana Serino was a family member of her husband and therefore there should be coverage for his use of the family car while he is occupying his wife's vehicle.
Safeco's counter-argument is that it declined coverage under Exclusion B.2.a, which does not include such an exception, not the family car Exclusion B.3. Safeco argues that the exclusions in B.2 and B.3 are not inconsistent, serve different purposes and thus do not create any ambiguity in coverage.
In Anastasia v. General Cas. Co. of Wisconsin, 307 Conn. 706, 711-12, 59 A.3d 207 (2013), the Supreme Court discussed the generally accepted rules for interpretation of an insurance policy:
Interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . Unlike certain other contracts, however, where absent statutory warranty or definitive contract language the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law for the court which this court reviews de novo . . . 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. (Citations omitted.)
In National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 88-89, 961 A.2d 387 (2009), the Supreme Court set standards for determining ambiguity in insurance policies:
An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract . . . In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . Under those circumstances, the policy is to be given effect according to its terms . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result . . .
In determining whether the terms of an insurance policy are clear and unambiguous, [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 . . . Under those circumstances, 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.
The Serinos argue that the Exclusions B.2 and B.3 must be read together and import ambiguity into the policy. They contend, if ambiguous, an insurance policy must be construed against the insurer as drafter. See Metropolitan Life Ins. Co. v. Aetna Cas. & Surety Co., 255 Conn. 295, 305, 765 A.2d 891 (2001); Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 199, 901 A.2d 666 (2006). The Serinos urge the Court to follow the holding of the Indiana Court of Appeals in Barclay v. State Auto Ins. Co., 816 N.E.2d 973, 979 (In.App.Ct. 2004), which found ambiguity by reading the exclusions B.2 and B.3 together. In Barclay the Indiana Court of Appeals held there was coverage for a wife under her policy for an accident that occurred while driving her husband's car: " '[h]ere, Kimberly was 'occupying' a vehicle which was owned by a 'family member, ' i.e. Kenneth. As a consequence, under the circumstances of this case, the Policy exclusion of liability coverage for the use of Kenneth's automobile under B.3 of Kimberly's Policy is subject to the exception that the exclusion of liability coverage does not apply to Kimberly while she was occupying Kenneth's automobile. Because the exception to the exclusion B.3 applies, the Policy provides coverage to Kimberly for the collision. Consequently, the trial court erred by granting State Auto's motion for summary judgment."
Courts of other states have declined to follow Barclay . In MacLearn v. Commerce Ins. Co., 163 N.H. 241, 245, 37 A.3d 393 (2012), the New Hampshire Supreme Court declined to follow Barclay and held that the named insured's wife was not covered by her husband's policy under Exclusion B.2. The Court of Appeals of New Mexico in Sheldon v. Hartford Ins. Co., 2008- NMCA 098, 144 N.M. 562, 566, 189 P.3d 695 (2008), relying on decisions in five other states, similarly declined to follow Barclay and applied the " owned vehicle" exclusion under B.2 and excluded liability coverage for an accident that occurred when the named insured was driving a vehicle owned by his wife.
The Sheldon Court observed:" [o]ther states are generally in accord with this construction of the meaning of " you" and " your" in the context of the same exclusion and policy definitions. In Hacker v. Dickman, 75 Ohio St.3d 118, 1996 Ohio 98, 661 N.E.2d 1005, 1006[, 1007 (1996)] . . . the Ohio Supreme Court held that the unambiguous language of the " owned vehicle" exclusion excluded coverage for the wife's liability arising from the use of a vehicle not declared in her policy, but which was owned by her husband. The court held that the definition of " you" included the insured's spouse as well as the insured, and " [i]nasmuch as one of the alternatives of the definition of 'you' avails to implicate the exclusion, coverage is not provided for this incident for [the wife]." Id. Similar results have been reached by the courts of Indiana, Louisiana, Michigan, New York, and Washington. See Farber v. Great Am. Ins. Co., 406 F.2d 1228, 1232 (7th Cir. 1969); Hillman v. Grace, 498 So.2d 1108, 1110 (La.Ct.App. 1986); Garrison v. Farm Bureau Mut. Ins. Co., 84 Mich.App. 734, 270 N.W.2d 678, 679 (1978); August v. N.Y. Cent. Mut. Fire Ins. Co., 98 N.Y.2d 632, 745 N.Y.S.2d 751, 772 N.E.2d 1109, 1110 (2002) (mem.); Schelinski v. Midwest Mut. Ins. Co., 71 Wash.App. 783, 863 P.2d 564, 568 (1993). But see Barclay v. State Auto Ins. Cos., 816 N.E.2d 973, 977 (Ind.Ct.App.2004) (holding that the terms " you" and " your" in one spouse's personal automobile policy referred to the spouses individually, but when the term " you" referred to one spouse, it necessarily did not refer to the other, and when " you" referred to the wife, it did not refer to the husband). Other states are generally in accord with this construction of the meaning of " you" and " your" in the context of the same exclusion and policy definitions. In Hacker, 661 N.E.2d at 1007, the Ohio Supreme Court held that the unambiguous language of the " owned vehicle" exclusion excluded coverage for the wife's liability arising from the use of a vehicle not declared in her policy, but which was owned by her husband. The court held that the definition of " you" included the insured's spouse as well as the insured, and " [i]nasmuch as one of the alternatives of the definition of 'you' avails to implicate the exclusion, coverage is not provided for this incident for [the wife]." Id. Similar results have been reached by the courts of Indiana, Louisiana, Michigan, New York, and Washington. See Farber v. Great Am. Ins. Co., 406 F.2d 1228, 1232 (7th Cir. 1969); Hillman v. Grace, 498 So.2d 1108, 1110 (La.Ct.App. 1986); Garrison v. Farm Bureau Mut. Ins. Co., 84 Mich.App. 734, 270 N.W.2d 678, 679 (1978); August v. N.Y. Cent. Mut. Fire Ins. Co., 98 N.Y.2d 632, 745 N.Y.S.2d 751, 772 N.E.2d 1109, 1110 (2002) (mem.); Schelinski v. Midwest Mut. Ins. Co., 71 Wash.App. 783, 863 P.2d 564, 568 (1993). But see Barclay v. State Auto Ins. Cos., 816 N.E.2d 973, 977 (Ind.Ct.App. 2004) (holding that the terms " you" and " your" in one spouse's personal automobile policy referred to the spouses individually, but when the term " you" referred to one spouse, it necessarily did not refer to the other, and when " you" referred to the wife, it did not refer to the husband)." Sheldon, 144 N.M. at 566-67. See also Owens v. Chance, 123 N.C.App. 523, 525, 473 S.E.2d 34 (1996); Sunshine Ins. Co. v. Sprung, 452 N.W.2d 782 (S.Ct. S.D. 1990); Hillman v. Grace, 498 So.2d 1108 (C.A. La. 1986).
The policy exclusions are not inconsistent if the term " family member" in the exception to Exclusion B.3, i.e. those related by marriage, is not defined broadly to include a spouse who resides with the insured as defined by " you" and " yours" applicable to the clear language of Exception B.2. A lay person reading the plain language of Exception B.2 would understand that the insured better include in the declarations an automobile owned by a resident spouse if the insured wanted coverage for that vehicle. It would not be logical to interpret B.3's exclusion for cars of " family members" as creating an exception to exclusion that is contrary to the plain language of Exclusion B.2. The limitation of coverage to automobiles listed in the policy owned by a resident spouse protects the insurer from unaccepted risk and ensures accurate premiums. See Sheldon, 144 N.M. at 566-67. The lay person would understand the exception to Exclusion B.3 did not apply to Exclusion B.2. The " family car" exemption in B.3 deals with a different coverage issue and was not intended to override the " covered auto" Exclusion B.2. That exclusion was applicable in the circumstances here where the automobile was owned by the resident spouse of the insured, who was included in the definition of " you" and " your, " and therefore was expressly excluded from coverage. Compare, LaChance v. Hartford A& I Co., 1991 WL 39897 *3 (Conn.Super. 1991) (O'Connor, J.) [3 Conn.L.Rptr. 777, ] (exclusion and exception to B.3 not ambiguous). Moreover, even if B.3 were determined to be ambiguous, it would not invalidate the " covered auto" exclusion in Exclusion B.2, which is not ambiguous given the definitions of " you" and " your" and because it was Exclusion B.2 on which Safeco relied in denying coverage. See MacLearn, 163 N.H. at 246.
The interpretation of the exclusion to the policy advanced by Safeco does not violate public policy. The " owned vehicle" exclusion under Exclusion B.2.b is similar to Exclusion B.2.a, which was upheld by Judge Radcliffe in Amica Mut. Ins. Co. v. Given, 2013 WL 227849 *3 (Conn.Super. 2013) (Radcliffe, J.). Other Connecticut courts have upheld liability coverage limitations to vehicles not listed in the policy declarations. See Smith v. Nationwide Mut. Ins. Co., 214 Conn. 734, 737, 573 A.2d 740 (1990); Bonilla v. Amica Mut. Ins., 2011 WL 4347788 *4-5 (Conn.Super. 2011) (Robaina, J.). The two cases cited by the Serinos, American States Ins. Co. v. Allstate Ins. Co., 282 Conn. 454, 475, 922 A.2d 1043 (2007) and Dairyland Ins. Co. v. Mitchell, 320 Conn. 205, 213-14, 128 A.3d 931 (2016), relied on the public policy expressed in C.G.S. § 38a-335(d), not applicable here.
Conclusion
The Court declares that the subject vehicle was not a " covered auto" under the Safeco automobile liability policy and thus there was no coverage under the Policy for this accident.