Opinion
CV156057427S
05-23-2017
Raymond Acosta v. Western Express, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#106)
Robin L. Wilson, J.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Raymond Acosta, filed a one-count complaint on September 28, 2015, against the defendant, Western Express, Inc., for underinsured motorist benefits arising out of a motor vehicle accident that occurred on March 13, 2011. In his complaint, the plaintiff alleges the following facts. On March 13, 2011, the plaintiff was operating a tractor trailer owned and/or leased by the defendant northbound on Interstate-91 in North Haven, Connecticut. The plaintiff was cut off by another vehicle operated by Samuel Marion, the tortfeasor, causing the plaintiff to swerve and strike another vehicle and the guardrail. The plaintiff suffered serious and painful personal injuries as a result of the tortfeasor's negligence and carelessness. The tortfeasor's insurance policy was inadequate to compensate the plaintiff for his injuries and losses. At all times, the defendant was self-insured and obligated to provide underinsured motorist benefits per General Statutes § 38a-336 and, therefore, the defendant is legally obligated to compensate the plaintiff for his injuries and losses.
Samuel Marion a/k/a Marion Samuel (tortfeasor) is not a party to this present action.
General Statutes § 38a-336 provides in relevant part: " (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 . . . (2) [E]ach automobile liability insurance policy . . . 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. Such informed consent form shall contain a heading in twelve-point type and shall state: 'WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER . . . (b) An insurance company shall be obligated to make payments to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage . . . (e) For purposes of this section, an 'underinsured motor vehicle' means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy . . . (f) [A]n employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured's otherwise applicable uninsured and underinsured motorist coverage."
On April 20, 2016, the defendant filed an answer and two special defenses and/or set-offs: (1) that the tractor trailer the plaintiff was operating was not covered under any policy that provided uninsured or underinsured motorist benefits, and (2) that to the extent the tractor trailer is covered by such a policy, the defendant seeks a reduction/set-off of the amount the plaintiff has received in workers' compensation benefits and from the tortfeasor. On July 1, 2016, the defendant filed a motion for summary judgment, along with a supporting memorandum of law, and exhibits, on the grounds that: (1) the alleged tortfeasor was not an underinsured motorist and, therefore, there is no valid claim for underinsured motorist benefits as a matter of law; (2) even if the tortfeasor was underinsured, the monetary cap imposed by § 38a-336(b) would bar any additional recovery; and (3) the plaintiff's complaint is legally insufficient.
The plaintiff filed an objection to the defendant's motion for summary judgment on September 21, 2016, arguing that: (1) the deletion of underinsured motorist benefits in the defendant's insurance policy violates Connecticut's public policy that all motor vehicles operating on Connecticut roadways must have underinsured motorist coverage; (2) the defendant did not execute the form mandated by § 38a-336(a)(2) and, therefore, did not properly reduce the required underinsured motorist coverage; (3) the defendant's underinsured motorist policy limits have not been depleted; and (4) the complaint is legally sufficient as a matter of law. The defendant then filed a reply memorandum on October 28, 2016. This court, Wilson, J., first heard oral argument on these motions on January 3, 2017, at which time supplemental briefing was requested on the applicability of Connecticut's minimum coverage requirements to vehicles registered or principally garaged out-of-state as well as the legislative history of the applicable statutes. Supplemental memoranda were filed by the defendant on January 17, 2017, and by the plaintiff on January 24, 2017. This court, Wilson, J., again heard argument at short calendar on January 30, 2017.
DISCUSSION
Practice Book § 17-49 provides in relevant part 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." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015).
" 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving 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]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
I
The plaintiff, as an employee of the defendant, can generally recover underinsured motorist benefits under the defendant's policy if there is such coverage, and the plaintiff has a valid underinsured motorist claim. See § 38a-336(f). The court must first determine whether as a matter of law the defendant is required to provide the minimum underinsured motorist coverage required by § 38a-336, when its Tennessee insurance policy does not appear to provide or require any such coverage. The defendant originally argued in its motion for summary judgment that all vehicles that operate in Connecticut, including out-of-state vehicles, must provide the minimum levels of underinsured motorist coverage as required by statute; § 38a-336(a)(1); Def.'s Mot. Summ. J., p. 13; Def.'s Reply Mem., p. 2; and conceded that its policy therefore provides the minimum level of underinsured motorist coverage imposed by statute. For unknown reasons, the defendant has now changed its position as set forth in its supplemental memorandum of law; Def.'s Suppl. Mem., pp. 2-3; and argues that it is not required to maintain the minimum underinsured motorist coverage prescribed by law because Connecticut's minimum coverage requirements only apply to vehicles that are registered or principally garaged in this state. See General Statutes § § 38a-334, 38a-335, 38a-336. The plaintiff argues that it violates Connecticut law and public policy to operate a motor vehicle in Connecticut with no underinsured motorist coverage and, thus, because the defendant deleted such coverage from its insurance policy, the default underinsured motorist coverage available is $900,000.
General Statutes § 38a-334(a) provides in relevant part: " The Insurance Commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies . . . covering private passenger motor vehicles . . . [and] motor vehicles with a commercial registration . . . registered or principally garaged in this state."
General Statutes § 38a-335(a) provides in relevant part: " Each automobile liability insurance policy shall provide insurance in accordance with the regulations adopted purusant to section 38a-334 against loss resulting from the liability imposed by law, with limits not less than those specified in subsection (a) of section 14-112 . . ."
This court agrees with the plaintiff's position and rejects the defendant's current position on the issue of public policy. Although our Supreme and Appellate Courts have held that Connecticut's election and/or notice requirements will not be applied to reform out-of-state insurance policies, our appellate courts have never held that out-of-state vehicles can use our roadways and highways with absolutely no underinsured motorist coverage. See American States Ins. Co. v. Allstate Ins. Co., 282 Conn. 454, 475-76, 922 A.2d 1043 (2007) (holding that household exclusion in insurance policy purchased and issued in Florida need not conform to § 38a-335(d), which requires notice and acceptance by insured of such exclusions); Glens Falls Ins. Co. v. Sybalsky, 46 Conn.App. 313, 319-20, 699 A.2d 258, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997) (holding that insureds who executed policy in New York for vehicle registered and principally garaged in New York were not required to make written request for lower amount of underinsured motorist coverage). For this court to reach such a conclusion here would be contrary to our public policy and the purpose of our mandatory underinsured motorist insurance requirements. See Garcia v. Bridgeport, 306 Conn. 340, 363, 51 A.3d 1089 (2012) (" the essential concern of our motor vehicle liability insurance scheme is guaranteeing minimum coverage for personal injury and property damage resulting from automobile accidents" [emphasis in original; internal quotation marks omitted]); Orkney v. Hanover Ins. Co., 248 Conn. 195, 204-05, 727 A.2d 700 (1999) (" [t]he public policy established by the [under]insured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the [under]insured motorist had maintained [an adequate] policy of liability insurance" [internal quotation marks omitted]). Accordingly, as discussed below, the defendant's insurance policy must be deemed to provide at least the minimum underinsured motorist coverage required by Connecticut statutes as a matter of law. See General Statutes § 14-112(a), § 38a-336(a)(1).
The defendant relies on various Superior Court decisions, as well as Glens Falls Ins. Co. v. Sybalsky, 46 Conn.App. 313, 318-20, 699 A.2d 258, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997), to support its position that Connecticut's minimum underinsured motorist coverage requirements do not apply to out-of-state vehicles. First, this court notes that it is not bound by other trial court decisions and, therefore, does not find those decisions persuasive. Second, it is this court's opinion that the defendant's interpretation of Glens Falls is erroneous. The Appellate Court in that case did not, as the defendant contends, hold that out-of-state vehicles were not required to maintain the statutory minimum underinsured motorist coverage. Rather, the court found that the plaintiffs were not entitled to underinsured motorist coverage equal to their liability insurance benefits because they had not made a written request, pursuant to § 38a-336, as their insurance policy was executed in New York, and New York did not require a written request be issued for a lower amount of coverage. See Glens Falls Ins. Co. v. Sybalsky, supra, 320. The Appellate Court held that Connecticut's requirement that an insured elect in writing that their underinsured motorist coverage be less than their liability benefits did not apply to out-of-state vehicles and/or insurance policies. Id. Accordingly, Glens Falls does not support the defendant's position.
The court will next determine the amount of underinsured motorist coverage available under the defendant's insurance policy as a matter of law. The defendant originally argues that it elected in its insurance policy to not have underinsured motorist coverage as allowed by Tennessee law; Tenn. Code Ann. § 56-7-1201; and thus, even if it has to comply with Connecticut's underinsured motorist coverage requirements, the minimum underinsured motorist coverage available would be $20,000 per person and $40,000 per occurrence. See Def's Mot. Summ. J., Exs. C & D. The defendant asserts that because it is both a self-insured entity and a company with a commercial fleet policy, and neither self-insured entities nor commercial fleet companies are required to conform with Connecticut's statutory notice requirements when electing lower underinsured motorist coverage; see § 38a-336(a)(2); then as a matter of law the defendant elected to maintain only the minimum underinsured motorist coverage as required by Connecticut statutes. The plaintiff contends that (1) the cases relied upon by the defendant are inapposite because the defendant's policy entirely deleted the underinsured motorist coverage and; (2) the defendant did not execute a written consent form required by § 38a-336(a)(2) to request a reduction in underinsured motorist coverage. Therefore, the plaintiff argues that the defendant cannot, as a matter of law, be considered to have elected the statutory minimum underinsured motorist coverage but, rather, must be deemed to provide underinsured motorist coverage equal to its bodily injury liability coverage.
The defendant attaches to its motion for summary judgment a copy of the plaintiff's response to the request for admissions (Ex. A); a copy of the interrogatories of the tortfeasor from a prior action that arose out of the car accident (Ex. B); a copy of its insurance policy, including the form electing to reject underinsured motorist coverage (Ex. C); and a form explaining the defendant's underinsured motorist coverage under the policy (Ex. D). Although exhibits B, C, and D are not certified, the plaintiff has not objected to their admission and, therefore, the court will consider them in ruling on the motion. See e.g., Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012); Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Furthermore, the insurance policy and underinsured motorist form explanation are again submitted as evidence in the defendant's reply memorandum to the plaintiff's objection by way of being attached to the signed and sworn affidavit of Ron Lowell (Lowell Affidavit), the defendant's general counsel.
A
Self-Insured
The defendant argues that it is a self-insured entity by virtue of a self-insured retention endorsement that amended the defendant's insurance policy with National Casualty Company, in that it will be self-insured up to $900,000. See Def.'s Mot. Summ. J., Ex. C. Additionally, the defendant specifically signed a form that rejected underinsured motorist coverage, but provided a different document indicating that it elected to self-insure for underinsured motorist coverage when such coverage was required. See Def.'s Mot. Summ. J., Exs. C & D. Therefore, the defendant asserts that as a matter of law, it must only provide Connecticut's minimum underinsured motorist coverage required because a self-insured entity is deemed to provide the statutory minimum unless otherwise specified. The plaintiff counters that because the defendant deleted underinsured motorist coverage entirely from its insurance policy, and did not execute the appropriate Connecticut form electing a lesser coverage amount, the defendant is to be treated, as a matter of law, as providing underinsured motorist coverage equal to $900,000, the limits of its bodily injury liability coverage.
Under Tennessee law; see Tenn. Code Ann. § 56-7-1202; Seymour v. Sierra, 98 S.W.3d 164, 166 (Tenn.App. 2002); uninsured coverage is considered to include underinsured coverage and, thus, is not referred to separately in the policy language. The use of only uninsured is a distinction without a difference for purposes of the insurance policy form and, therefore, although the defendant's policy states " uninsured, " it is understood by this court to also refer to " underinsured."
Section 38a-336 provides that each automobile liability insurance policy shall provide underinsured motorist coverage with limits not less than those specified in § 14-112(a). Section 14-112(a) requires minimum coverage of $20,000 per person and $40,000 per accident. " It is uncontested that this requirement applies to self-insurance." Garcia v. Bridgeport, supra, 306 Conn. 366. Nevertheless, our Supreme Court has held " that the legislative intent of absolute parity between liability coverage limits and [underinsured motorist] coverage . . . simply does not apply in the self-insurance context." (Citation omitted; internal quotation marks omitted.) Id., 358. Furthermore, it " has [been] determined that other requirements for insurers, if literally and inflexibly applied to self-insurers, would lead to absurd and unworkable results." Id., 360.
Section 38a-336(a)(2) provides in relevant part: " [e]ach automobile liability insurance policy . . . 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." A self-insurer, however, is not required to comply with this section because " applying [§ 38a-336(a)(2)] literally in the self-insurance context would be counterintuitive, because that provision is a notice provision requiring informed consent by the insured." (Internal quotation marks omitted.) Garcia v. Bridgeport, supra, 306 Conn. 367; see also Boynton v. New Haven, 63 Conn.App. 815, 829, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001) (" it would be an exercise in futility to require the city to file a written request to itself"). " [A] self-insurer is deemed to provide the minimum statutory underinsured motorist coverage of $20,000 per [person] and $40,000 per occurrence for the benefit of occupants of its private passenger motor vehicles. A self-insurer need not prove the existence of a document requesting the minimum statutory coverage limits." Garcia v. Bridgeport, supra, 371.
Moreover, in the present case, the fact that the defendant had a commercial policy with a self-insured retention endorsement does not necessarily preclude it from being considered a self-insured entity. See Serra v. West Haven, 77 Conn.App. 267, 273, 822 A.2d 1018 (2003). In Serra, the defendant city had a self-insured retention policy of $50,000 as well as an excess coverage policy with an insurance carrier. Id., 272. The court reviewed its holding in Boynton v. New Haven, supra, 63 Conn.App. 829, and determined that it was still applicable even though West Haven was not fully self-insured. Serra v. West Haven, supra, 273. In Boynton, the court rejected the plaintiff's argument that because the city had not defined the limits of its underinsured motorist coverage, the city must be deemed to provide unlimited underinsured motorist coverage. Boynton v. New Haven, supra, 826-27. The court in Boynton instead held that " [t]he applicability of the statutory minimum is reasonable because the exposure of commercial insurers is not unlimited . . . [S]elf-insurers are entitled to the same protection as is afforded to commercial insurers." Id., 827. The court in Serra concluded that this precedent applied, because " West Haven was no less a self-insurer than New Haven merely because it purchased excess coverage where, apparently, New Haven had not." Serra v. West Haven, supra, 273. The fact that West Haven was not fully self-insured and had a self-insured retention policy, like the defendant in the present case, similarly did not alter the presumption that a self-insured municipality elects the statutory minimum in the absence of a writing stating otherwise. See id.
Although Garcia, Serra, and Boynton concerned self-insured municipalities, this court's research did not reveal any law that provides a reason why these same principles would not apply to a commercial entity, such as the defendant. For the same reason it would make no sense to require a municipality that chooses to self-insure to send itself a written request to reduce underinsured motorist coverage, it would make no sense for a company to have to do the same. See Garcia v. Bridgeport, supra, 306 Conn. 371; Boynton v. New Haven, supra, 63 Conn.App. 828-29. Furthermore, like Serra, the defendant's $900,000 self-insured retention endorsement will not remove the presumption that it, as a self-insured entity, elected the statutory minimum amount of coverage in the absence of an indication to the contrary. See Serra v. West Haven, supra, 77 Conn.App. 272-73. Accordingly, as a self-insured entity, the defendant is presumed to maintain the statutory minimum underinsured motorist coverage, unless it elects a higher coverage amount as a matter of law.
The court notes that the plaintiff does not contest the defendant's status as a self-insured entity. The plaintiff, instead, argues that the cases dealing with self-insured municipalities do not apply because they did not involve a self-insured entity deleting underinsured motorist coverage in its entirety, as the defendant did here. The plaintiff provides no authority to explain why the deletion of coverage would render the cases inapplicable, nor does the plaintiff put forth evidence to establish that the defendant elected a higher coverage amount. Even if the plaintiff's argument has merit, that the defendant's cases are inapplicable because the defendant deleted underinsured motorist coverage from its insurance policy, the plaintiff fails to address the document maintained in the defendant's files, which demonstrates its intent to provide no more than $20,000 per person and $40,000 per accident in underinsured motorist coverage. See Def.'s Reply Mem., Lowell Aff. ¶ 7 & Ex. B. Although the policy deleted underinsured motorist coverage, this document indicates that the defendant elected to self-insure for underinsured motorist coverage with limits of $20,000 per person and $40,000 per accident in states where coverage was required by statute, and it did not have a commercial policy providing for such coverage. See Def.'s Mot. Summ. J., Ex. D; see also Def.'s Reply Mem., Lowell Aff. ¶ 7 & Ex. B. Therefore, there is no genuine issue of material fact that the defendant elected to maintain only the minimum statutory coverage required of $20,000 per person and $40,000 per accident and was not required to comply with Connecticut's form as a matter of law.
B
Commercial Fleet
The defendant also argues that it has a commercial fleet insurance policy; See Def.'s Mem. Summ. J., Ex. C; Def.'s Reply Mem., p. 2, Lowell Aff. ¶ ¶ 5-6 & Ex. A; and, therefore, it would be deemed to have elected the statutory minimum underinsured motorist coverage because commercial entities, such as trucking businesses with commercial fleet policies, are not required to conform to the election requirements of § 38a-336(a)(2). The plaintiff again contends that the defendant has not executed an appropriate written form pursuant to § 38a-336(a)(2) reducing its underinsured motorist coverage and, therefore, is required to provide underinsured motorist coverage equal to its liability coverage.
As previously discussed, § 38a-336(a)(2) allows an insured to request underinsured motorist coverage limits less than their liability insurance coverage, as long as those limits are not less than the minimum requirements specified in § 14-112(a). A written request will only be effective if a named insured signs an informed consent form that meets certain requirements. See General Statutes § 38a-336(a)(2). " [O]ne of the guiding principles underlying the requirement of a written rejection of higher limits is to assure that the rejection is the product of a purposeful and knowing decision . . . and that the request is an informed one." (Citation omitted; internal quotation marks omitted.) McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, 79 Conn.App. 800, 805, 831 A.2d 310, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003). In Frantz v. United States Fleet Leasing, Inc., 245 Conn. 727, 739, 714 A.2d 1222 (1998), our Supreme Court held that § 38a-336(a)(2) does not require the signatures of all insured parties in the commercial fleet context. The court reached that holding by reviewing the legislative history and determining that the purpose of § 38a-336(a)(2) was to ensure that consumers made informed and conscious choices when determining coverage and choosing whether to reduce uninsured and underinsured insurance coverage. Id., 737-38.
The Supreme Court stated that " the legislature did not intend to require the written consent of all named insureds on a commercial fleet policy as a necessary prerequisite to a reduction in coverage . . . Although a corporation like Fleet Leasing may be considered a `consumer' of insurance in the broadest sense of that word, we do not believe that a company that, like Fleet Leasing, is covered under a commercial fleet policy, falls within the class of consumers that the legislature sought to protect . . . Fleet Leasing, like many other large corporations covered under commercial fleet policies, has departments that specialize in legal and insurance matters. It is highly likely, therefore, that the Fleet Leasing personnel who negotiated the insurance provisions of the lease contract . . . were fully aware of the relative cost of uninsured motorist coverage and the implications of their decision . . ." Id., 738-39.
In McDonald v. National Union Fire Ins. Co. of Pittsburg, PA, supra, 79 Conn.App. 805, our Appellate Court agreed with the trial court's conclusion that " [s]trict adherence to the procedures mandated by § 38a-336(a)(2) in order to reduce [uninsured motorists-underinsured motorists] coverage simply is not required in the context of commercial fleet insurance." (Internal quotation marks omitted.) Relying on the reasoning in Frantz v. United States Fleet Leasing, Inc., supra, 245 Conn. 739, the Appellate Court stated: " We do not believe that a company such as Cumberland Farms, Inc., which insures a fleet of vehicles to carry on a large commercial enterprise, falls within the class of consumers that the legislature sought to protect when it mandated the disclosure of premium costs under § 38a-336(a)(2). Consequently, the fact that the informed consent form . . . did not contain a statement of premium costs does not defeat the election by Cumberland Farms, Inc., to reduce its underinsured motorist coverage limits to $20,000." McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, supra, 807.
In the present case, the defendant was covered by an insurance policy issued by National Casualty Company. As attested to by the defendant's general counsel, Ron Lowell, in his signed and sworn affidavit, the insurance policy covered the fleet of commercial tractor-trailers maintained by the defendant. See Def.'s Reply Mem., Lowell Aff. ¶ ¶ 5-6. As previously addressed, the defendant signed a form, pursuant to Tennessee law, electing to reject underinsured motorist coverage in its entirety. See Def.'s Mot. Summ. J., Ex. C. It is abundantly clear from a reading of Lowell's affidavit, the defendant's insurance policy, and the other documents presented by the defendant that the defendant intended to reduce its underinsured motorist coverage. In fact, as previously discussed, the defendant provided a form indicating that it would provide the minimum amount of underinsured motorist coverage in states that required such coverage in the amount of $20,000 per person and $40,000 per accident. See Def.'s Reply Mem., Lowell Aff. ¶ 7 & Ex. B.
Pursuant to Tennessee law, the defendant was permitted to completely opt out of underinsured motorist coverage; Tenn. Code Annotated § 56-7-1201; and it did; See Def.'s Mot. Summ. J., Ex. C; however, in Connecticut, an insured can only reduce its underinsured motorist coverage to the minimum amounts of $20,000/$40,000. Although the language of § § 38a-334 and 38a-336 apply to insurance policies written in, and to cars registered and/or principally garaged in, this state, as previously discussed in this opinion, it would offend Connecticut's public policy to allow a vehicle to operate on Connecticut roadways with absolutely no underinsured motorist coverage. See Orkney v. Hanover Ins. Co., supra, 248 Conn. 204-05. There is no genuine issue of material fact that the defendant's clear intent was to reduce its underinsured motorist coverage to the minimum statutory coverage. See McDonald v. Fire Ins. Co. of Pittsburgh, PA, supra, 79 Conn.App. 805; See Moncrease v. Sirius Am. Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-05-4015335-S, (November 7, 2007, Holden, J.) (finding that defendant's waiver of uninsured and underinsured motorist coverage in out-of-state insurance policy was valid election of lower limits, but that it was required to provide statutory minimum of $20,000 per person and $40,000 per accident).
The plaintiff counters that the form submitted by the defendant cannot support its position because (1) it does not conform to the requirements set forth in § 38a-336(a)(2), and (2) it completely deletes coverage, which is not permitted in Connecticut, and thus, cannot be viewed as an election of the statutory minimum. The plaintiff's first argument fails because § 38a-336(a)(2) does not apply to corporations, such as the defendant, that are covered by a commercial fleet policy. With regard to the second argument, the plaintiff provides no legal authority or analysis to explain or demonstrate how the defendant's election to delete its underinsured motorist coverage from its insurance policy, as permitted by Tennessee law, creates an obligation to now provide underinsured motorist benefits equal to its liability benefits in Connecticut. Our courts are not in the habit of reforming out-of-state insurance policies. See American States Ins. Co. v. Allstate Ins. Co., supra, 282 Conn. 475-76; Glens Falls Ins. Co. v. Sybalsky, supra, 320. Although Connecticut's public policy supports that the defendant be required to provide the statutory minimum underinsured motorist coverage required by Connecticut law, it does not support that the defendant be required to provide underinsured motorist coverage equal to its liability coverage merely because it elected to reduce its coverage to an amount allowed by Tennessee law that is less than that allowed by Connecticut law. The plaintiff submits no evidence to support its arguments or to raise a genuine issue of material fact regarding the evidence presented by the defendant.
Furthermore, notwithstanding the defendant's commercial fleet policy, the defendant's election of lower limits would not be required to conform to § 38a-336(a)(2) because it is an out-of-state policy. See Glens Falls Ins. Co. v. Sybalsky, supra, 46 Conn.App. 320 (" [w]e refuse to construe this statute as requiring out-of-state drivers to make a written election to request underinsured motorist coverage in an amount less than their policy's liability coverage").
Accordingly, as a matter of law, the defendant's insurance policy provides underinsured motorist coverage of $20,000 per person and $40,000 per accident. It is undisputed that the tortfeasor's insurance policy provided liability coverage of $25,000 per person and $50,000 per accident. See Def.'s Mot. Summ. J., Ex. B. Consequently, the tortfeasor was not underinsured; see § 38a-336(e); and the plaintiff cannot, as a matter of law, maintain an underinsured motorist claim. See Florestal v. Government Employees Ins. Co., 236 Conn. 299, 301, 673 A.2d 474 (1996). Accordingly, the defendant's motion for summary judgment is granted.
Even if the tortfeasor was underinsured, the plaintiff would not be entitled to further recovery as a matter of law because the defendant's insurance policy provided for a reduction in limits to the extent that damages have been paid or are payable under any workers' compensation law as permitted by § 38a-334-6(d)(1)(B) of the Regulations of Connecticut State Agencies. See Def.'s Reply Mem., Lowell Aff. ¶ 7 & Ex. B; see also Piersa v. Phoenix Ins. Co., 273 Conn. 519, 531, 871 A.2d 992 (2005) (" [T]here is no particular form that a self-insured entity must use in order to take advantage of the permitted reduction in limits. The required written document . . . may be as part of a written document that the self-insured entity maintains in its files"). It is undisputed that the plaintiff received workers' compensation benefits in excess of $20,000. See Def.'s Mot. Summ. J., Ex. A. In light of the fact that the amount of underinsured motorist benefits available under the defendant's policy was $20,000, the plaintiff would not be able, as a matter of law, to recover under the policy, because the policy limits would be completely reduced by the workers' compensation payment.
II
The defendant, in its motion for summary judgment, argues that the plaintiff's complaint is legally insufficient as a matter of law because he did not allege in his complaint that he was an employee of the defendant or that he was injured in the course of his employment. The use of a motion for summary judgment to challenge the legal sufficiency of a complaint is only " appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Emphasis added.) Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). In the present case, it is clear that the defect, the plaintiff's failure to allege that he was an employee injured in the course of his employment, could be easily cured by repleading. See id. This point, however, is now moot because the defendant's motion for summary judgment is granted.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted.