Opinion
No. CV04-0410456S
March 5, 2007
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #159 210
The plaintiff, Banerjee, has filed this action against the defendants John F. Foster, Jr., Webster Insurance ("Webster") and the Encompass Insurance Company of America ("Encompass"), which was formerly known as CNA Personal Insurance. The underlying action is a claim for personal injuries allegedly resulting from a motor vehicle accident occurring on or about October 26, 2002 when the plaintiff's vehicle was involved in a collision with the defendant Foster's vehicle. Counts One and Two involve allegations of recklessness and negligence as to Foster. Count Three as to Encompass is a claim for underinsured motorist coverage. Count Four is a claim of negligence as to the defendant Encompass. The defendant Webster is alleged to have been the insurance agent for the plaintiff. The allegations in Counts Three and Four involve disputed claims regarding the amount of policy benefits contained in the plaintiff's uninsured and undersinsured portions of his policy with Encompass, which the plaintiff in 1982, procured through Webster, which was known as Damman Insurance Associates at the time.
The amended complaint also contains a Fifth Count alleging negligence against Webster and a Sixth Count against Webster alleging a breach of fiduciary duty.
The complaint has recently been amended by way of an Amended Complaint dated October 19, 2006. The court granted the Request to File an Amended Complaint on January 2, 2007. The Amended Complaint contains four counts, as did the original complaint. The parties have agreed that the motions for summary judgment filed prior to the granting of the amended complaint, as well as any objections filed on prior dates are applicable to the amended complaint, as are any objections directed to the motions filed subsequent to the granting of the amended complaint.
The plaintiff's motion for summary judgment dated March 6, 2006 (#159) is directed to the First Special Defense filed by the defendant Encompass. In the First Special Defense, Encompass alleges that the plaintiff's damages are limited by the terms and conditions of the policy issued by the defendant to the plaintiff, including but not limited to the uninsured/undersinsured motorist limits contained in the policy. Plaintiff claims that this special defense in barred by General Statutes § 38a-336(a)(2).
Sec. 38a-336(a)(2) reads as follows:
(a)(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and 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. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which 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."
The plaintiff has filed an additional Motion for Summary Judgment (#210) dated December 7, 2006 requesting that the court grant summary judgment on the Third and Fourth Counts of the amended complaint regarding the plaintiff's claim for underinsured motorist benefits and negligence as to Encompass. The plaintiff claims that there is no genuine issue of fact that Encompass violated General Statutes § 38a-336(a)(2) by failing to obtain from the plaintiff the statutorily-mandated written request or informed consent form containing the specific information and text required by the statutes in order to provide uninsured/underinsured motorist coverage to the plaintiff in an amount less than the bodily injury coverage.
The defendant encompass has objected to both motions for summary judgment. The court will discuss each motion and will issue this one memorandum of decision covering the arguments and issues of the respective parties.
I Standard of Law
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
II
CT Page 3637
Motion for Summary Judgment #159 (Dated March 6, 2006)
The plaintiff has moved for summary judgment on the First Special Defense of Encompass. Although there is no Connecticut appellate authority, "[t]he decisions of the Connecticut Superior Court are almost in unanimous agreement that a motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses." Sound Post v. New Harvest Coffee Roasters, No. BRSP 056336, Superior Court, judicial district of Fairfield at Bridgeport (May 6, 2005, Skolnick, J.), quoting, Verderame v. Anderson Sunnyside Farm, Superior Court, judicial district of New Haven, Docket No. CV97 040663 8 (May 1, 2003, Arnold, J.); see also Duborg v. Osborn, Superior Court, judicial district of Litchfield, Docket No. 06570 (July 5, 1995, Pickett, J.); Bond v. General Accident Insurance Company, Superior Court, judicial district of New London, No. 538646 (Sept. 4, 1998, Handy, J.) 1998 Ct.Sup. 10273, 23 Conn.L.Rptr. 181.Even if the special defense was to fail, however, the plaintiffs' motion and supporting documents do not remove from dispute, facts relevant to determining whether they are entitled to judgment as a matter of law on the counts pertaining to Encompass, as the material allegations have been denied. "Where a motion for summary judgment shows that there are no facts in dispute with respect not only to the special defenses but also the underlying complaint, summary judgment may be appropriate. Most Superior Court judges who have considered the issue, however, have concluded that a motion for summary judgment solely as to special defenses is procedurally improper." Eckhouse v. McCarver, No. CV 04-0084495, Superior Court, judicial district of Tolland at Rockville (May 26, 2005, Scholl, J.); Verderame v. Anderson Sunnyside Farm, supra, Superior Court, judicial district of New Haven, Docket No. CV97 0406638 (May 1, 2003, Arnold, S.); Smith v. National Grange Mutual Ins. Co., No. CV95-0250908S, Superior Court, judicial district of New Haven at Meriden (August 29, 1996, Silbert, J.) 17 Conn.L.Rptr. 522; see also, Bycoski v. Gagne, Superior Court, judicial district of Tolland, at Rockville, Docket No. 52555 (August 18, 1994, Hammer; J.) 12 Conn.L.Rptr. 433; Ney v. Branch, Superior Court, judicial district of New Haven at New Haven, Docket No. 0368932 (September 27, 1995, Hodgson, J.).
The March 6, 2006 Motion for Summary Judgment is addressed solely to the First Special Defense and not as to the absence of genuine issues of material facts in the counts against Encompass in the original or the amended complaint. The plaintiff by way of a separate Motion for Summary Judgment dated December 7, 2006 has claimed there is no genuine issue of material fact relating to a violation of General Statutes § 38a-336(a)(2) and thus summary judgment as against Encompass should be rendered on Counts Three and Four. The court will discuss the December 7, 2006 motion for summary judgment in the following section of this opinion. However, as the plaintiff's Motion for Summary Judgment dated March 6, 2006, as to the First Special Defense of Encompass, is procedurally defective, that motion is denied.
Accordingly, for the reasons set forth herein, the Motion for Summary Judgment (#159) dated March 6, 2006, is hereby denied.
III Motion for Summary Judgment #210 Dated December 7, 2006
In this motion for summary judgment as to the Third and Fourth Counts of the Amended Complaint, the plaintiff alleges there is no genuine issue of material fact that Encompass did not obtain the statutorily-mandated written request or informed consent form signed by the plaintiff as provided in General Statutes § 38a-336(a)(2). General Statutes 38a-336(a)(2) provides that "each automobile liability insurance policy issued or renewed on and 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." Section 38a-336(a)(2) also provides that "[s]uch written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which 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 . . ." Further General Statutes 38a-336(a)(2) sets forth language for the advisement to an insured and even sets forth that a heading in twelve-point type be included.
The plaintiff claims that he is entitled to $500,000 of underinsured motorist coverage. Plaintiff's automobile policy states that he has $100,000 in underinsured motorist coverage. The plaintiff claims that his underinsured motorist coverage should be equal to his liability coverage which was $500,000 at the time of the accident. The plaintiff has alleged that he never signed a consent form to lower his underinsured motorist coverage pursuant to General Statutes § 38a-36(a)(2). The defendant claims that whether the plaintiff signed the proper consent form is a genuine issue of material fact.
There is no dispute that at the time of the accident and for a period of time prior thereto, the plaintiff had an automobile insurance policy issued to him by Encompass. The subject policy had stated uninsured/underinsured limits of $100,000 and also had stated limits for liability coverage of $500,000. The plaintiff's policy was renewed on an annual basis and was renewed approximately eight times after January 1, 1994 and before this accident on October 26, 2002.
On October 26, 2002, the date of the accident, the policy was Policy No. 207107827.
The plaintiff claims that after January 1, 1994, the date specified in General Statutes § 38a-336(a)(2) after which every automobile liability policy must conform to the statute's requirements, the plaintiff never signed an informed consent form requesting uninsured/underinsured motorist coverage with limits for bodily injury in an amount less than those purchased to protect against loss resulting from his own liability. Encompass, in response to the plaintiff's Requests to Admit, admits that it cannot find a consent form signed by the plaintiff and further, that, to date, has no such form in its possession. Encompass has produced only a copy of an old form for the selection of uninsured motorist coverage that is signed by the plaintiff in 1992, containing an election of uninsured motorist coverage with a $100,000 limit. The 1992 form does not conform with form requirements or the warning language mandated by Section 38a-336(a)(2). The 1992 form references only uninsured motorist coverage and not underinsured motorist coverage.
The Encompass argues that the plaintiff was aware of his $100,000 underinsured motorist coverage through statements of policy coverages mailed to him by Encompass, and that the plaintiff never contacted Encompass or his agent to increase his uninsured/underinsured motorist coverage. Encompass additionally argues that the plaintiff was also aware that he was paying a lower premium, which was of great importance to the plaintiff. In effect, Encompass attempts to shift the blame and burden of statutory compliance to the plaintiff. General Statutes § 38a-336(a)(2) clearly indicates that it is the responsibility of the insurer to obtain the consent form, and even if an insured requests a lesser amount of coverage, the lesser amount would not become effective "unless any named insured has signed an informed consent form" containing the information set forth in the statute. General Statutes § 38a-336(a)(2).
"To implement [the public policy embodied in the uninsured motorist statute], we have held repeatedly that an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as [ § 38a-334-6] of the Regulations of Connecticut State Agencies expressly authorizes." (Internal quotation marks omitted.) Gormbard v. Zurich Insurance Company, 279 Conn. 808, 817 (2006), quoting, Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 377, 593 A.2d 498 (1991).
General Statutes § 1-2z the "Plain meaning rule" reads as follows:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
In McDonald v. National Union Fire Ins. Co. Of Pittsburgh, PA, 79 Conn.App. 800, 807, 831 A.2d 310, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003), the Appellate Court concluded that "[t]he purpose of § 38a-336(a)(2), including the provision requiring that insurers inform consumers of the premium cost for each of the underinsured [motorist] coverage options available, is to facilitate consumers' decision-making process and to ensure that they give informed consent to reduced coverage." Id.
While the defendant Encompass has claimed that it has "insufficient knowledge" as to whether a form exists that complies with the provisions of Section 38a-336(a)(2), or that it does have such a form, Encompass admits that it cannot find one. Encompass argues that despite its replies and admission, a genuine issue of material fact exists as to whether or not the plaintiff signed a consent form that complies with § 38a-336(a)(2). The court disagrees.
The failure to produce an informed consent form, signed by the plaintiff and the statement that it cannot swear that one does not exist, is not the "concrete evidence" required to create a genuine issue of material fact. Dion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).
"The party opposing a motion for summary judgment "must present evidence that demonstrates the existence of some disputed factual issue . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Citations omitted; internal quotation marks omitted.) The opposing party to a motion for summary judgment "must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence."
(Internal citations omitted; internal quotation marks omitted.) Id.
The consent form signed by the plaintiff in 1992, prior to January 1, 1994, electing $100,000 uninsured motorist coverage does not comply with the provisions of General Statutes 38a-336(a)(2), and is not, as the defendant Encompass argues, evidence that the plaintiff wished to maintain this lower amount of coverage after January 1, 1994, the date when the newer consent form became effective. The court agrees with the plaintiff that had the legislature intended prior consent forms to apply to subsequent contracts of insurance, such intent would have been expressly stated in the language of Section 38a-336(a)(2). "We are entitled to presume that if the legislature intended that past acts could constitute compliance with the mandate of requests for a lesser amount pursuant to the statute, language to that effect would appear in the statute. `[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent.'" Traveler's Indemnity Co. v. Malec, 215 Conn. 399, 404, 576 A.2d 485 (1990)." see also, General Statutes § 1-2z.
Traveler's Indemnity Co. v. Malec, 215 Conn. 399 dealt with the predecessor to § 38-336(a)(2).
As Encompass is unable to produce a signed informed consent form in compliance with the mandates of § 38a-336(a)(2), there is no genuine issue of material fact that when Encompass renewed the plaintiff's contract of insurance on dates after January 1, 1994, it was in violation of General statutes § 38a-336(a)(2). It is undisputed that when the plaintiff was allegedly injured on October 26, 2002, his uninsured/underinsured policy coverage limits were not equivalent to his liability coverage, as required by § 38a-336(a)(2).
Count Three of the amended complaint alleges that the plaintiff's injuries and losses are the "legal responsibility of the defendant Encompass pursuant to the terms of the said contract of insurance with Kamalesh Banerjee and in accordance with Section 38a-336 of the Connecticut General Statutes." Count Four alleging negligence the of Encompass, claims that the plaintiff should be able to recover underinsured motorist coverage up to "an amount equal to twice his liability coverage in excess of any amount paid or on behalf of the tortfeasor . . ." The court agrees. By violating § 38a-336(a)(2), Encompass did not provide the plaintiff, its insured, the information necessary for the plaintiff to make a knowledgeable and informed decision regarding the limits of his uninsured/underinsured motorist coverage. By violating the statute the defendant cannot now claim that the plaintiff's coverage is $100,000, which is less than his liability coverage in the amount of $500,000. Pursuant to General Statutes § 38a-336(a)(1) the plaintiff had a right to elect uninsured and underinsured motorist coverage in a maximum amount of "twice the limits of the bodily injury overage of the policy issued to the named insured." General Statutes § 38a-336(a)(1). The plaintiff was deprived of this right to purchase benefits equal to or exceeding his bodily injury coverage because the defendant Encompass never made this information available to the plaintiff. The informed consent form required by § 38a-336(a)(2) not only gives an insured the information necessary to make a decision to purchase uninsured/underinsured motorist benefits in an amount that is less than the bodily injury coverage stated in the policy, but it deprives the insured of the information necessary for the insured to determine if he wishes to purchase covergage in an amount that may be twice the limits of the bodily injury coverage. See § 38a-336(a)(2)(A)(B)(C). Encompass must provide uninsured/underinsured motorist coverage o the plaintiff with limits that are twice the limits of the bodily injury coverage of the policy issued to the named insured.
Sec. 38a-336(a)(1) reads in pertinent part as follows:
(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, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage with limits requested by any named insured upon payment of the appropriate premium, provided each such insurer shall offer such coverage with limits that are twice the limits of the bodily injury coverage of the policy issued to the named insured. The insured's selection of uninsured and underinsured motorist coverage shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured . . .
General Statutes 38a-336(a)(2)(A)(B)(C) provide that the insurer give the following information to the insured:
"(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 . . ."
Summary judgment as to liability is granted as to Counts Three and Four. The defendant's liability is subject to the underinsured motorist coverage limits set forth in General Statutes 38a-336; the plaintiff's proof of damages; and any amount paid by or on behalf of the tortfeasor.