Opinion
No. 10 6010810S
August 29, 2011
CORRECTED MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
FACTS
This is a declaratory judgment action to determine the issue of insurance coverage for a claim of wrongful death arising from a motor vehicle accident. The underlying motor vehicle accident occurred when Diane Dindial's car struck Clarisa Cruz's (the decedent) car. The decedent sustained injuries in the accident that proved fatal. This action was commenced on May 11, 2010, when the plaintiff, Iris Bonilla, administrator for the estate of the decedent, served a summons and complaint on the defendants, Daniel Dindial, who is Diane Dindial's father, and Amica Mutual Insurance Company (Amica), the defendant's automobile insurance provider.
For purposes of clarity, the individual defendant, Daniel Dindial will be referred to as "the defendant" throughout this memorandum. Daniel Dindial and Amica will collectively be referred to as "the defendants." Daniel Dindial's daughter, Diane Dindial, and his wife, Jaiwanti Dindial, will be referred to by name.
In her complaint, the plaintiff alleges that at the time of incident between Diane Dindial and the decedent, the defendant had an automobile insurance policy with Amica that provided liability coverage for family members of the defendant's household. The plaintiff further alleges that, at the time of the incident, Diane Dindial was a "family member of the household of her parents," and that the defendant's policy with Amica should therefore provide coverage for the collision with the decedent. The plaintiff's complaint alleges a cause of action under General Statutes § 38a-321. The defendants have filed for summary judgment. The parties have submitted memoranda and presented argument.
General Statutes § 38a-321 provides: "Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment."
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[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).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"Issues of insurance coverage and contractual disputes are particularly appropriate for summary judgment because the meaning of the insurance contract presents questions of law unsuitable for jury resolution." Edelman v. Pacific Employers Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 93 0533463 (December 11, 1997, Aurigemma, J.) ( 21 Conn. L. Rptr. 107, 109), aff'd, 53 Conn.App. 54, 728 A.2d 531, cert. denied, 249 Conn. 918, 733 A.2d 229 (1999).
The defendants claim that they are entitled to summary judgment on two grounds: (1) the collision is not covered under the defendant's policy because, at the time of the collision, Diane Dindial was not a "family member" as that term is defined by the policy and the applicable case law, given that she was living with her boyfriend in the apartment that he was leasing, and (2) based on the plain terms of the defendant's policy with Amica, because Diane Dindial owned the vehicle that she was driving at the time of her collision with the decedent, the defendant's policy does not provide coverage for his daughter's collision with Cruz.
The plaintiff claims that the collision is covered under the defendant's Amica policy because (1) Diane Dindial was in fact a "family member" of the defendant at the time of the collision, and that, (2) because she was a "family member," and because General Statutes § 38-175c is "person oriented," thus the owned automobile exclusion from the defendant's automobile policy is void.
General Statutes § 38-175c was transferred to General Statutes § 38a-336 in 1991.
In support of their motion for summary judgment, the defendants submit a copy of the amended complaint in the underlying wrongful death lawsuit, the affidavit of Diane Dindial, the affidavit of the defendant and a copy of the defendant's Amica automobile insurance policy. In response, the plaintiff have submitted a copy of the defendant's policy, a copy of the stipulated judgment from the underlying case and the complaint. The plaintiff also submits copies of Diane Dindial, Jaiwanti Dindial and the defendant's depositions, as well as a copy of the front side of Diane Dindial's Connecticut driver's license.
Jaiwanti Dindial is Diane Dindial's mother and the defendant's wife.
"[C]onstruction of a contract of insurance presents a question of law for the court . . . 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." Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5-6, 942 A.2d 334 (2008).
I
As to the issue of whether coverage is not available because Diane Dindial was not a family member of her father's household, the following provisions of the policy are relevant. The policy provides that Amica "will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident . . ." The policy defines an insured as including "any family member for the ownership, maintenance or use of any auto or trailer." The policy defines a "family member" to be "a person related to [the named insured] by blood, marriage or adoption who is a resident of [the named insured's] household."
In regards to determining whether an individual is a resident of an insured's household, our Supreme Court "has recognized that a trier of fact must determine where an individual resides by analyzing the facts unique to each case . . . In undertaking this analysis, the trier of fact must consider a conglomeration of factors . . . These factors include: the intent of the individual; the frequency of contact between the individual and other household inhabitants; the frequency with which the individual spends time at the household; the maintenance of a separate residence for the individual; whether the individual is emotionally and financially capable of establishing and maintaining a residence independent of the household; the location of personal belongings; the location of and address used for personnel and business records; the address at which mail is received; and the address used for formal purposes such as voting, licenses, and income tax filings." (Citations omitted.) Remington v. Aetna Casualty and Surety Co., 240 Conn. 309, 314-15, 692 A.2d 399 (1997).
In the present case, an analysis of the factors suggested by Remington supports the argument that Diane Dindial was not a resident of the defendant's household. Here, it is undisputed that: (1) prior to the collision with Cruz, Diane Dindial had already asked the United States Postal Service to deliver her mail to the apartment that her boyfriend was leasing, (2) she had affixed a Connecticut Department of Motor Vehicles change of address sticker to the back of her license, which gave her address as her boyfriend's apartment and (3) she had moved, or was in the process of moving, all of her personal belongings from her parent's home to her boyfriend's apartment.
The plaintiff claims that Diane Dindial testified that she retained her parent's address "as her permanent legal address on her driver's license." The deposition transcript reveals that Diane Dindial was asked if she had a driver's license and then gave her license to the plaintiff's attorney so that he could "take a picture" of it. The plaintiff's attorney then marked the copy of her license as an exhibit. There was no mention about the change of address sticker that was purportedly affixed to the backside of her license.
While the plaintiff presented evidence that shows that Diane Dindial interacted with her parents at their home, this alone does not make her a resident of their home. In USAA Property and Casualty Insurance Company v. Williams, Superior Court, judicial district of Danbury, Docket No. CV 04 4000784 (December 29, 2006, Shaban, J.), a case involving a similar insurance policy, one which provided coverage to "relatives [of the named insured] who are residents of [the named insured's] household," the court was faced with a similar factual scenario. There, the insured's son had been renting a cottage near his parent's home for two years before he was involved in an automobile accident. The question before the court was whether the insured's policy provided coverage to the insured's son for damages stemming from the son's involvement in the underlying automobile accident.
Applying the factors from Remington, the court concluded that the insured's son resided at the cottage that he rented at the time of the collision and was thus not a resident of the insured's household. The court noted, in part, that the son intended to live in his cottage; that although the son had a "good deal" of contact with his parents, the "frequency of contact and the purpose for which it was done was not sufficient to find that he remained a resident of his parents' household."
This court therefore concludes that Diane Dindial was not a resident of the defendant's household at the time of her collision with Cruz. Accordingly, the defendant's automobile insurance policy does not provide coverage for that collision.
II
The defendants also move for summary judgment on the ground that Diane Dindial was operating a vehicle that she owned and which was not insured under the defendant's Amica policy at the time of her collision with Cruz. The defendants argue that the plain language of the Amica policy at issue precludes coverage in that it states that Amica will not provide liability coverage for "[a]ny vehicle, other than [the insured's] covered auto, which is . . . [o]wned by any family member." The defendants cite Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 573 A.2d 740 (1990) in support of their argument. In Smith, the Supreme Court upheld the validity of the owned automobile exception in the context of an underinsured motorist claim. Id. By contrast, the plaintiff relies on the Supreme Court's decision in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982), which she cites for the proposition that "the owned auto exclusion is void in an underinsured/uninsured motorist coverage claim because the language of the relevant statute is `person oriented.'"
The plaintiff also argues that because the fact that Diane Dindial was driving a car that she owned is "not disputed and . . . is resolved by case law, it is not a proper issue for summary judgment." To the contrary, "[s]ummary judgment is a method of resolving litigation when 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In discussing the defendants' reliance on Smith, the plaintiff maintains that "the defendant's citation of [ Smith] is not controlling here because that case turned on the fact that the plaintiff was not an insured under the policy, and could not collect benefits under an underinsured/uninsured motorist claim . . . By contrast, since there is evidence to show reasonable belief that Diane Dindial was an insured as a `family member' under the defendant's insurance policy, Smith is not controlling, and summary judgment must be denied." Here the plaintiff is arguing that Smith is inapplicable to the present case solely because Diane Dindial should be considered as a resident of the defendant's household and thereby covered under his policy. However, the court has found that Diane Dindial was not a resident of the defendant's household and was not covered under the defendant's Amica automobile insurance policy. Accordingly, the plaintiff's reasoning for the inapplicability of Smith to the present case is without merit.
In Smith, the plaintiff, Celestine Smith, sustained severe injuries when an automobile owned and operated by Eric Harrington was involved in a one-car accident. Smith v. Nationwide Mutual Ins. Co., 214 Conn. 736. Although Eric Harrington was insured, his insurance coverage did not fully compensate Smith for the injuries she received in the accident. Id. As a result, Smith pursued a claim under the automobile insurance policy held by Eric Harrington's father, Robert Harrington. Id. Akin to the present case, Robert Harrington's policy excluded "from coverage `any vehicle other than [his] covered auto which [was] owned by any family member.'" Id., 737. Citing Harvey v. Travelers Indem. Co., supra, 188 Conn. 245, "to argue that uninsured motorist coverage attaches to the insured person and therefore `an insured party may receive the benefits of a policy even though not occupying a vehicle insured under the policy'"; id.; Smith requested that the Supreme Court "invalidate the policy's exclusion `in the context of uninsured/underinsured motorist coverage.'" Id.
Unpersuaded by Smith's argument, the court noted that "[u]nlike Harvey . . . Smith is not an insured under the defendant's policy," and that Harvey was thus inapplicable. Id., 739. The court concluded: "Whether Smith is entitled to collect, pursuant to the uninsured motorist coverage provision of Hartford Casualty's policy, is a question of coverage, not exclusion . . . Because Smith is not `covered' under the terms of the policy, the trial court properly denied her claim for underinsured motorist benefits." (Citations omitted.) Id., 741.
Since the court has found that Diane Dindial is not insured under the defendant's policy, Harvey is not applicable to the present case. The defendants' reliance on Smith is properly founded. Diane Dindial owned the car she was driving when she was involved in the collision with Cruz. The defendant's automobile insurance policy specifically excludes from coverage automobiles — other than the insured's designated "covered" automobile — that are owned by family members. Thus, even if Diane Dindial was a resident of the defendant's household at the time of her collision with Cruz, the collision is specifically excluded from coverage under the defendant's policy because she was driving an automobile that she owned.
The defendants are thus entitled to summary judgment on their second ground.
CONCLUSION
Based on the forgoing, the court hereby grants the defendants' motion for summary judgment on both grounds.