Opinion
No. CV02 07 87 74
March 8, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On June 9, 2000, Thomas Capece, a plaintiff in the present action, sustained bodily injuries and property damage when the motorcycle he was driving collided with a vehicle operated by an uninsured third party. Following the accident, the plaintiff made a claim under the uninsured motorist provision of his motorcycle insurance policy issued by the defendant, Progressive Casualty Insurance Company. In February 2001, the parties settled the uninsured motorist claim for $20,000, the policy's limit. At that time, the plaintiff and his wife, Bridget Capece, the other named plaintiff, executed a release and trust agreement in favor of the defendant.
On June 10, 2002, the plaintiffs commenced the present action against the defendant. In count one, Thomas Capece alleges that the defendant breached a fiduciary duty it owed to him when it sold him the insurance policy because the defendant's employee did not exercise reasonable care in "interviewing, advising, and effecting" the policy and, as a result, he was inadequately insured at the time of the accident. In count two, the plaintiff repeats the allegations contained in paragraphs one through fifteen of the first count and further alleges that the defendant's employee was negligent in issuing the insurance policy. In the third and fourth counts, Bridget Capece alleges loss of consortium by reason of her husband's injuries.
On April 21, 2003, the defendant filed an answer and special defenses. The first special defense alleges that the plaintiffs' claims are barred by operation of the release they executed. On May 19, 2003, the defendant filed a motion for summary judgment and supporting memorandum of law; the defendant argued that the release absolved it of any further liability related to the motorcycle accident. On September 30, 2003, the court, Nadeau, J., denied the defendant's motion for summary judgment and held that the release is limited to claims under the insurance policy and does not extend to the plaintiff's present claims based on negotiations for the original issuance of the policy.
On October 23, 2003, the defendant filed the present motion for summary judgment, accompanied by a supporting memorandum of law, as well as supporting evidence. On November 10, 2003, the plaintiffs filed a motion for continuance, a memorandum of law in opposition to the motion for summary judgment, and supporting evidence. The defendant filed a reply on November 17, 2003, as well as a supplemental reply on November 24, 2003.
"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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).
"A `genuine' issue has been variously described as a `triable,' `substantial' or `real' issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "[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." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "[T]he party opposing . . . a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
The defendant moves for summary judgment as to all four counts on the ground that there are no genuine issues of material fact in dispute and it is entitled to judgment as a matter of law because, based on the "law of the case" doctrine, the plaintiffs cannot claim any damages under the contract of insurance. The defendant also argues that the relationship between an insurer and insured during the purchase of a policy is commercial and, hence, it did not owe a fiduciary duty to Thomas Capece. In addition, the defendant contends, inasmuch as it did not owe a duty to Thomas Capece to recommend or provide more insurance coverage than the legal threshold, it was not negligent. Given the failure of these primary claims, the defendant argues that Bridget Capece's consortium claims must also fail. In support of its motion for summary judgment, the defendant submits the court's memorandum of decision denying its earlier summary judgment motion.
The plaintiffs counter that at least one genuine issue of material fact exists regarding whether the law of the case precludes the claims that the defendant owed a fiduciary duty to Thomas Capece or that the defendant was negligent during the sale of the insurance policy. In support of their opposition, the plaintiffs submit Thomas Capece's sworn affidavit and the answers to plaintiffs' interrogatories and requests for production.
The first issue before the court is whether, based on the law of the case doctrine, the plaintiffs should be barred from seeking damages relating to the insurance policy. The defendant argues that the damages the plaintiffs now seek are not legally cognizable since they stem solely from the accident and not the procurement of the policy. The plaintiffs counter that because their present claims differ from the claims that they settled with the defendant, as noted in the February 2001 release, the law of the case doctrine does not preclude the present claims. They further contend that, as a matter of law, the doctrine is inapplicable because, as the court already stated, the present claims have not yet been ruled upon.
"The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause." (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). "According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Internal quotation marks omitted.) Id., 98-99.
In ruling on the defendant's previous motion for summary judgment, the court held that "[t]he causes of action now alleged arise from acts or omissions by the defendant or its agent in issuing the policy, not from conduct arising from the accident." Capece v. Progressive Casualty Ins. Co., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0078774 (September 30, 2003, Nadeau, J.) ( 35 Conn.L.Rptr. 554). The court denied the defendant's prior summary judgment motion because, despite the defendant's argument that the plaintiffs' claims were precluded based on the release, it stated that the language of the release was limited in scope to the contractual liability under the policy and "must be interpreted to be inapplicable to the present action." Capece v. Progressive Casualty Ins. Co., supra, Superior Court, Docket No. CV 02 0078774. The court held the present claims to be distinct from an uninsured motorist claim, and, therefore the law of the case doctrine cannot be invoked now despite the defendant's argument that the plaintiffs' alleged damages could only arise from the accident and not the sale of the policy. Simply alleging damages that could arise from a precluded claim, is not to allege the claim itself. The defendant's argument that the plaintiff should be barred from seeking damages relating to the insurance policy fails insofar as the law of the case doctrine does not preclude the plaintiffs' alleged claims or damages.
The next issue is whether the defendant owed a fiduciary duty to Thomas Capece. The defendant argues that Connecticut law does not recognize a fiduciary duty between an insurer and insured because, in the context of purchasing a policy, the relationship is commercial in nature. In support of this proposition, the defendant relies on Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 804 A.2d 180 (2002). Therein, the court stated: "Jurisdictions are split on the issue of whether an insurer owes a fiduciary duty to its insured; our case law is silent on this issue except for a single pronouncement in Harlach v. Metropolitan Property Liability Ins. Co., 221 Conn. 185, 190, 602 A.2d 1007 (1992), where [the court] characterized the relationship between the insurer and insured as `commercial,' at least in the context of purchasing a policy." Macomber v. Travelers Property Casualty Corp., supra, 641. In Harlach, the court addressed policy reformation and held that insureds are bound by written requests for lesser coverage wherein various coverage possibilities were provided. It also stated: "The contractual nature of insurance and the commercial relationship between insurer and insured are not altered by any peculiarities of uninsured motorist coverage. The relationship between the insured and the insurer clearly is contractual in nature, and we find nothing in [the uninsured motorist statute] that alters the traditionally commercial setting in which insurance policies are purchased. Our [uninsured motorist] statute creates no fiduciary obligations . . . As offeror, [the carrier] had no contractual duty voluntarily to explain the terms of its offer or the advantages and disadvantages to procuring uninsured motorist coverage . . ." (Emphasis in the original; brackets in the original; internal quotation marks omitted.) Harlach v. Metropolitan Property Liability Ins. Co., supra, 221 Conn. 190.
Such a claim generally should be raised by a motion to strike. See Practice Book § 10-39. "There is a substantial difference between a motion for summary judgment and a motion to strike. The granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . See Practice Book § 17-49. The granting of a motion to strike allows the plaintiff to replead his or her case. See Practice Book § 10-44 . . . Because the plaintiff[s] did not challenge the propriety of the defendant['s] use of a motion for summary judgment to challenge the legal sufficiency . . . [this court will] consider the merits of the defendant['s] legal sufficiency claim in the procedural context in which it was raised." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 674 n. 7 (2004).
The plaintiffs counter that the facts in the present case are distinguishable from those of Macomber and Harlach and, thus, a fiduciary relationship existed. The plaintiffs argue that because the Macomber plaintiffs purchased annuities, no analogy should be drawn to the present case. They also contend that Harlach involves reformation of an existing policy, not issuance of a new one, and point out that Thomas Capece was not given a menu of coverages from which to select. The plaintiffs submit, therefore, that those cases are inapplicable and the defendant owed Thomas Capece a fiduciary duty during the course of the sale. Moreover, the plaintiffs contend that whether the defendant breached its fiduciary duty in the procurement of the insurance policy is a question of fact, thus rendering summary judgment improper.
In its reply brief, the defendant reiterates that the courts' holding in Macomber and reasoning in Harlach are applicable because both cases were based on the procurement of an insurance product from an insurance company, and thus analogous to the present case. The defendant further contends that with respect to the plaintiffs' references in their memorandum of law to an "insurance broker" and "insurance agent," these terms do not apply. In support of this argument, the defendant references to the court General Statutes § 38a-702a(1) which define these terms. The defendant also argues that other than Thomas Capece's affidavit and the defendant's own responses to interrogatories, the remainder of the plaintiffs' evidence is inadmissible because the documents have not been properly authenticated.
General Statutes § 38a-702(1) provides in relevant part:
"Insurance agent" means a person authorized in writing, by any insurance company authorized to transact business in this state, to solicit, negotiate or effect contracts of insurance . . . "Insurance agent" shall not include persons acting as executive officers or traveling salaried employees of an insurance company authorized to transact business in this state;
(2) "Insurance broker" means any person . . . who . . . for compensation, acts or aids in any manner in negotiating contracts of insurance or surety . . . for a person other than himself, and not as an officer, traveling salaried employee or licensed agent of an insurance company.
In their memorandum of law, the plaintiffs use the terms "agent" and "broker" in a broad sense, therefore a strict construction of those terms is unnecessary.
The plaintiffs also have submitted the defendant's responses to their requests for production, including two reproduced photographs of the subject motorcycle, a copy of a portion of the transcribed telephone conversation between Thomas Capece and the defendant's employee, and a copy of the policy statement. Unauthenticated documentary evidence should not be considered for purposes of a summary judgment motion.
"It is well settled that `a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.' . . . Although [our Supreme Court] has `refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations,' . . . [it] ha[s] recognized that not all business relationships implicate the duty of a fiduciary . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary." (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., supra, 261 Conn. 640. "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 153, 819 A.2d 216 (2003). "The law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Brackets in original; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 41, 761 A.2d 1268 (2000).
In its answers to the plaintiffs' interrogatories, the defendant has acknowledged the genuineness of the transcribed recorded telephone conversation between Thomas Capece and the defendant's employee. Viewing that telephone conversation in a light most favorable to the plaintiff, however, does not establish that Thomas Capece was unable to protect his interests or that the defendant was in control of selecting the amount of uninsured motorist coverage, thus, a fiduciary duty will not be implied. The plaintiffs have failed to provide an evidentiary foundation demonstrating a genuine issue of whether a fiduciary duty existed. Therefore, summary judgment is granted as to count one.
Plaintiff's Exhibit #2, "Policy Quote For Thomas Capece" provided during a telephone call, states in relevant part:
B: Now, you can go with, on the bikes, you can go with um, liability coverage just like an automobile. Ah, um, do you want to go, do you know what, any, have any idea what kind of coverage you want to go with for that?
TC: I don't know.
B: State requires a minimum of $20,000 per person/$40,000 per accident.
TC: Yeah, I mean if, I'm not even sure if I want ah, passenger insurance on it.
B: Let's put together just a real basic policy then.
TC: Yeah.
B: Give you liability coverage, give you what ah, what it's gonna require. What would you say the bike is worth right now?
TC: $5,000.
B: Okay. And we'll [throw] comp and collision on here and take a look at that, like a $500 deductible.
TC: Okay.
B: Okay, if we [throw] liability on there at $20,000 per person/$40,000 per accident, $10,000 in property damage, put uninsured ah, motorist on there, which we have to put if you have your liability like that at 20/40. And then $500 deductibles . . .
The next issue is whether the defendant was negligent during the sale of the insurance policy to Thomas Capece. The defendant contends that Thomas Capece's negligence claim is legally insufficient because it did not have a duty to him to recommend or provide insurance coverage beyond the statutory minimum. The defendant notes that the insurance industry is one of the most highly regulated, yet no regulation exists that requires an insurer to recommend to its customers coverage in excess of the statutory minimum. The plaintiffs contend that the determination of negligence is one of fact, consequently, summary judgment is inappropriate.
Summary judgment is particularly "ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). While "the conclusion of negligence is necessarily one of fact"; (internal quotation marks omitted) Id.; "[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn. App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "[T]he test for the existence of a duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate harm of the general nature of that suffered was likely to result and (2) a determination, on the basis of public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483-84, 717 A.2d 1177 (1998).
The plaintiffs have not provided evidence demonstrating that a genuine issue exists regarding whether the defendant owed Thomas Capece a duty of care to provide insurance coverage beyond the statutory minimum. Simply detailing how the defendant allegedly breached a duty of care does not rise to the level of providing an evidentiary foundation that such a duty existed; without a duty, negligence cannot be established. See Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974). Furthermore, mindful of public policy, an insurer should not have a duty to suggest more than the statutory minimum coverage, otherwise it may be acting in its own interest by attempting to sell insurance policies with higher premiums. Therefore, summary judgment is granted as to the second count of the plaintiffs' complaint as a matter of law.
The final issue before the court is whether summary judgment should be granted as to the third and fourth counts of the complaint. The defendant argues that if summary judgment is granted on the first two counts, it also must be granted on counts three and four, Bridget Capece's loss of consortium claims, inasmuch as the claims are derivative. In their memorandum of law in opposition, the plaintiffs agree.
"Even though [our Supreme Court has] considered the loss of consortium a separate cause of action, [it] held that it [is] derivative and inextricably attached to the claim of the injured spouse." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 380, 773 A.2d 906 (2001). Summary judgment is also granted on the third and fourth counts of the plaintiffs' complaint.
Based on the foregoing, the defendant's motion for summary judgment is granted as to counts one through four.
UPSON, J.