Continental Insurance Co. v. Cebe-Habersky

57 Citing cases

  1. Ciarelli v. Commercial Union Insurance

    234 Conn. 807 (Conn. 1995)   Cited 35 times
    Applying Cebe-Habersky to conclude that passenger injured in single-vehicle accident must exhaust all applicable underlying liability policies, including policies of both owner and vehicle operator before proceeding on UIM claim

    The plaintiff subsequently filed a claim for underinsured motorist benefits against her own insurance carrier, the defendant. A three person arbitration panel, with one arbitrator dissenting, determined that, pursuant to Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990), the plaintiff was not entitled to benefits because she had failed to exhaust the limits of one of the insurance policies applicable to the underinsured vehicle, namely, the ITT policy. The dissenting arbitrator argued that, pursuant to General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 603 A.2d 385 (1992), the plaintiff was required to exhaust the insurance coverage of only one tortfeasor. He argued that the vehicle owner was a tortfeasor, that the plaintiff had exhausted the policy limit of the vehicle owner's insurance, and, therefore, that the plaintiff was not required to exhaust the insurance coverage of the vehicle operator.

  2. Curran v. Progressive Northwestern Ins. Co.

    29 P.3d 829 (Alaska 2001)   Cited 23 times
    Stating that "UIM claimant [must] ‘exhaust’ or ‘use up’ all underlying liability coverage before recovering under UIM policy"

    ning of the UIM policy language was clear and not contrary to public policy); Lewis v. State Farm Mut. Auto. Ins. Co., 857 S.W.2d 465, 467-68 (Mo.App. 1993) (enforcing UIM policy exhaustion clauses as written); Ploen v. Union Ins. Co., 573 N.W.2d 436, 443 (Neb. 1998) (holding that insurance companies may limit their own liability through freedom of contract; although exhaustion clauses may encourage parties to litigate rather than settle, such decisions were better left to the legislature); Castle v. Williamson, 453 S.E.2d 624, 630 (W.Va. 1994) (UIM policies containing "clear and unambiguous language which requires exhaustion of applicable liability coverage" are enforceable); Danbeck v. American Family Mut. Ins. Co., 605 N.W.2d 925 (Wis.App. 1999) (rejecting the idea that a credit was equivalent to exhausting policy limits and concluding that exhausting the limits means "entirely using up the limits"), review granted, 612 N.W.2d 732 (Wis. 2000).See Hurley, 90 Cal.Rptr.2d at 701, 703; Continental Ins. Co. v. Cebe-Habersky, 571 A.2d 104, 106 (Conn. 1990); Lemna v. United Servs. Auto. Ass'n, 652 N.E.2d 482, 484 (Ill.App.3d 1995); In re Fed. Ins. Co. v. Watnick, 607 N.E.2d 771, 774 (N.Y. 1992).Longworth v. Van Houten, 538 A.2d 414, 423-24 (N.J.Super. App. Div. 1988).

  3. Serrano v. Aetna Ins. Co.

    233 Conn. 437 (Conn. 1995)   Cited 53 times
    Holding that two-year contractual limitation to bring claim under auto-insurance policy was retroactively invalidated by statute later recodified as § 38a-290

    Public Act 93-77 was enacted in response to our decisions, issued on December 8, 1992, in McGlinchey v. Aetna Casualty Surety Co., 224 Conn. 133, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life Casualty Co., 224 Conn. 145, 617 A.2d 451 (1992), wherein we concluded that an insurer was entitled to enforce an unambiguous policy provision requiring an insured to file an action for underinsured motorist benefits within two years from the date of the accident. It had been unclear, prior to the publication of McGlinchey and Hotkowski, whether General Statutes § 38-27, now revised and recodified as General Statutes § 38a-290, authorized an insurer to limit contractually the period within which a claim for underinsured motorist benefits could be brought and, if so, whether the limitation period was tolled while the insured, in accordance with our decision in Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990), sought to exhaust the liability limits of the tortfeasor's policy as mandated by General Statutes (Rev. to 1989) § 38-175c, now revised and recodified as § 38a-336. Consequently, prior to December 8, 1992, some insureds, either in the good faith but mistaken belief that they were required, under our holding in Cebe-Habersky, to exhaust the liability limits of the tortfeasor's policy before filing an action for underinsured motorist benefits, or, in reliance on the holdings of Superior Court decisions, subsequently overruled by McGlinchey and Hotkowski, that a contractual two year limitation period for the filing of an underinsured motorist claim was unenforceable; see footnote 17; had failed to commence an action for underinsured motorist benefits until more than two years from the date of the accident.

  4. McGlinchey v. Aetna Casualty Surety Co.

    224 Conn. 133 (Conn. 1992)   Cited 63 times
    In McGlinchey v. Aetna Casualty Surety Co., 224 Conn. 133, 617 A.2d 445 (1992), this court had rejected a claim that it violated public policy to enforce a two year time limit in an underinsured motorist policy to bar the plaintiffs claim.

    The insured next maintains that, even if the arbitration clause unambiguously establishes the period during which the insured may demand arbitration, the limitation period in her case must be deemed to have been tolled until she had a reasonable opportunity to liquidate her claim against the tortfeasor. This contention rests on Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990), wherein we held that General Statutes (Rev. to 1989) 38-175c(b)(1), now recodified as 38a-336, imposes upon an underinsured motorist claimant, before recovering underinsured motorist compensation, the responsibility to exhaust payments for which the tortfeasor is liable. In this case, the accident occurred on January 24, 1987, the action was commenced against the tortfeasor on October 12, 1988, discovery disclosed the tortfeasor's limited insurance coverage on March 1, 1989, and the tortfeasor's liability was exhausted by payment of $20,000 on August 4, 1989.

  5. Coelho v. Hartford

    251 Conn. 106 (Conn. 1999)   Cited 50 times
    In Coelho the Connecticut Supreme Court relied on this exhaustion rule to determine that because "accrual" of an insured's cause of action against his own insurer for underinsured motorist benefits "is dependent upon enforcement" of a judgment against the tortfeasor's insurer for the amount of the tortfeasor's coverage, "the time for commencing such an action [against an insured's own insurer for underinsured motorist coverage] begins to run on the date of exhaustion of the tortfeasor's liability limits."

    Reading § 52-576 in conjunction with other pertinent legislation, it becomes clear that an action for underinsured motorist benefits does not accrue until the limits of liability under the tortfeasor's policy have been exhausted. In Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990), we examined General Statutes (Rev. to 1989) § 38-175c (b)(1) in order to determine when a claim for underinsured motorist benefits successfully could be maintained. That statute, now recodified as General Statutes § 38a-336 (b), obligates an insurance company to pay on a policy's underinsured motorist benefits provision only "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. . . ." According to the court, the statute requires that the insured first liquidate a claim against a tortfeasor "before recovering underinsured motorist compensation.

  6. Williams v. State Farm Mutual Automobile Ins. Co.

    229 Conn. 359 (Conn. 1994)   Cited 106 times
    Finding third factor "inconclusive" when one accident victim was domiciled in Connecticut but the other was domiciled either in New York or California — and ignoring the fact that both parties to the litigation were Connecticut residents

    Under 38a-336; see footnote 6; an injured party must exhaust his remedies against the tortfeasor before he is legally entitled to collect damages under uninsured motorist coverage. General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213 n. 7, 603 A.2d 385 (1992); Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990). In this case, the condition of exhaustion was satisfied because the tortfeasor's liability insurance company settled the case by paying the plaintiff the tortfeasor's entire policy limit.

  7. General Accident Ins. Co. v. Wheeler

    221 Conn. 206 (Conn. 1992)   Cited 71 times
    Holding that “the insured need only exhaust the ‘liability bond or insurance policies' of one tortfeasor in order for the insured to be eligible to pursue underinsured benefits”

    In none of our prior decisions have we implied that the underinsured coverage can be triggered only after exhaustion of the policies of all the joint tortfeasors. See Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990) (General Statutes 38-175c requires that an insured may not access his underinsured motorist insurance before the underinsured person responsible for the accident pays the limit of his liability policy); American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990) (a tortfeasor's vehicle is not "underinsured" pursuant to 38-175c(b)(2) when the aggregate limits of the tortfeasor's liability insurance coverage applicable at the time of the accident exceeds the uninsured motorist coverage available to the insured); Nicolletta v. Nationwide Ins. Co., 211 Conn. 640, 560 A.2d 964 (1989) (38-175c(a)(2) does not furnish a statutory basis for imposing a limitation on the stacking of uninsured and underinsured motorist coverage in an automobile liability insurance policy); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987) (the insurer is not entitled to a set off from "a dram shop" policy because it is not a "bodily injury liability bond or insurance policy

  8. Farmers Ins. Exchange v. Hurley

    76 Cal.App.4th 797 (Cal. Ct. App. 1999)   Cited 14 times
    Holding that settlement plus credit does not satisfy exhaustion requirement in UIM context, and noting analogous application in context of excess coverage, where “California courts have consistently interpreted such provisions to mean that there is no excess coverage where the insured settles for less than the full limits of the primary policy”

    We cannot interpret this language in any way other than to mean that the full limits of the policy must actually be paid. Courts of other jurisdictions have held that virtually identical language in a statute or insurance policy is not ambiguous and may only reasonably be interpreted to require payment of full policy limits. (See, e.g., Continental Ins. Co. v. Cebe-Habersky (1990) 214 Conn. 209, 212-213 [ 571 A.2d 104, 105-106]; Robinette v. American Liberty Ins. Co., supra, 720 F. Supp. 577, 580; see also Silvers v. Horace Mann Ins. Co. (1988) 90 N.C. App. 1, 8 [ 367 S.E.2d 372, 376]; Augustine v. Simonson (1997) 283 Mont. 259, 264 [ 940 P.2d 116, 119] [exhaustion clause unenforceable, but not ambiguous].) As one court succinctly put it, "There is nothing in the common meaning of `exhaust' to suggest that partial use of what is available amounts to its exhaustion."

  9. Alvarez v. Safeco Insurance Company of Illinois

    No. FBTCV196085068S (Conn. Super. Ct. Oct. 2, 2019)

    Our Supreme Court has interpreted that language to require actual payment to the claimant for exhaustion. See, e.g., Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 663 A.2d 377 (1995); Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990). The date of exhaustion in subsection (b) was further defined by our Appellate Courtin Scalise v. American Employers Ins. Co., 67 Conn.App. 753, 761-62, 789 A.2d 1066 (2002).

  10. Criscuolo v. Kline

    1994 Ct. Sup. 9047 (Conn. Super. Ct. 1994)

    See Langlais v. The Guardian Life Insurance Company of America, 7 Conn. L. Rptr. 34, 35 (July 7, 1992, Lewis, J.). Nonetheless, for the purpose of this memorandum, the court assumes the existence of the insurance policies at issue, with the policy limits as stated by the parties. In support of its motion for summary judgment, Allstate argues, based on Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209 (1990), that since the plaintiff has failed to exhaust the automobile liability policies of Raymond and Leanora Kline and Anthony Amendola, she is not entitled to collect underinsured motorist benefits from Allstate. The plaintiff argues in response that, pursuant to General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213-14 (1992), the plaintiff need only exhaust one policy before proceeding to an underinsured motorist claim.