Opinion
No. CV 10 6011101 S
April 19, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #110
FACTS
The plaintiff, Mary Curtis, commenced the present action against the defendant, Clarendon National Insurance Company, by service of process on April 7, 2010. The one-count complaint alleges the following facts. On April 10, 2004, the plaintiff was a passenger in a motor vehicle operated by Dorethea Pearson. They traveled east on Route 57 in Hackettstown, New Jersey. Four hundred feet west of where Route 57 intersects with Lawrence Drive, a motor vehicle operated and owned by Wayne Belohlavek was directly in front of the motor vehicle occupied by the plaintiff. Belohlavek's motor vehicle made a U-turn and hit the passenger's side of the motor vehicle occupied by the plaintiff. The plaintiff was injured as a result of the collision.
The coverage provided by Belohlavek's motor vehicle liability insurance policy has been exhausted. It is inadequate to fully compensate the plaintiff for her injuries and losses. She now seeks to recover under the uninsured/underinsured motorist provisions of the motor vehicle liability insurance policy provided by the defendant to Tara Pearson (Pearson).
The defendant filed the present motion for summary judgment, a memorandum of law in support thereof and exhibits on January 11, 2011. The defendant's exhibits include an affidavit of one of the defendant's claim representatives (Ex. A) and a copy of Pearson's policy (Ex. B). The plaintiff in turn filed a motion for extension of time to respond to the defendant's motion for summary judgment on January 28, 2011. The court has not acted upon the motion, and the plaintiff has not filed anything further. The court took papers on the matter during short calendar on March 28, 2011.
The court notes that the plaintiff's motion is untimely under Practice Book § 17-45, which provides in relevant part: "Any adverse party may, within ten days of the filing of the motion with the court, file a request for an extension of time to respond." (Emphasis added.) The court also notes that the plaintiff has not complied with the provision in Practice Book § 17-45 stating that "[a]ny adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence."
DISCUSSION
"Summary 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"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 . . ." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendant moves for summary judgment on the ground that it is entitled to a judgment as a matter of law because there is no genuine issue of material fact that the plaintiff did not provide contractually and legally required notice of her settlement with Belohlavek before she claimed underinsured motorist benefits from the defendant. According to the defendant, such notice was required under both Pearson's policy and New Jersey law, which governs the present motion because New Jersey has the most significant relationship to the present action. The plaintiff has not opposed the present motion, although counsel for the plaintiff appeared during short calendar on March 28, 2011.
The court must first decide whether Connecticut or New Jersey law will govern its decision of the present motion. A choice of law issue may be decided on a motion for summary judgment. See Interface Flooring Systems, Inc. v. Aetna Casualty and Surety Co., 261 Conn. 601, 604, 804 A.2d 201 (2002). "[U]nderinsured motorist benefits are sui generis. They are contractual, but they depend on principles of tort liability and damages." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 24, 699 A.2d 964 (1997). Regardless of whether it analyzes the present action under the choice of law criteria traditionally applied to contract actions or tort actions, however, the court concludes that New Jersey law should govern its decision of the present motion.
In McKinney v. Harris, Superior Court, judicial district of Hartford, Docket No. CV 98 0578305 (April 11, 2002, Beach, J.), the court analyzed the plaintiff's action for uninsured/underinsured motorist benefits under the choice of law criteria traditionally applied to tort actions. The court specifically looked to O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986), for this criteria. In O'Connor v. O'Connor, a negligence action arising from a motor vehicle collision in Canada, the court agreed with the plaintiff's argument that it "should no longer adhere rigidly to the doctrine of lex loci," which provides "that the nature and extent of tort liability is governed by the place of injury," and that it "should instead seek to discern and to apply the law of the jurisdiction that has the most significant relationship to the controversy, in accordance with the principles of the Restatement Second Conflict of Laws." Id., 636.
"Section 145 of the Restatement Second provides in subsection (1) that `[t]he rights and liabilities of the parties with respect to an issue are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.' Section 6 of the Restatement, in turn, provides: `(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states in the determination of the particular issue, (d) the protections of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.'" Id., 650-51.
The O'Connor court then noted that § 145(2) of the Restatement "establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases" and "provides: `Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.'" Id., 652-53.
In the present action, Pearson's policy was titled "New Jersey Standard Personal Auto Insurance Plan Policy," and it made repeated references to New Jersey law. Def.'s Ex. B. The policy also required Pearson to principally garage and register any covered motor vehicle in New Jersey. Def.'s Ex. A, B. Pearson provided a Hackettstown, New Jersey mailing address to the defendant at the time of the policy's issuance. Def.'s Ex. A. The policy also bore a New Jersey address for the defendant. Def.'s Ex. B. Furthermore, there is no factual dispute that the motor vehicle collision at issue occurred in Hackettstown, New Jersey. The only contacts that Connecticut appears to have with the present action are the filing of the action itself and the Connecticut address listed for the plaintiff on the summons.
An analysis of the present action under the choice of law criteria traditionally applied to contract actions likewise leads the court to conclude that New Jersey law should govern its decision of the present motion. In Integon Indemnity v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 05 4012880 (November 17, 2006, Zoarski, J.T.R.) ( 42 Conn. L. Rptr. 373), a declaratory judgment action involving the plaintiff insurer's duty to defend under the defendant insured's policy, the court noted: "The choice of law principles governing insurance contracts `begin with the law of the place where the contract was made.' CT Page 9789 Reichhold Chemicals, Inc. v. Hartford Accident Indemnity Co., 243 Conn. 401, 408, 703 A.2d 1132 (1997). Additionally, `[S]ection 193 [of the Restatement (Second) of Conflicts of Law] establishes a special presumption in favor of application, in liability insurance coverage cases, of the law of the jurisdiction that is the principal location of the insured risk." Id., at 411. For motor vehicle policies, the state where the insured vehicle is principally garaged is the location of the insured risks and, therefore, controls the interpretation of the policy. See American States Ins. Co. v. Allstate Ins. Co., 94 Conn.App. 79, 87-88, 891 A.2d 75, cert. granted in part, 278 Conn. 904, 896 A.2d 107 (2006). `To overcome this presumption, another state's [public policy] interest must outweigh [that] of the state where the insured risk is located and must be sufficiently compelling to trump the § 193 presumption.' Id., at 87." Id., 374. The court again notes that Pearson was required under the policy to principally garage any covered motor vehicle in New Jersey. Furthermore, neither party has provided, and the court has not found in its research, any public policy interest held by Connecticut that would overcome the § 193 presumption.
The court will therefore rely upon New Jersey law in deciding the present motion. In Rutgers Casualty Ins. Co. v. Vassas, 139 N.J. 163, 652 A.2d 162 (1995), the court affirmed the appellate court's decision that the defendant insured could not recover uninsured/underinsured motorist benefits from the plaintiff insurer because the defendant failed to inform the plaintiff of the action that he brought against the tortfeasor and the arbitration award that he received as a result of the action. He was required to provide such information to the plaintiff under the subject policy. The subject policy also required the defendant to assist the plaintiff and not interfere with any subrogation action that the plaintiff could bring against the tortfeasor, but the defendant's conduct caused the statute of limitations to run on any such action. The court concluded: "Accordingly, when an insured under an automobile insurance policy providing UIM benefits is involved in an accident and undertakes legal action against the tortfeasor, the insured must notify the UIM insurer of that action. If, during the pendency of the claim, the tortfeasor's insurance coverage proves insufficient to satisfy the insured's damages, then the insured should against notify the UIM insurer of that fact. If the insured receives a settlement offer or arbitration award that does not completely satisfy the claim, because the tortfeasor is underinsured, the UIM insurer then has two options: offer to pay the insured the amount of the tortfeasor's settlement offer or the arbitration award, usually the tortfeasor's policy limit, in exchange for subrogation of the insured's rights against the tortfeasor; or, allow the insured to settle." Id., 174-75.
The court explained that the standard fairly balanced the interests of the insured and the insurer because, inter alia, "the UIM carrier is able to weigh the relative merits of allowing its insured to settle and paying the difference in UIM benefits compared with paying its insured the settlement offer plus UIM benefits and itself maintaining a subrogation action against the tortfeasor." Id. In holding that the defendant insured's action was precluded by both the relevant language in the subject policy and public policy, the court noted that the two-year statute of limitations that would have applied to any subrogation action brought by the plaintiff had expired by the time that the defendant first notified the plaintiff of his claim for uninsured/underinsured motorist benefits, which was three years after the subject motor vehicle collision. Id., 169-70.
"The limitations period for a subrogation action begins to run at the same time as the limitations period for the underlying action." Rutgers Casualty Ins. Co. v. Vassas, supra, 139 N.J. 169. In New Jersey, there is a "two-year statute of limitations for personal injuries, N.J.S.A. 2A:14-2." Id.
In the present action, Pearson's policy plainly, unambiguously and unequivocally provided with respect to uninsured/underinsured motorist benefits: "There is no coverage . . . for any person . . . if that person or the legal representative without our written consent, settles a claim with the owner or operator of an uninsured motor vehicle or underinsured motor vehicle who may be liable for the bodily injury or property damage, or . . . if that person or the legal representative without prior written notice to us, settles with any other person or organization who may be liable for the bodily injury or property damage." Def.'s Ex. B, New Jersey Standard Personal Auto Insurance Plan Policy 24. There is no factual dispute between the parties that the plaintiff neither obtained the defendant's written consent nor provided the defendant with written notice before she settled with Belohlavek. Under both Pearson's policy and New Jersey law, the plaintiff's conduct therefore precludes her from now claiming underinsured motorist benefits from the defendant. Supporting the court's conclusion is the fact that, like the plaintiff insurer in Rutgers Casualty Ins. Co. v. Vassas, the defendant in the present action has been prejudiced by the plaintiff's conduct because her submission of her claim more than two years after the motor vehicle collision at issue has caused the statute of limitations to run on any subrogation action that the defendant could have brought against Belohlavek.
In support of the present motion, a claim representative employed by the defendant who avers that she has personal knowledge of the subject collision and claim further avers: "Mary Curtis, the passenger in an automobile driven by Dorethea Pearson and owned by Tara Pearson, settled with Wayne Belohlavek for his insurance policy limits and executed a release in favor of Mr. Belohlavek dated April 24, 2006 . . . Clarendon National Insurance Company first received written notice of Mary Curtis' potential underinsured motor vehicle claim via letter from Attorney Mark Pearson on September 5, 2006." Def.'s Ex. A. The plaintiff has not challenged this averment. Furthermore, the plaintiff alleges in her complaint: "The motor vehicle liability insurance policy providing coverage for Wayne Belohlavek, the person responsible for the above-mentioned incident, is exhausted . . ."
Pearson's policy provided that the defendant had subrogation rights to the extent of any payment it made for bodily injury or property damage resulting from a collision involving an underinsured motor vehicle. Def.'s Ex. B, New Jersey Standard Personal Auto Insurance Plan Policy 34.
For the foregoing reasons, the court grants the defendant's motion for summary judgment.