Opinion
No. CV-03-0484870 S
October 7, 2004
MEMORANDUM OF DECISION
On December 16, 2003, the plaintiff, Paul D'Amico, filed this action against C. Dean Yopp, Cherie Yopp, the Insurance Company of North America (Insurance Company), and the Great American Insurance Company (Great American). The four-count complaint seeks damages for injuries and losses allegedly, sustained as a result of an automobile accident that occurred on September 26, 2002.
On March 25, 2004, the plaintiff, Paul D'Amico, filed a request for leave to amend the complaint by substituting Carl Secola, Administrator for the Estate of C. Dean Yopp, for C. Dean Yopp, who died on November 26, 2002. The defendants did not object to the plaintiff's request to amend, nor did the defendant Great American Insurance Company, the movant of the motion to strike, file an amended motion. Therefore, under Practice Book § 10-61, the original motion to strike filed by Great American Insurance Company shall be regarded as applicable to the plaintiff's amended pleading. See Dennison v. Klotz, 12 Conn.App. 570, 574, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1316 (1988).
In counts one and two of the complaint, the plaintiff alleges negligence on the part of C. Dean Yopp, as the operator, and Cherie Yopp, as the owner of an automobile, respectively, that allegedly struck an automobile operated by him. In count three, the plaintiff alleges that on the date of the accident, his employer, Yale University and the New Haven Bus Service, had an insurance policy in effect with the defendant Insurance Company that provided underinsured motorist benefits. Lastly, in count four, directed toward Great American, the plaintiff similarly alleges that on the date of the accident, he had an insurance policy in effect with Great American that provided underinsured motorist benefits.
On January 23, 2004, Great American filed a motion to strike count four of the complaint, accompanied by a memorandum of law in support. The plaintiff filed a memorandum in opposition to the motion on February 10, 2004.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). The court must "take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003): "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
Great American moves to strike count four on the ground that the allegations of the complaint fail to meet the prerequisite to a claim for underinsured motorists benefits as against Great American — the exhaustion of the tortfeasor's liability policy. Great American argues in support of its motion that the plaintiff has failed to state a claim upon which relief can be granted in that the plaintiff has not alleged exhaustion of insurance benefits, or that the liability insurance policy limits of the tortfeasor and the owner of the vehicle are insufficient to compensate the plaintiff for injuries sustained. Complete exhaustion of the underlying insurance policy or bond, Great American contends, is a condition precedent to an insurance company's obligation to pay underinsured motorist benefits under General Statutes § 38a-336(b). Great American argues that the plaintiff's assertion in count four that "there may not be sufficient motor vehicle coverage from the responsible tortfeasor that may be able to fully compensate the plaintiff for his injuries" does not satisfy the precondition of exhaustion of the underlying policy. The mere allegation that there may not be sufficient primary insurance coverage, Great American maintains, is "purely speculative and conclusive," and thereby, is legally insufficient to give rise to an obligation to pay on an underinsured motorist claim.
That statute provides in relevant part: "An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage 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 . . ." General Statutes § 38a-336(b).
In response to Great American's motion to strike, the plaintiff contends that a claim for underinsured motorist benefits may be brought prior to exhaustion of the tortfeasor's liability policy and that Great American misapprehends the meaning of § 38a-336(b). The plaintiff asserts that the statute does not set exhaustion of the underlying policy as a prerequisite to commencing an action for underinsurance benefits, but rather as the time for which a recovery action accrues. The plaintiff further argues that Great American's motion fails to challenge the legal sufficiency of the complaint on the basis that it ignores the clear distinction between the time at which an obligation to pay on an underinsured motorist claim arises and the point at which an action for underinsured benefits can be commenced.
"Section 38a-336(b) requires that an insurer pay its insured up to the limits of the policy's [underinsured] motorist coverage after the liability limits of all other applicable insurance policies have been exhausted by payment of judgments or settlements . . . This statutes does not require exhaustion — as a condition precedent to instituting an action against the [insurance] carrier." (Internal quotation marks omitted.) Petro v. Jarvis, Superior Court, judicial district of Waterbury, Docket No. CV 97 0139906 (December 17, 1998, Pellegrino, J.) ( 23 Conn. L. Rptr. 371). "Neither the decisional law nor the statutory law of Connecticut precludes [commencement of an action seeking underinsured motorist benefits prior to the exhaustion of the tortfeasor's liability policy]. Indeed, the filing of such a claim has been approved." McGrimley v. Karpicky, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 349304 (April 21, 1998, Melville, J.) ( 22 Conn. L. Rptr. 55, 56). "[I]n the absence of a contrary provision in the claimant's motor vehicle policy, an action for underinsurance benefits can be brought at any time prior to the expiration of the time limitation of that statute." Coelho v. ITT Hartford, 251 Conn. 106, 107, 752 A.2d 1063 (1999). Although "an action for underinsured motorist benefits does not accrue until the limits of liability under the tortfeasor's policy have been exhausted;" id., 111, "a claim for underinsured motorist benefits can be initiated in advance of exhaustion." Id., 112.
In the present case, the plaintiff alleged sufficient facts to satisfy a claim for underinsured motorist benefits. Whether the allegations of count four of the complaint meet the requirements for a claim of exhaustion of benefits is not at issue at this time as the law does not set exhaustion of the underlying policy as a precondition to initiating an action for underinsured motorist benefits, "Under General Statutes § 38a-336(b) . . . an insured may recover uninsured or underinsured motorist benefits only after exhausting the liability limits of the tortfeasor's policy . . . however, an insured may commence an action for underinsured motorist benefits prior to exhausting the liability limits of the tortfeasor's policy." (Citations omitted.) Stevens v. Aetna Life Casualty Co., 233 Conn. 460, 470 n. 14, 659 A.2d 707 (1995). Therefore, § 38a-336(b) only requires exhaustion prior to recovery for underinsured liability. In other words, the statute speaks to when the insurer's obligation to pay arises rather than when an injured party may initiate proceedings for underinsured benefits.
As the plaintiff has not yet sought recovery of underinsured motorist benefits against Great American, the argument for exhaustion as a precondition to initiating an action must fail. Great American's argument sets exhaustion as a condition precedent to commencing an action for underinsured benefits despite overwhelming case law which favors a plaintiff's right to file a claim for underinsured motorist benefits at any time within the statute of limitations. See Tracy v. Allstate Insurance Co., 70 Conn.App. 726, 799 A.2d 1109 (2002), (insurance policy provisions did not prevent plaintiff from initiating recovery proceedings for underinsured motorist benefits prior to exhaustion of tortfeasor's liability policy); Petro v. Jarvis, supra, Superior Court, Docket No. CV 97 0139906 ( 23 Conn. L. Rptr. 371) (judicial resources can be conserved by joining the underinsured carrier in an action against the tortfeasor "so [that] if the factfinder does find the damages as against the tortfeasor in excess of the policy limits of the tortfeasor then the issues against the carrier could be resolved without delay and without the necessity of adding yet an additional case to its overcrowded docket").
The plaintiff alleges in count four that the tortfeasor's underlying liability policy may be insufficient to compensate for injuries and losses sustained by the plaintiff. The legal sufficiency of such a claim was upheld in a similar case, Maringola v. Carroll, Superior Court, judicial district of Waterbury, Docket No. CV 02 0174247 (May 30, 2003, Gallagher, J.) ( 34 Conn. L. Rptr. 679). In Maringola, the plaintiff filed an underinsured motorist action against her insurance company following an automobile accident involving another driver. Id. The court in that case denied the insurance company's motion to strike relying upon the Supreme Court's holdings 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). "In McGlinchey . . . the Supreme Court stated that a demand for arbitration can be timely filed even while claims against the tortfeasor are still being pursued. The Supreme Court in Hotkowski . . . expanded McGlinchey to include an action to recover pursuant to an uninsured motorist insurance policy." Maringola v. Carroll, supra, 34 Conn. L. Rptr. 679.
For the foregoing reasons, the court denies Great American's motion to strike count four of the complaint because the plaintiff has set forth a legally sufficient claim for underinsured motorist benefits.
Howard Zoarski Judge Trial Referee