Opinion
No. 564907
July 13, 2004
MEMORANDUM OF DECISION
On February 5, 2003, the plaintiff, Scott Dedford, filed an action against the defendant, National Union Fire Insurance Company of Pittsburgh, PA, for compensation under the underinsured motorist terms of the insurance policy issued by the defendant. On April 25, 2003, the defendant filed an answer and a special defense. On November 3, 2003, the defendant moved for summary judgment.
The defendant provided the plaintiff's employer, Southern New England Telephone Company ("SNET"), with an insurance policy covering its commercial fleet of vehicles. On February 2, 2000, the plaintiff was driving the insured vehicle on Interstate 95, when another vehicle, driven by Keith Wilkinson (Wilkinson), collided into the rear of the vehicle driven by the plaintiff. In 2002, the plaintiff settled with the Wilkinson and Nationwide Insurance Company (Nationwide), Wilkinson's insurance carrier, for $50,000.
The defendant submits exhibits with its summary judgment motion that establish the following relevant facts. SBC Communications, Inc. ("SBC") negotiated and obtained a commercial fleet insurance policy from the defendant for vehicles owned and operated by SNET. In a certified affidavit, Julie Long, the executive director of risk management for SBC, states that SBC is an affiliate of SNET, and SBC obtained the commercial fleet insurance policy from the defendant for the benefit of SNET vehicles. The certified affidavit of Kenneth Voight, an underwriter for the defendant, states that the defendant's policy did cover the vehicle driven by the plaintiff on February 2, 2000. The defendant submits a document entitled "Commercial Auto Coverage Party Business Auto Declarations" ("Declarations"), which states the coverage limits for uninsured and underinsured motorists as "statutory." The defendant also submits an informed consent form, signed by Long, by which SBC elected the statutory minimum amount of coverage for SNET vehicles in Connecticut.
The defendant argues that summary judgment is appropriate because the policy properly provided the statutory minimum amount of underinsured motorist coverage pursuant to Connecticut General Statutes § 38a-336. The defendant further argues that the plaintiff's settlement with Wilkinson and Nationwide precludes additional recovery under the insurance policy. The plaintiff argues in opposition that the insurance policy does not comply with § 38a-336(a)(2), and consequently SNET did not validly elect the statutory minimum amount of underinsured motorist coverage. The plaintiff further argues that the defendant does not sufficiently prove that SBC was authorized to negotiate and obtain coverage for SNET's commercial fleet of vehicles.
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 . . . 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.) Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003).
"[E]ach automobile liability insurance policy issued . . . shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of Section 14-112." General Statutes § 38a-336(a)(2). The statutory minimum limit for underinsured motorist coverage is $20,000 for injury to one person, and $40,000 for injury to more than one person. General Statutes § 14-112(a).
Section 38a-336(a)(2) provides in relevant part: "No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer."
The plaintiff argues that the informed consent form did not comply with the requirements of § 38a-336(a)(2) because it failed to contain the premium cost for each of the coverage options made available from the defendant.
In McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, 79 Conn. App. 800, 807, 831 A.2d 310, cert. denied, 266 Conn. 929 (2003), the Appellate Court determined that in the commercial fleet context, the failure of the informed consent form to contain a statement of premium costs does not defeat the election of the lower statutory limit for underinsured motorists coverage. "The purpose of § 38a-336(a)(2), including the provision requiring that insurers inform consumers of the premium cost for each of the underinsured motorists coverage options available, is to facilitate consumers' decision-making process and to ensure that they give informed consent to reduced coverage. We do not believe that a company . . . which insures a fleet of vehicles to carry on a large commercial enterprise, falls within the class of consumers that the legislature sought to protect when it mandated the disclosure of premium costs under § 38a-336(a)(2)." McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, supra, 79 Conn. App. 807.
In her affidavit, Long stated that "SBC's decision to obtain Connecticut's statutory minimum UM/UIM coverage was a conscious business decision." She also stated that she is an insurance specialist, and "was fully aware of the relative cost of UM/UIM coverage and the implications of the decision to elect to obtain the statutory minimum coverage." The court is satisfied that SBC properly elected the statutory minimum amount of underinsured motorist coverage for SNET's commercial fleet of vehicles.
The plaintiff further argues that because the defendant did not properly elect the statutory minimum amount of coverage a reasonable jury could conclude that underinsured motorist coverage limit is the full liability limit of the policy. The court does not address this argument because it finds that SBC properly elected the statutory minimum amount of underinsured motorist coverage for SNET's commercial fleet of vehicles.
The plaintiff also argues that Long's affidavit fails to describe sufficiently the relationship between SBC and SNET in order to satisfy the defendant's burden of proof that Long had the authority to elect the statutory minimum amount of coverage on the policy for SNET vehicles. The court is satisfied, based on a review of the affidavits submitted by both Long and Voight, that SBC had the authority to obtain an insurance policy for SNET, and did obtain such a policy.
The plaintiff settled with Wilkinson and Nationwide for $50,000, an amount greater than the statutory minimum amount for underinsured motorist coverage. Section 38a-336(b) 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, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage." The plaintiff settled with Wilkinson and Nationwide for an amount greater than the statutory minimum amount of underinsured motorist coverage. Accordingly, this settlement precludes the plaintiff from further recovery under the defendant's policy.
For the foregoing reasons, the defendant's motion for summary judgment is granted.
D. Michael Hurley, JTR