Opinion
No. CV 08-5020192-S
August 4, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This is an action seeking damages from plaintiff's underinsured motorist insurance carrier for emotional damages suffered when family members became involved in a motor vehicle accident.
In the revised complaint dated June 30, 2008 the plaintiffs allege facts which may be summarized as follows: On or about May 8, 2005, Michael DePlante was driving west on U.S. Route 44 in Ashford, Connecticut, in an automobile in which Michael DePlante, Jr., was a passenger. Tania DePlante and Michelle DePlante were following behind in a second vehicle. At the same time, Deborah A. Rockefeller was negligently driving a vehicle eastbound on the same road, crossed the center line and violently struck the vehicle being driven by Michael DePlante, causing severe physical injuries to Michael DePlante and Michael DePlante, Jr. Tania DePlante and Michelle DePlante witnessed the collision, which caused them to suffer severe emotional distress requiring medical treatment.
At the time of the collision, the plaintiffs had an underinsured motorist policy with the defendant, under which the vehicle driven by Rockefeller constituted an underinsured vehicle. Defendant has refused to pay underinsured motorist benefits to the plaintiffs.
On April 24, 2009, the court consolidated the plaintiff's action with an action by Michael DePlante against the defendant, bearing docket number CV 08-6002938-S, that arose out of the same facts. The defendant insurance carrier filed this motion for summary judgment as to counts one and two, the claims for emotional damages by Tania DePlante and Michelle DePlante.
-I-
Defendant argues that, as a matter of law, Tania DePlante and Michelle DePlante cannot recover under the underinsured motorist policy ("policy") for any emotional distress they suffered by witnessing the collision because the policy only covers injuries that fall under the definition of "bodily injury" and, under Connecticut case law, emotional injury is not considered "bodily injury."
Tania DePlante and Michelle DePlante argue that the policy covers any legally compensable injury arising from both bodily injury suffered by any insured party; thus it is not necessary for an insured seeking recovery to have suffered bodily injury personally. Accordingly, they claim that their emotional injuries are compensable because the injuries occurred when they witnessed the bodily injuries suffered by Michael DePlante and Michael DePlante, Jr., their relatives, who are insured parties.
-II-
A contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy construing any ambiguity in the terms in favor of the insured. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005).
The policy endorsement providing for uninsured/underinsured motorist coverage, provides in relevant part: "We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury: 1) Sustained by an insured; and 2) Caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle or underinsured motor vehicle."
Essentially, the defendant reads the phrase "because of bodily injury" as only encompassing injuries that fall under the definition of "bodily injury." Conversely, the plaintiffs interpret the phrase more broadly to encompass any injuries that are derivative of a bodily injury.
In Connecticut Ins. Guaranty Ass'n. v. Fontaine, 278 Conn. 779, 782, 900 A.2d 18 (2006), the Supreme Court construed a malpractice insurance policy in which the insurer "agree[d] with the named insured to pay on behalf of the insured all sums which the insured shall be legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies caused by a medical incident . . ." When presented with two interpretations similar to those advanced by the parties in the present case, the court determined that the phrase "because of bodily injury" was ambiguous. See id., 783-84. The court then interpreted the policy language broadly to cover a loss of consortium claim maintained by the wife of a man who had suffered bodily injury at the hands of the insured. Id., 789.
In the present case other language in the policy that suggests that the parties agreed on the more expansive interpretation posited by Tania DePlante and Michelle DePlante. The language "because of bodily injury . . . [s]ustained by an insured," as opposed to "[s]ustained by the insured" or "[s]ustained by him or her," referring to the person who is entitled to recover, suggests that bodily injury need not be suffered by the party claiming benefits. This reading of the policy is bolstered by the policy's definition of "insured." An "insured" includes: "1) You or any family member. 2) Any other person occupying your covered auto. 3) Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in Paragraph 1 or 2 above." (Emphasis added.) The policy, when read as a whole, indicates that it covers damages for injuries that are the result of bodily injury to another person. It would appear that under the terms of the policy, the emotional injuries of Tania DePlante and Michelle DePlante are covered.
-III-
The defendant relies heavily on three cases, Taylor v. Mucci, 288 Conn. 379, 952 A.2d 776 (2008), Moore v. Continental Casualty Co., 252 Conn. 405, 746 A.2d 1252 (2000), and Burdick v. Causa, Superior Court, judicial district of New London, Docket No. CV 03-0567196 (February 13, 2009, Martin, J.), which it claims are analogous to the present case. After analysis, none of the cases is applicable, because none addresses the issue in the present case. In Taylor v. Mucci, supra, 383, the court considered whether an emotional injury was a distinct "bodily injury" and therefore deserving of coverage under a separate "per person" limit pursuant to an insurance policy. The Supreme Court in Moore v. Continental Casualty Co., supra, 407, considered whether emotional distress arising from financial loss triggered an insurance company's duty to defend under a policy covering bodily injury. Finally, in Burdick v. Causa, supra, Superior Court, Docket No. CV 03-0567196, the court determined the implications of the prior settlement of bystander emotional distress claims on the extent of an insurance company's liability under an uninsured/underinsured motorist policy.
Motion for summary judgment is denied.