Opinion
FBTCV176068795S
03-01-2019
Ruby ESTAVIEN v. PROGRESSIVE CASUALTY INSURANCE COMPANY et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Defendant Sacoto Agency, LLC moves for summary judgment on count two of the amended complaint (no. 108.00) filed by plaintiff Ruby Estavien. The defendant was retained by the plaintiff’s grandfather, Paul Noel, to secure automobile insurance for his livery service. While the plaintiff was a member of Noel’s household, she was seriously injured in a car accident. The $ 120, 000 she recovered from the tortfeasor and her driver was not adequate for her injuries. She brought this action in breach of contract against the co-defendant, Progressive Casualty Insurance Company ("Progressive"), and in negligence against this defendant to recover what she claims should be $ 1.5 million in underinsured motorist benefits in that policy. This defendant argues that summary judgment should enter in its favor on the negligence claim on the grounds that (1) the defendant did not cause the plaintiff’s damages, and (2) the requirements of General Statutes § 38a-336(a)(2) do not apply to commercial policies such as that purchased by the plaintiff’s grandfather. For the reasons that follow, the court denies the motion on these grounds. However, the court believes that there is a serious question as to whether the plaintiff has standing to sue this defendant, and even if she has standing, whether this defendant owes a duty to her. Accordingly, the court orders supplemental briefing on those issues as set forth in an accompanying order.
MATERIAL FACTS
This defendant secured a series of commercial automobile insurance policies for Noel from co-defendant Progressive. Plaintiff’s Exhibits (Pl. Ex.) A-L (no. 139.00). Each policy insured one vehicle, a 2007 Chevrolet Express G3500. See, e.g., Pl. Ex. L (no. 139.00). The plaintiff was covered by the policy’s Uninsured/Underinsured Motorist Coverage Endorsement. That endorsement defines "insured" as "you or a relative" "if the named insured shown on the Declarations Page is a natural person" (Pl. Ex. M (no. 140.00)). The named insured is Paul Noel. Id. The policy defines "relative" as "any person living in the household in which the named insured resides who is related to the named insured by blood, marriage, or adoption, including a ward or foster child. This term only applies if the named insured is a natural person." Id. The insuring agreement provides: "we will pay for damages, ... which an insured is legally entitled to recover from an owner or operator of an uninsured auto because of bodily injury: 1. Sustained by any insured; 2. Caused by an accident; and 3. Arising out of the ownership, maintenance, or use of an uninsured auto." Id.
Prior to March 31, 2015, Noel’s Progressive policies consistently had limits of $ 20, 000 each person/$ 40, 000 each accident for both liability and underinsured motorist coverage (Pl. Exs. A-J (no. 139.00)). On March 31, 2015, Noel told this defendant that he needed $ 1.5 million in liability coverage to meet Connecticut Department of Transportation requirements for his business (Pl. Ex. O (no. 141.00)). In response to that request, a Sacoto employee name Miluidy called Progressive, which recorded the conversation (Pl. Ex. P (no. 142.00)). In the first recording, Miluidy asked the Progressive representative for the addition of a form MC 1641B to the policy (Pl. Ex. P). The representative of Progressive advised Miluidy that the liability limits had to be increased to $ 300, 000 combined single limits. Id. Progressive made changes to the policy that date to increase the liability limits to $ 300, 000 and to change the uninsured/underinsured motorist limits to $ 50, 000 combined single limit (Pl. Ex. K (no. 139.00)). There was no discussion of underinsured motorist coverage or the $ 50, 000 limit in the first recording (Pl. Ex. P.)
Later that same date, Miluidy called Progressive again and asked if it could provide $ 1.5 million in liability coverage (Pl. Ex. Q (no. 142.00)). When Progressive’s representative indicated that it could, Miluidy requested an increase in liability coverage to $ 1.5 million. Id. When Progressive’s representative asked Miluidy about uninsured/underinsured motorist coverage limits, Miluidy stated that those would remain at the $ 50, 000 combined single limit. Id. There is no indication in the recording that she stopped the conversation to talk to Noel to confirm that he agreed. Id. Moreover, there is no evidence of any kind that has been submitted by any party regarding any conversation between Noel and anyone at Sacoto regarding whether the underinsured motorist coverage limits should be equal to the new liability limits Noel was requesting or whether they should be lower.
Progressive issued new declaration pages reflecting first the $ 300, 000 liability limit and the $ 50, 000 underinsured motorist coverage limit and then the $ 1.5 million liability limit and the $ 50, 000 underinsured motorist coverage limit (Pl. Exs. K and L (no. 139.00)). In addition, Progressive sent to Noel at least one informed consent form required by General Statutes § 38a-336(a)(2) (Pl. Ex. R (no. 142.00)). That informed consent form, which was written in English, explained uninsured and underinsured motorist coverage and included this warning in letters that were bold, all capitals and underscored:
WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PUCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OF ANOTHER QUALIFIED ADVISOR.Id. Directly below that warning was a signature line. Id. Noel signed and dated it April 8, 2015. Id. There is no evidence that Noel consulted with Progressive or Sacoto about this form. At his deposition, Noel testified that he did not know what underinsured motorist coverage is, that as a native Creole speaker he was not comfortable speaking English, and that he had relied upon this defendant for help with insurance documents in the past (Pl. Ex. O (no. 141.00)).
The plaintiff was injured on March 30, 2016, after this change in the policy limits. Complaint, ¶ 1.
LEGAL ANALYSIS
I. SUMMARY JUDGMENT STANDARD
"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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312, 77 A.3d 726 (2013). "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 under Practice Book [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). The opposing party must demonstrate that she has sufficient counterevidence to raise a genuine issue of material fact as to each of the essential elements of her cause of action. See Stuart v. Freiberg, 316 Conn. 809, 823-24, 116 A.3d 1195 (2015).
II. GENERAL STATUTES § 38a-336(a)(2) APPLIED TO THE PLAINTIFF’S GRANDFATHER’S POLICY
General Statutes Section 38a-336(a)(2) requires that the limits for underinsured motorist coverage be equal to the limits for liability coverage unless the policyholder signs a written informed consent form for lower limits:
Notwithstanding any provision of this section, each automobile liability insurance policy issued or renewed on and after January 1, 1994, 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. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements that extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form that 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. Such informed consent form shall contain a heading in twelve-point type and shall state: "WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER."
The parties dispute whether this statute applied to Noel’s commercial auto policy. The defendant argues that because Noel purchased a commercial auto policy, the statute’s requirements do not apply to him. The plaintiff responds that any loosening of the statutory requirements by the courts have been limited to commercial fleet policies, not all commercial auto policies. The court agrees with the plaintiff.
The statutory default that underinsured limits should equal liability limits first appeared in Public Act 83-461, which amended Section 38-175c, the predecessor statute to Section 38a336. That public act required equivalent limits "unless the insured requests in writing a lesser amount" for underinsured limits. The Supreme Court interpreted the version of the statute that was amended by Public Act 83-461 in Nationwide Mutual Insurance Co. v Pasion, 219 Conn. 764, 594 A.2d 468 (1991). There, the court held that the language "the insured" was ambiguous and that therefore, in a situation where the husband had executed a written request to reduce the limits, but the other named insured, his wife, had not, a passenger riding with the wife could recover underinsured limits equal to the liability limits based on the statute, not the reduced underinsured limits on the face of the policy. The court relied heavily on the legislative history of Public Act 83-461 to find a legislative intent "to assure that consumers purchasing automobile liability insurance would be made aware of the low cost of equal amounts of uninsured coverage by requiring any reduction in that coverage to be in writing." Id., 770-71, 594 A.2d 468.
The Supreme Court revisited this issue under the same version of the statute in the context of a commercial fleet policy in Frantz v. United States Fleet Leasing, Inc., 245 Conn. 727, 714 A.2d 1222 (1998). In that case, the court was confronted by a commercial fleet policy for which a representative of General Dynamics Corporation (but none of the other named insureds) had signed a written selection form, choosing the minimum amount of underinsured motorist coverage. Id., 731, 714 A.2d 1222. Although the trial court had granted summary judgment in favor of the plaintiff accident victims, based on Pasion, the Supreme Court reversed. Id., 733-36, 714 A.2d 1222. The Supreme Court distinguished Pasion, holding that "the legislature did not intend to require the written consent of all named insureds on a commercial fleet policy as a necessary prerequisite to a reduction in coverage." Id., 738-39, 714 A.2d 1222. The court noted that the need to protect consumer named insureds from being bound by the unilateral decision of another named insured did not apply in the situation before it where the named insured in question, United States Fleet Leasing, Inc., had expressly contracted with General Dynamics to address all matters relating to underinsured motorist coverage. Id., 740, 714 A.2d 1222.
The legislature cleared up the ambiguity caused by the language "the insured" in 1993 when it enacted Public Act 93-297, which changed the language to "any named insured." More significantly, that public act added to what was by then General Statutes § 38a-336(a)(2) the requirement that any named insured sign an informed consent form.
The Supreme Court and the Appellate Court considered whether commercial fleet policies had to comply with this version of the statute twice. In McDonald v. National Union Fire Insurance Company of Pittsburgh, PA, 79 Conn.App. 800, 831 A.2d 310 (2003), cert. denied, 266 Conn. 929, 837 A.2d 802 (2003), the Appellate Court held that the informed consent form signed by a representative of Cumberland Farms did not need to meet the statutory requirement of listing the premium cost options. In Kinsey v. Pacific Employers Insurance Co., 277 Conn. 398, 891 A.2d 959 (2006), the Supreme Court held that the statutory requirement of 12-point typeface did not apply to the commercial fleet policy held by a company with 2700 employees and over 1000 vehicles. In each of those cases, the policyholder did sign an informed consent form.
A commercial fleet policy has been defined by the Supreme Court as "any insurance policy designated as a "fleet" or "garage" policy, or any insurance policy covering a number of vehicles owned by a business, a governmental entity, or an institution." Cohn v. Aetna, 213 Conn. 525, 530, 569 A.2d 561 (1990). Noel did not have a commercial fleet policy. The undisputed facts show that the policy was titled "commercial auto policy," that the named insured was Paul T. Noel, a natural person, and that the policy covered one livery vehicle, a 2007 Chevrolet Express G3500. The defendant has not cited, nor has the court found, any authority for the proposition that a commercial auto policy, as opposed to a commercial fleet policy, should be exempt from the informed consent form requirements of General Statutes § 38a-336(a)(2). Accordingly, the court holds that the requirements of that statute apply to the policies sold to Noel, including the policy at issue in this case.
III. THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO CAUSATION
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). Ordinarily, the court would address the element of duty first. "The existence of a duty is a question of law and [o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Id., 384, 650 A.2d 153. However, in a single sentence before beginning its legal argument in its supporting memorandum, the defendant states: "While for purposes of this Motion for Summary Judgment Sacoto does not contest that it had a duty to Noel for the Commercial Policy, it does contest whether that duty extended to the Plaintiff herself" (No. 131.00). The defendant never returned to that point in its legal argument. The plaintiff does not address this point at all, and indeed, devotes much of her memorandum to arguing that there was a duty owed to Noel (No. 143.00).
The court considers it a serious question whether any duty was owed by this defendant to the plaintiff. More fundamentally, the court raises the question of whether the plaintiff has standing to sue this defendant such that the court has subject matter over this claim. As indicated previously, the court orders the parties to file supplemental briefs on these issues.
The court is mindful that on a motion for summary judgment it cannot decide issues not raised by the parties. However, this court may raise the issue of subject matter jurisdiction on its own. See Tirado v. Torrington, 179 Conn.App. 95, 179 A.3d 258 (2018). "Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Tolly v. Dept. of Human Resources, 225 Conn. 13, 29, 621 A.2d 719 (1993). Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter in controversy." (Internal quotation marks omitted.) Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674, 676 (1983). As for duty, the defendant raised the issue, but neither party briefed it.
The only legal argument the defendant sets forth in its memorandum, besides its argument addressed above that the statute did not apply to this policy, is that the plaintiff cannot prove that this defendant caused her any harm. Causation has two components: cause in fact and proximate cause. Ruiz v. Victory Properties, LLC, 315 Conn. 320, 329, 107 A.3d 381 (2015). The defendant devotes its entire argument to proximate cause.
"The test for proximate cause is whether the defendant’s conduct was a substantial factor in producing the plaintiff’s injury ... This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm [that] occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence." (Internal quotation marks omitted.) Id., 107 A.3d 381. Our Supreme Court has recognized that "whether the injury is reasonably foreseeable ordinarily gives rise to a question of fact for the finder of fact, and this issue may be decided by the court only if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it ... In other words, foreseeability ‘becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact.’" (Citations omitted; internal quotation marks omitted.) Id., 330, 107 A.3d 381.
Before addressing the defendant’s arguments as to why its actions or inactions were not a proximate cause of the plaintiff’s harm, the court will review the facts regarding a possible breach of duty to at least Noel. There is a disputed issue of material fact as to how the underinsured motorist coverage limits became $ 50, 000 on March 31, 2015. The plaintiff has provided the court with transcriptions of two recordings of conversations that Miluidy, apparently an employee of this defendant, had with representatives of Progressive that day (Pl. Exs. P and Q (No. 142.00)). Prior to March 31, 2015, the policies consistently had $ 20, 000 each person/$ 40, 000 each accident limits for both liability and underinsured motorist coverage, and therefore there was no need for informed consent under the statute. On March 31, 2015, Noel told this defendant that he needed $ 1.5 million in liability coverage to meet Connecticut Department of Transportation requirements for his business (Pl. Ex. O (no. 141.00)). In the first recording, Miluidy of Sacoto asked Progressive representative for the addition of a form MC 1641B to the policy (Pl. Ex. P (no. 142.00)). The representative of Progressive advised Miluidy that the liability limits had to be increased to $ 300, 000 combined single limits. Id. Progressive made changes to the policy that date to increase the liability limits to $ 300, 000 and to change the uninsured/underinsured motorist limits to $ 50, 000 combined single limit (Pl. Ex. K (no. 139.00)). There was no discussion of underinsured motorist coverage or the $ 50, 000 limit in the first recording (Pl. Ex. P (no. 142.00)).
Later that same date, Miluidy called Progressive again and asked if it could provide $ 1.5 million in liability coverage (Pl. Ex. Q). When Progressive’s representative indicated that it could, Miluidy requested an increase in liability coverage to $ 1.5 million. Id. When asked about uninsured/underinsured motorist coverage limits, Miluidy stated that those would remain at the $ 50, 000 combined single limit. Id. There is no indication in the recording that she stopped the conversation to talk to Noel to confirm that he agreed. Id. Moreover, there is no evidence of any kind that has been submitted by any party regarding any conversation between Noel and anyone at Sacoto regarding whether the underinsured motorist coverage limits should be equal to the new liability limits Noel was requesting or whether they should be lower. The plaintiff has submitted the entire deposition transcript of Noel (Pl. Ex. O (no. 141.00), and he was not asked about any conversation about underinsured motorist insurance that day.
As to causation, the defendant Sacoto argues: "Where is a distinct set of events between Sacoto’s discussion with Noel and the Commercial Policy going into effect. After Sacoto communicated Noel’s change to Progressive, Progressive mailed forms directly to Noel, Noel signed them, and Progressive instituted the Commercial Policy. Regardless of whether Sacoto informed Noel of uninsured/underinsured selections, Noel was aware of what coverage he wanted and directed Sacoto to change his policy to his liking. To that end, Noel’s approval of the Consent Form and Progressive’s acceptance of the Consent Form were substantial factors in the selection of uninsured/underinsured coverage" (No. 131.00). Although the defendant may be correct that the actions of Noel and Progressive were substantial factors in producing the shortfall in underinsured motorist coverage that the plaintiff claims has harmed her, the defendant has not ruled out the possibility that its own actions or inactions of this defendant were a substantial factor.
"The mere fact that the act of another person concurs, cooperates or contributes, in any degree whatever in producing the injury, is of no consequence ... [I]n no case is the connection between an original act of negligence and an injury actually broken if a [person] of ordinary sagacity and experience, acquainted with all the circumstances, could have reasonably anticipated that the [direct cause of the harm] might, not improbably but in the natural and ordinary course of things, follow his act of negligence." (Citations omitted.) Ruiz, supra, 315 Conn. at 346, 107 A.3d 381. Simply by raising the prospect that Noel or Progressive’s negligence was a proximate cause, the defendant has not eliminated all factual questions surrounding whether any of its own negligence was a substantial factor.
The defendant also argues that Noel had a duty to read the contents of the declaration pages and the informed consent form, and any failure on his part to do so cuts off proximate causation. The court disagrees.
Our Supreme Court first addressed the defense of failure to read the policy in the context of a claim against an insurance broker in Ursini v. Goldman, 118 Conn. 554, 173 A. 789 (1934). In that case, the court refused to find that the trial court had erred in failing to instruct the jury that the plaintiff policyholder was chargeable, as a matter of law, with actual knowledge of the contents of the policy. 118 Conn. 554, 173 A. at 792-93. Instead, the court held that it was proper to send the question to the jury. Id., 173 A. at 793. The court observed:
The general rule is that where a person of mature years, and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is his duty to read it, and notice of its contents will be imputed to him if he negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a man of reasonable business prudence off his guard in the matter.118 Conn. 554, 173 A. at 792. More recently, Connecticut courts have held that a failure to read the policy is at most comparative negligence by the policyholder, not a bar to the policyholder’s negligence claim against the broker. See, e.g., Office Furniture Rental Alliance, LLC v. Liberty Mutual Fire Ins. Co., 981 F.Supp.2d 111, 121 (D.Conn. 2013) (denying motion for summary judgment); O & G Industries, Inc. v. AON Risk Services Northeast, Inc., 922 F.Supp.2d 257, 268-69 (D.Conn. 2013) (denying motion to dismiss for failure to state a claim); Sipos v. Desel, Superior Court, Docket No. CV93-0042371 (Dec. 28, 1995, Curran, J.) (holding that plaintiff’s who failed to review their policies were 45 percent negligent in bench trial against brokers for gap in coverage); Pinette v. North American Underwriters, Inc., Superior Court, judicial district of Litchfield, Docket No. CV91-0057441 (Aug. 24, 1995) (denying broker’s motion for summary judgment). See also American Building Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d 730, 736-37, 979 N.E.2d 1181 (2012). As the federal court observed in O & G Industries, Inc., "any argument that the CCIP Participants failed to meet their own obligation to review the policies to ensure they met their needs does not obviate Aon’s role in causing the injury." 922 F.Supp.2d at 269. Likewise, in this case, even if Noel did not read the informed consent form or the policy declaration pages that were sent to him, that did not eliminate the possibility that this defendant’s actions or inactions were a substantial factor in bringing about the plaintiff’s injury.
The court is aware that there is caselaw that failure to read an informed consent form is not sufficient to reform a policy in a suit against an insurance carrier. See, e.g., Cartier v. Shuff, Superior Court, judicial district of New Haven, Docket No. CV 15-6053465 (December 29, 2016, Frechette, J.) . Reformation requires a unilateral mistake accompanied by fraud or inequitable conduct. Harlach v. Metropolitan Property and Liability Ins. Co., 221 Conn. 185, 602 A.2d 1007 (1992). That law is inapposite to this negligence claim where the issue is proximate cause.
"The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue. It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995). The defendant has not met this standard. Based on the admissible evidence provided by the defendant with its motion, there is room for reasonable disagreement. Causation is an issue of fact for the jury.
CONCLUSION
For the foregoing reasons, the defendant’s motion is denied on the two grounds it discussed in its legal argument. The court will supplement this Memorandum of Decision once it receives supplemental memoranda from the parties on the issues of standing and duty.