Opinion
No. DBD CV-06-5000532 S
Memorandum Filed March 26, 2007
Insurance — Motor Vehicle Policies — Coverage-Operator Is Not "Occupying" a Vehicle, and Therefore Not Covered by a Policy, While Standing Next to a Vehicle Parked on the Shoulder of an Interstate Highway Awaiting the Arrival of a TowTruck. Even assuming there is an "emergency situation" exception to the general rule that a person must be in physical contact with a vehicle to be "occupying" the vehicle within the meaning of the coverage clause of a motor vehicle policy, extending coverage to injuries incurred immediately after exiting or just before entering a vehicle in response to a vehicle-related emergency, the exception applies only to injuries during the course of an immediate emergency. This opinion holds that the exception does not apply, and therefore bars coverage of, injuries to an operator who was struck while standing next to a vehicle parked on the shoulder of an interstate highway awaiting the arrival of a tow truck.
The plaintiff has filed a two-count complaint against the defendant seeking uninsured motorist coverage benefits stemming from an accident on May 17, 2003 which caused the death of its decedent, Sheena America Muscato ("Muscato"). The defendant has filed a motion for summary judgment(#109) claiming there is no genuine issue of material fact between the parties on the issue of whether the defendant is obligated to provide such coverage to the plaintiff. Specifically, the defendant argues that under the terms of the insurance policy and Connecticut case law, the plaintiff is unable to set forth any evidence to establish that she was, at the time of the accident, in physical contact with the insured vehicle in order for the uninsured motorist coverage to be triggered. The plaintiff has filed an objection to the motion (#111) and submitted documentation in support thereof. A reply memorandum has been filed by the defendant (#112). The matter was heard by the court at short calendar on March 12, 2007.
I. FACTS
On the evening of May 17, 2003 Muscato was operating an ice cream truck, owned by Blue Sky BarIce Cream, eastbound on Interstate 84 near Exit 16 in Southbury, Connecticut when she encountered mechanical difficulties which in turn forced her to pull the truck off onto the shoulder of the highway. Because of the situation, she called her sister RuthDiLeone ("DiLeone") at home and asked her to come assist her at the scene. DiLeone and a friend, Thomas Coward ("Coward") came together to assist her and pulled up behind the truck on the shoulder. After determining the problem, DiLeone left to contact a towtruck operator. She returned thereafter, this time pulling up along the passenger (right) side of the truck. Muscato was a few feet away from the truck as DiLeone pulled up. Once DiLeone came to a stop, the decedent walked over to the driver's side door of DiLeone's car to speak to her. At about that time, Coward exited the car and the decedent then walked over to the passenger side of the car. Almost immediately thereafter, a vehicle operated by Ricardo D. Vazquez ("Vazquez")and owned by Carlos D. Vazquez struck the rear of DiLeone's car with such great force that it vaulted DiLeone's car forward striking both the decedent and Coward. Coward and DiLeone were injured. Muscato's injuries were so great that she died at the scene. The state police report issued following the investigation of the accident found that both Muscato and Coward were standing outside of the vehicles at the time DiLeone's car was struck by the Vazquez vehicle.
At the time of the accident, both the Vazquez vehicle owner and operator were uninsured. The ice cream truck which Muscato had been operating was insured by the defendant through policy number ART-333-60-848. It is this policy through which the plaintiff claims uninsured coverage on behalf of its decedent. The policy states in relevant part that coverage is provided for bodily injuries sustained by an "insured" caused by an "accident." The term "insured" is defined to include anyone "occupying" a covered vehicle. In turn, "occupying" is defined as being "in, upon, getting in, on, out or off of a vehicle.
Uninsured Endorsement to the policy § G.2.
II. LAW
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." "It is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732,751, 660 A.2d 810 (1995). "[T]he trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757A.2d 1059 (2000). However, "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Id. "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 379.In considering such a motion, the function of the court is "not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031(1988).
III. DISCUSSION
In support of its motion, the defendant has submitted copies of the insurance policy, deposition testimony of Ruth DiLeone, the state police report regarding the accident and an e-mail printout. (Defendant's Exhibits A-D.) In response to the defendant's motion the plaintiff has submitted copies of Thomas Coward's witness statement to the state police and a portion of Ruth DiLeone's deposition testimony. (Plaintiff's Exhibits 1 and 2.)None of the documents submitted by either party are original documents or certified copies thereof. The parties have asked the court to consider these uncertified documents in ruling on the motion and neither has raised an objection to their submission by the opposing party. It is noted that the exhibits offered by the plaintiff duplicate in part those submitted by the defendant and provide nothing in addition to, or counter to, the evidence offered by the defendant.
Normally, "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).However, our Supreme Court has stated that parties may "knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." Krevis v. Bridgeport, 262 Conn. 813, 824, 81 A.2d 628 (2003). Also, our Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schulberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, where each party has asked the court to consider uncertified documents, and no objection was raised on that basis to their consideration, the court, in the exercise of its discretion, has reviewed the exhibits submitted by each side. Fabrizio v. Bristol Housing Authority, Superior Court, judicial district of New Britain, Docket No. CV 05 5000208 (October 21, 2005, Shapiro, J.).Here, too, the court will consider the documents submitted although they are not originals or certified copies as neither party has raised an issue regarding their trustworthiness.
The defendant argues that based on the factual circumstances of this case, the plaintiff cannot, as a matter of law, establish a prima facie case to meet the physical contact rule set forth in Testone v. AllstateIns. Co., 165 Conn. 126, 328 A.2d 686 (1973). In general that rule states that an "insured" must be in physical contact with an insured vehicle in order to be "occupying" it and thereby trigger uninsured motorist coverage, Id., 133-34. In Testone our Supreme Court addressed an uninsured motorist coverage claim under an insurance policy with language substantially similar to that in the present case. There the policy defined "occupying" as "in or upon or entering into or alighting from" the vehicle and involved a plaintiff who was only two or three feet from the vehicle at the time of the accident. Id., 131, 134. Though presented with the opportunity to do so, the court elected not to eliminate the necessity of physical contact with the insured vehicle in order to establish uninsured coverage under the terms of the policy. This rule has been subsequently considered and followed in Gomes v. Massachusets Bay Ins. Co., 87 Conn.App. 416, 866A.2d 704, cert. denied, 273 Conn. 925, 871 A.2d 1031(2005), and Allstate Insurance Co. v. Howe, 31Conn.App. 132, 623 A.2d 1031, cert. denied, 226Conn. 911, 628 A.2d 983 (1993). In Gomes, the Appellate Court was urged to replace the physical contact rule with a "use and proximity" test for determining on a case-by-case basis whether an individual was occupying a covered vehicle. Gomes v. Massachusetts Bay Ins. Co., supra, 87 Conn.App. 431. As in Testone, the Gomes court declined to expand the physical contact rule and rejected the use and proximity test. Id., 435.
The "use and proximity" test calls for the term "occupying" to be "interpreted to include any situation in which an[individual] is injured while within reasonable physical proximity to a covered motor vehicle and actively engaged in the use of that vehicle." Games v. Massachusetts Bay Ins. Co., supra, 87 ConnApp. 431.
In the present case, the evidence presented to the court establishes without question that Muscato was outside the ice cream truck (the insured vehicle) at the time of the accident. There is no evidence that she was in physical contact with the truck when she was struck as a result of the collision caused by the Vazquez vehicle. Plaintiff, while acknowledging the physical contact rule, argues that there is an exception to the rule for emergencies. For this proposition, plaintiff cites Katz v. Ocean Accident Guarantee Corporation, 202 Misc. 745, 112 N.Y.S.2d 737 (1952), which involved an operator who was in the act of locking her car when she suddenly perceived another vehicle approaching her. She ran to the rear of her car to avoid the oncoming vehicle but was injured when the other vehicle struck her car and pinned her against a vehicle behind her own. The plaintiff has also cited Quimby v. Biagioni, Superior Court, judicial district of Waterbury, Docket No. CV 01 0164300 (August 19, 2004, Matasavage, J.) [37 Conn. L. Rptr. 665]. In that case the plaintiffs vehicle, in which he was a passenger, became stuck in the snow. Id. The plaintiff and the operator got out to try and dislodge the car from the snow and managed to do so. While the plaintiff walked around the car to the passenger side door to get back in, he was struck by an oncoming vehicle. At the time he was struck he was approximately one foot from the door. Citing Allstate Ins. Co. v. Howe, supra, the trial court found that the plaintiff was in the process of getting into the insured auto as defined under the terms of that policy. Id.
The plaintiff's reliance on these cases is misplaced. Katz is a New York trial court decision and has no precedential value in this jurisdiction. Moreover, even if it did have precedential value, Katz is distinquishable in that the plaintiff there was faced with an immediate emergency. She was in contact with the vehicle and tried to move away from it in light of herawareness of the impending impact from another vehicle. As for Quimby, that too is a trial court decision. There the plaintiff was struck while attempting to return to, and enter, an insured vehicle. In the present case there is nothing in the evidence to indicate Muscato, or anyone else at the scene, was aware of an impending collision thereby creating an emergency situation. Nor was there any evidence that she had the intention of returning to her truck or that she was in the process of attempting to do so.
The plaintiff has failed to supply the court with any countervailing evidence relative to the defendant's motion. As noted above, Appleton v. Board of Education, supra, 254 Conn. 209, calls for a party opposing a summary judgment motion to provide evidence to demonstrate the existence of a genuine issue of material fact. Practice Book § 17-45 requires an adverse party to file any "opposing affidavits and other documentary evidence" it wishes to submit five days before the short calendar hearing on the motion. Based on the evidence submitted by the parties, the failure of the plaintiff to submit any evidence to contradict that offered by the defendant makes it impossible for a fair and reasonable person to conclude in any way other than to find in favor of the defendant. Miller v. United Technologies Corp., supra, 233 Conn. 751. "If the affidavits and other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has me this burden of proof." (Internal quotation marks omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 569,636 A.2d 1377 (1994).
IV. CONCLUSION
Given the documentary evidence submitted by the defendant and lack of sufficient countervailing evidence submitted by the plaintiff, the defendant has met its burden of proof to show that there is no genuine issue of material fact between the parties. Accordingly, the defendant's motion for summary judgment is granted.