Opinion
No. CV07 500 65 75
January 29, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #128
FACTS
By complaint dated January 11, 2007, the plaintiff, Thomas G. Holmes, filed a seven-count complaint against the defendants, the John M. Glover Agency, Inc. (the Glover Agency) and the Main Street America Group, d/b/a National Grange Mutual Insurance Company (National Grange Insurance), alleging negligence, false statements and misrepresentation in an insurance application, and violations of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq. Holmes is seeking monetary damages, punitive damages and reformation of the insurance policy.
Holmes alleges the following relevant facts in his complaint. On September 29, 2004, Holmes was operating a truck in Connecticut with the authority of its owner and his employer, DeCola Landscaping, LLC (DeCola Landscaping). Holmes' vehicle was struck by a vehicle operated by Philip M. Benanti, resulting in personal injury to Holmes and ensuing medical expenses, lost earnings and loss of earning capacity. Holmes settled his claim against Benanti for $100,000.00, the full amount available under Benanti's insurance policy.
Holmes further alleges that prior to his accident, DeCola Landscaping had instructed the Glover Agency, its insurance agent, to retain its liability and uninsured/underinsured motorist coverage in the amount of one million dollars for the company's eight vehicles, including the vehicle operated by Holmes during the time relevant to this claim. According to the complaint, the Glover Agency issued to DeCola Landscaping a National Grange Insurance policy and represented that the insurance policy provided one million dollars in underinsured motorist coverage. The complaint alleges that "[a]t the time of [Holmes' accident], the plaintiff, Thomas Holmes, was an insured under a policy of insurance issued by the defendant . . . NGM Insurance Company, to his employer, DeCola Landscaping, LLC, the owner of the vehicle that he was operating." This policy was to provide that National Grange Insurance would pay someone in Holmes' situation all personal injury damages that he was legally entitled to recover in excess of the amount he had already received through settlement and up to the aggregate limit of the per person coverage available. Contrary to the Glover Agency's representations to DeCola Landscaping, however, the policy only provided comprehensive coverage on the vehicle Holmes was driving, which did not include coverage for liability, collision, medical benefits or uninsured/underinsured motorist coverage. Holmes has not received the monetary damages that he claims he is entitled to under his employer's insurance policy.
On January 15, 2008, the Glover Agency filed a motion for summary judgment "as to the three counts brought against it by . . . Holmes . . . because [the Glover Agency] did not have a duty to place, procure or otherwise obtain insurance for [Holmes]." The Glover Agency submitted a memorandum of law and affidavit in support thereof. On September 23, 2008 Holmes filed a memorandum of law in opposition to the Glover Agency's motion. Holmes also has submitted two affidavits and numerous exhibits. Each of them filed a reply memorandum. The matter was heard at short calendar on November 24, 2008.
In its memorandum in support of the motion for summary judgment, the Glover Agency appears to identify count two (negligence), count three (fraudulent conduct) and count four (violations of Connecticut Unfair Insurance Practices Act and Connecticut Unfair Trade Practices Act) as being the counts that Holmes has alleged which it is moving for summary judgment on.
On July 9, 2008, National Grange Insurance filed a motion for summary judgment and submitted an identical memorandum of law in support thereof. Holmes has responded to both defendants' motions for summary judgment by its September 23, 2008 objection to both motions. National Grange Insurance moved to join in the Glover Agency's motion for summary judgment on September 24, 2008. In an objection filed October 13, 2008, Holmes opposed National Grange Insurance's joining in the motion for summary judgment because of Holmes' February 25, 2008 motion for default against National Grange Insurance, which was granted by the court on March 24, 2008. Holmes' October 13, 2008 objection to National Grange Insurance's motion for order because of this default was neither granted nor denied in the record. Thus, although the memoranda of law filed by the Glover Agency and National Grange Insurance are identical, this memorandum will only make reference to the Glover Agency's motion for summary judgment and Holmes' response.
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 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 judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn, 99, 111, 639 A.2d 507 (1994). "[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).
Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Our Appellate Court has held that § 17-45 "contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). Moreover, "[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.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
"[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, supra, 89 Conn.App. 679. Uncertified documents may be "admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists . . ." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
In the present case, four affidavits have been filed. The affidavit of John Forlivio, president of the Glover Agency (attached to Glover Agency's motion for summary judgment) and Roberta Troy (Glover Agency's reply to objection to motion for summary judgment, Exhibit A) are both notarized and thus authenticated. The affidavits of Holmes and James DeCola of DeCola Landscaping (Holmes' objection to motion for summary judgment, Exhibits 2, 3) are authenticated as being sworn upon oath. The deposition transcripts submitted by Holmes (Holmes' objection to motion for summary judgment, Exhibits 5, 12, 13) are notarized as being taken under oath and are thus authenticated.
The other insurance policy documents and related correspondence submitted by Holmes (Holmes' objection to motion for summary judgment, Exhibits 4, 6-11, 14) are without certification or authentication. The defendants, however, have not objected to any evidence presented; thus, "any objection is deemed waived and all documents are admissible" within the court's discretion. Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. 03 0476708 (June 25, 2008, Cosgrove, J.). This court, in the past, has taken into consideration uncertified deposition transcripts and documents, in the absence of any objection from the opposing party. See Capella v. Daddio, Superior Court, judicial district of New Haven at New Haven, Docket No. 065007123 (June 12, 2008); Carey v. Geico, Superior Court, judicial district of New Haven at New Haven, Docket No. 065003504 (May 23, 2008); Day v. Trybulski, Superior Court, judicial district of New Haven, Docket No. 034076646 (April 28, 2008, Bellis, J.). Other courts have similarly taken such documents into consideration. See e.g. Daniels v. Ericson, Superior Court, judicial district of New London, Docket No. CV 065001423 (July 17, 2007, Hurley, J.T.R.); American Home Assurance Company v. Scalise, Superior Court, judicial district of New Britain, Docket No, 980491778 (December 18, 2000, Shapiro, J.) [28 Conn. L. Rptr. 647] (where the defendant did not object to the plaintiff's submission of an uncertified, unauthenticated copy of portions of a professional liability insurance policy, the court considered the document, ultimately granting the plaintiff's motion for summary judgment); Grant v. Yale University, Superior Court, judicial district of New Haven, Docket No. 99 0430454 (March 27, 2003, Licari, J.) (Where there was no objection from the opposing party, the court considered uncertified copies of letters, interoffice memorandum, employer's statement of earnings, portions of a collective bargaining agreement, and portions of a deposition transcript); Langner v. Stop Shop, Superior Court, judicial district of New Haven, Docket No. 95 0377385 (January 27, 2000, Licari, J.) (The court considered uncertified, unauthenticated documents filed by both movant and non-movant, where neither party objected to the other party's documents.)
In its initial memorandum of law in support of its motion for summary judgment, the Glover Agency argues that it did not have a duty to obtain insurance for Holmes because it was not his insurance agent. The Glover Agency argues that "the plaintiff was not involved in DeCola's application to [National Grange Insurance] for insurance or was privy to the contract of insurance between DeCola [Landscaping] and [National Grange Insurance]."
It should be noted that much of the memoranda in support of and in opposition to summary judgment discuss third party beneficiary status in the context of a breach of contract action. Holmes does not allege breach of contract in his complaint. The Glover Agency acknowledges in its memorandum in support of summary judgment that breach of contract is not alleged in the present matter, though it argues that some of the principles are nonetheless applicable. As such, certain principles of contract law related to intended beneficiaries are contained in this decision. As breach of contract is not actually alleged, however, I will only use such principles of contract law when they are applicable as persuasive authority in discussion of Holmes' breach of duty negligence claim and third party beneficiary status as related to that allegation.
In his opposition, Holmes argues that although he was not a named party to the contract between DeCola Landscaping and the Glover Agency, he was an employee of DeCola Landscaping and an authorized driver of a listed vehicle on the insurance policy application, and, as such, he was an intended third party beneficiary to the insurance contract. This, Holmes argues, created a duty of the Glover Agency to provide Holmes with underinsured motorist coverage as requested by DeCola Landscaping.
The Glover Agency argues in reply that even if Holmes was a third-party beneficiary of the agreement between DeCola Landscaping and the Glover Agency, the Glover Agency did not owe a duty to Holmes because it did not have a direct or intimate relationship with him.
Holmes responds that it is a question of fact as to whether Holmes was an intended third party beneficiary to the insurance policy and the contract between DeCola Landscaping and the Glover Agency and that there is evidence of such sufficient to deny summary judgment.
"The existence of duty is a question of law and only 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. It is well established that an insurance broker owes a duty to his principal to exercise reasonable skill, care and diligence in effecting the insurance, and any negligence or other breach of duty on his part which defeats the insurance which the broker undertakes to secure will render the broker liable to his principal for the resulting loss . . . Where a broker undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed, and he may be held liable for loss properly attributable to his default. The principal may sue either for breach of the contract or in tort for breach of duty imposed by it." (Citations omitted; internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 564-65, 962 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008). In a tort action, "[t]he nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances of the conduct surrounding the individual . . . Although it has been said that no universal test for duty has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . Furthermore, a duty to use care may arise from a contract, from a statute or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Id., 564 n. 4.
Connecticut appellate authority exists to support the proposition that the standard of care owed by an insurance agent is equal to that owed by an insurance broker. In Tolbert v. Connecticut General Life Ins. Co., 257 Conn. 118, 125, 778 A.2d 1 (2001), an insurance broker and an insurance agent were cited as being treated equally for purposes of the agency relationship between an insured and the insurance agent. See also Cheshire Brass Co. v. Wilson, 86 Conn. 551, 557, 86 A. 26 (1913). "An insurance agent has the duty to exercise reasonable skill, care and diligence to see that his client has proper coverage. Where he undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed." (Citation omitted; emphasis in original; internal quotation marks omitted.) Dimeo v. Burns, Brooks McNeil, Inc., 6 Conn.App. 241, 244, 504 A.2d 557, cert. denied, 199 Conn. 805, 508 A.2d 31 (1986).
Additionally, these terms are used interchangeably in General Statutes § 38a-976(c), where the definition of an insurance agent was modified to share the same definition as an insurance broker by Public Acts 1994, No. 94-160, §§ 23 and 24.
The Glover Agency cites two out of state appellate court cases for the proposition that it did not owe a duty to Holmes because a direct or intimate relationship was required between Holmes and the Glover Agency but was not present here. These two cases hold no precedential value in Connecticut and are nonetheless factually distinguishable from the present matter. Jones v. Hyatt Ins. Agency, Inc., 356 Md. 639, 741 A.2d 1099 (1999), and Napier v. Bertram, 191 Ariz. 238, 954 P.2d 1389 (1998), are distinguishable because they deal with an insurance agent's duty in negligence to procure liability and underinsured motorist coverage for its client, where the plaintiff was the alleged victim of the client's negligence.
"The traditional rule requiring that courts consider the intentions of both parties in construing a contract is well settled . . . (a contract is to be construed according to what may be assumed to have been the understanding and intention of the parties) . . . (in interpreting any contract we must seek the intent of the parties expressed therein) . . . The law regarding the creation of contract rights in third parties in Connecticut is equally well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party beneficiary and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended." (Citations omitted; emphasis in original; internal quotation marks omitted.) Grigerik v. Sharpe, 247 Conn. 293, 311-12, 721 A.2d 526 (1998). "Ordinarily the issue of contractual intent presents a question of fact for the jury, unless the language of the contract is clear and unambiguous . . ." The Catalyst Capital Group, Inc. v. Silver Point Capital, L.P., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001431 (May 4, 2005, Tyma, J.).
See footnote 3.
The Glover Agency has submitted evidence in the form of the affidavits of John Forlivio and Roberta Troy. Holmes has submitted evidence in the form of the affidavits of Thomas Holmes and James DeCola, deposition transcripts of Roberta Troy, Melissa Mallozzi, and Mary Castelot, and insurance policy documents and related correspondence.
Based on the evidence presented in the present matter, there is a genuine issue of material fact as to whether Holmes was an intended beneficiary of the insurance contract between DeCola Landscaping and the Glover Agency and whether DeCola Landscaping and the Glover Agency intended to make Holmes an intended beneficiary of the insurance policy issued by National Grange Insurance. Evidence was submitted indicating the following. Holmes was listed as a driver on the insurance policy application and that he was operating a vehicle that was included on the insurance application which requested underinsured motorist coverage; additionally, an insurance card that Holmes claims was for liability insurance was issued for the vehicle Holmes was driving. Further, National Grange Insurance requested a history of loss runs for the DeCola Landscaping account, which included Holmes' driving history, before it issued the insurance policy to DeCola Landscaping. The binder issued to DeCola Landscaping from the Glover Agency containing the insurance policy for the automobile that Holmes was driving contained underinsured motorist coverage. Finally, the Glover Agency's notice of loss submission to National Grange Insurance indicated that the DeCola Landscaping account had underinsured motorist coverage. A genuine issue of material fact exists as to whether Holmes, as an employee of DeCola Landscaping, was an insured within the terms of the policy which Holmes has submitted as evidence.
As stated by the Glover Agency in its memorandum in support of summary judgment, "[a]n insurance agent `is the agent of the insured in negotiating for the policy.'" (Emphasis added), quoting Ursini v. Goldman, 188 Conn. 554, 559, 173 A. 789 (1934).
Holmes has submitted deposition transcripts and documentary evidence of the insurance policy as evidence in support of his arguments and the Glover Agency has submitted an affidavit of Roberta Troy, the Glover Agency insurance agent who handled the DeCola Landscaping policy, to refute the claim that Holmes was an intended beneficiary of the policy. Averments contained in an affidavit that are merely denials of the allegations in a complaint "are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995). Similarly, the affidavit of John Forlivio, president of the Glover Agency, states that James DeCola was the only person to contact the Glover Agency to apply for the policy, "several vehicles" were provided with underinsured motorist coverage, the application requested comprehensive coverage for the vehicle Holmes was driving at the time of his accident, and the Glover Agency was never notified that coverage on that vehicle was insufficient or inadequate. The averments contained in the affidavit do not negate the genuine issues of material fact presented by Holmes through his exhibits. As such, Holmes has provided an evidentiary foundation that demonstrates the existence of a genuine issue of material fact as to whether DeCola Landscaping and the Glover Agency intended Holmes to be a third party beneficiary of the insurance policy, and thereby to any underinsured motorist coverage.
The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
A further genuine issue of material fact exists as to whether DeCola Landscaping requested underinsured motorist benefits in its insurance application as to the vehicle in question and whether the Glover Agency insurance agent handling DeCola Landscaping's policy requested of National Grange Insurance liability and underinsured motorist coverage or merely comprehensive coverage for the vehicle driven by Holmes. The Glover Agency's computer records, the creation of which is disputed and may have been by the Glover Agency or National Grange Insurance, indicate that underinsured coverage was applied for in the group and individual coverage description of the vehicle. The deposition of Roberta Troy, the Glover Agency insurance agent handling the insurance policy, indicates that underinsured coverage was requested by DeCola Landscaping from the Glover Agency and that the Glover Agency in turn requested it of National Grange Insurance.
At the bottom of the insurance application and in an email from the Glover Agency to the National Grange Insurance underwriter handling the policy, however, there is a notation of "comp only," and this may have been interpreted by National Grange Insurance to mean that no liability or underinsured motorist coverage was requested. As such, there is a genuine issue of material fact as to whether DeCola Landscaping requested underinsured liability insurance of the Glover Agency and thereby National Grange Insurance.
Accordingly, viewed in the light most favorable to the nonmovant, genuine issues of material fact exist that require the denial of the Glover Agency's motion for summary judgment.