Opinion
HHDCV176080559S
07-16-2019
Richard J. KUSMIREK, et al. v. SAFECO INSURANCE COMPANY OF ILLINOIS
UNPUBLISHED OPINION
OPINION
Cesar A. Noble, J.
Before the court in this claim for automobile insurance policy benefits are the parties’ cross motions for summary judgment. The defendant, Safeco Insurance Company of Illinois (Safeco) asserts that it is not liable to the plaintiff because the $250,000 limits of uninsured motorist coverage provided by it have been reduced to zero by the application of a provision of the policy reducing the limits of liability by all sums paid or payable because of bodily injury under any workers’ compensation law. The plaintiffs, Richard and Edyta Kusmirek, request a "judgment ruling that conversion coverage exists" and that judgment enter as to the first and fourth counts of the complaint. The court concludes that the plaintiff’s complaint asserts only a claim for uninsured motorist coverage and the declarations page of the policy clearly affords the plaintiffs only standard uninsured and underinsured motorist coverage. Accordingly, Safeco, having established no genuine issue of material fact exists as to the terms of its policy and that the sums that may be applied to reduce its policy limits are greater than the policy limits, is entitled to summary judgment.
Richard and Edyta Kusmirek will be jointly referred to as the plaintiffs and individually by their first names.
The following facts and procedural history are relevant to this decision. The present action was commenced by a six-count complaint dated June 26, 2017. The first and fourth counts of the complaint set out claims for uninsured motorist coverage on behalf of Richard and Edyta Kusmirek, respectively. The remaining counts assert extra contractual damage claims that are not at issue in the present motion. In the first count, Richard alleges that while operating his motor vehicle on September 28, 2015, on Interstate 91, he was hit by an unidentified vehicle. The resulting collision, caused by the negligence of the unidentified driver, resulted in very significant injuries including multiple fractures, occlusion of the left middle cerebral artery and injury to the left carotid artery requiring surgical intervention including a cranioplasty, MRSA, global aphasia, speech impediments, right sided weakness, convulsions and seizures. Relevantly, paragraphs 11 of the first count alleges that Richard was an insured person under a policy of insurance issued by Safeco which "had uninsured motorist coverage of $250,000 for each person and $500,000 for each incident." Paragraph 12 continues that Safeco "agreed to provide uninsured motorist coverage to covered persons insured under" the policy. Paragraph 16 alleges that Richard put Safeco "on notice of his uninsured motorist claim."
The second and third counts allege bad faith and violations of the Connecticut Unfair Insurance Practices Act, § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act, § 42-410a et seq. on behalf of Richard. The fifth and sixth counts set forth the same theories of liability on behalf of Edyta who claims loss of consortium. By order dated December 18, 2018, the court granted a motion to bifurcate these claims from the first and fourth counts. Although Safeco seeks summary judgment on these claims, the court will not act as to the remaining counts until the parties are heard on whether further discovery is needed or warranted.
Safeco asserts in its motion for summary judgment that it is entitled to judgment because the policy under which "uninsured motorist coverage" is sought contains a provision reducing the limits of coverage by all sums paid or payable because of the bodily injury under any workers’ compensation law and in fact Richard has been paid at least $187,806.25 in workers’ compensation benefits and the sum of $981,960.00 is payable over the next 20 years. Because the total of these amounts are more than the policy limits of $250,000, it is the view of Safeco that it has no liability under the policy. In support of its motion, Safeco provided an authenticated copy of the declarations page and contract of insurance, a Workers’ Compensation Stipulation executed by Richard and his employer, UTC/Pratt & Whitney and its insurer, AIG Claims and a payment history produced by AIG.
Although not specifically articulated in any of the pleadings it is clear from the offer of a workers’ compensation stipulation that Richard’s operation of the motor vehicle at the time of the accident arose out of and was in the course of his employment.
"A stipulation is a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability." Muldoon v. Homestead Insulation Co., 231 Conn. 469, 479-80, 650 A.2d 1240 (1994) citing J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) pp. 207-08.
The plaintiffs do not dispute that the application of the coverage reductions provision would eliminate liability under the policy. Instead, they assert that Richard actually applied for underinsured motorist conversion coverage. In support of this assertion, the plaintiff produced the affidavit of Edyta that states, notwithstanding the fact that the Automobile Policy Declarations page only identifies coverage of "Uninsured/Standard Underinsured Motorist" with limits of $250,000 per person and $500,000 each accident, her husband applied for- and it was their expectation that he had purchased- underinsured motorist conversion coverage. In the estimation of the plaintiffs, their purported application for underinsured motorist conversion coverage entitles them to such coverage even though it is not listed on the declarations page. The plaintiffs provided the court with the affidavit of Edyta, a copy of the pertinent portions of the policy and portions of the application. Additional facts will be developed as necessary.
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "[C]onstruction of a contract of insurance presents a question of law for the court." Gabriel v. Mount Vernon Fire Ins. Co., 186 Conn.App. 163, 167, 199 A.3d 79 (2018).
"An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract. In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the insured expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. Under those circumstances, the policy is to be given effect according to its terms. When interpreting an insurance policy, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result." (Citations omitted, emphasis added, internal quotation marks omitted.) New London County Mutual Insurance Co. v. Sielski, 159 Conn.App. 650, 656, 123 A.3d 925 (2015).
The field of automobile liability insurance is extensively regulated by both statutes and administrative regulations. See Giglio v. American Economy Insurance Co., 278 Conn. 794, 809, 900 A.2d 27 (2006). The statutory scheme, supplemented in detail by regulations adopted by the Commissioner of the Department of Insurance, mandates the provision in all motor vehicle insurance policies of uninsured motorist coverage and underinsured motorist coverage as well as the option to purchase underinsured motorist coverage. The difference between these types of coverage is central to the parties’ dispute.
The easily discerned meaning of "uninsured" requires no definition in the statues. An "underinsured motorist vehicle" is defined as a "motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy." General Statutes § 38a-336(e). "Underinsured motorist conversion coverage" is statutorily defined as a "motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person." General Statutes § 38a-336a(e).
General Statutes § 38a-336(a)(1)(B) does, however, include in the definition of uninsured motor vehicles those for which the insurer "becomes insolvent prior to payment" of damages.
Conversion coverage differs in several respects from uninsured and underinsured coverage. The difference most pertinent to this decision is that, unlike the latter coverages, an insurer’s exposure to pay for uninsured motorist conversion coverage benefits as measured by the policy’s limits of liability is not subject to reduction. The conversion statute provides that "in no event shall the underinsured motorist coverage be reduced on account of any payment by or on behalf of the tortfeasor or by any third party." § 38a-336a(c). In contrast, the regulations adopted by the Commissioner of the Department of Insurance pursuant to General Statutes § 38a-334(a), permit insurers to include provisions in their automobile policies that "provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury [or] (B) paid or are payable under any workers’ compensation law ..." Reg.s, Conn. State Agencies § § 38a-334-6(d)(1)(A) and (B). Safeco has included just such a provision in its policy. Part C of its policy, which addresses uninsured/underinsured motorists coverage, provides under the heading of Limits of Liability that "C. The limit of liability shall be reduced by all sums: ... 2. Paid or payable because of the bodily injury under any workers’ compensation law." Thus, because one type of coverage prohibits any reduction from the limits of liability and the other permits such a reduction for the workers’ compensation benefits paid or payable to Richard Kusmirek, the ability of the plaintiffs to recover under the Safeco policy is entirely dependent on the type of underinsured motorist coverage provided.
Section 38a-334(a) provides in pertinent part: "The Insurance Commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance ... registered or principally garaged in this state. Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies [and] shall make mandatory the inclusion of bodily injury liability, property damage liability and uninsured motorist’s coverages ..."
The regulation provides specifically that "[t]his subsection shall not apply to underinsured motorist conversion coverage ..." Reg.s, Conn. State Agencies § § 38a-334-6(d)(1)(4).
The plaintiffs’ argument that they are entitled uninsured motorist conversion coverage is not availing for two reasons. First, they simply have not pled any claim to such coverage. A careful review of the allegations of their complaint reveals that the plaintiffs have pled only a claim for uninsured motorist benefits. Nowhere in the complaint do the plaintiffs allege that they were provided, and are claiming, underinsured motorist conversion coverage.
It is axiomatic that the allegations of a plaintiff’s complaint control his or her right to recover. Gerald W. v. Commissioner of Correction, 169 Conn.App. 456, 465 (2016). "[I[t is clear that the court is not permitted to decide issues outside of those raised in the pleadings." Petrov v. Gueorguieva, 167 Conn.App. 505, 516, 146 A.3d 26, 34 (2016). In the present case, the plaintiffs raise a claim for underinsured motorist conversion coverage through the content of Edyta’s affidavit. "Affidavits are not pleadings, however, and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of a counter-affidavit. The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Citation omitted, internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136 (2006) (claims of continued trespass triggering continued course of conduct doctrine raised in affidavit insufficient to defeat summary judgment based on statute of limitations where defenses not raised in pleadings).
Even if the plaintiffs were to have pled a claim for underinsured motorist conversion coverage, their claim that the application raises a question of material fact as to the plaintiffs’ purchase of underinsured motorist conversion coverage must fail. It is true that the parties may agree to incorporate the terms of the insurance application as part of the insurance contract. see Dobuzinsky v. Middlesex Mutual Assurance Co., 49 Conn.App. 398, 405, 714 A.2d 702, 706 (1998) (where insurance application provided "if accepted, [the application] shall become a part of the contract of insurance ..." the application is itself made part of the insurance contract by reference). However, no such language is present in the application at issue in the present case. The plaintiff relies upon language in a form entitled "Informed Consent Form Uninsured Motorist Coverage" that discusses the amounts and types of different uninsured motorist coverage available. In the paragraph addressing the amount of coverage the document provides that "[i]n any case, UM/UIM coverage is limited to the limits for this coverage shown in the application, for all damages for bodily injury resulting from one accident." Accordingly, to the extent that the application incorporates by reference any term contained in it, the incorporation is explicitly limited by the language of the application to the "limits for this coverage shown in the application." The plaintiffs do not point to any other language in either the application or the policy that make any other part of the application part of the policy. To the contrary, the "UM Conversion UIMC Coverage" form contains the explicit language that "[o]nly the policy provides a complete description of the coverages and their limitations." The relevant section of the policy, Part C- Uninsured/Underinsured Motorists Coverage; "Underinsured Motorists Conversion Coverage," provides that "If the Declarations indicates that Underinsured Motorists Conversion Coverage applies, the following provisions apply" ..." To reiterate, the declarations page does not indicate that Underinsured Motorists Conversion Coverage applies.
Significantly, this application form defines "standard Underinsured Motorist coverage (UIM), provides that this coverage can be converted to Underinsured Motorist Conversion (UIMC) Coverage" which it also defines. The form thus clearly distinguished between the two. As previously stated the declarations page refers not to underinsured motorist conversion coverage but standard underinsured motorist coverage.
The plaintiffs also asserted, emphatically, at oral argument that the "UM Conversion UIMC Coverage" form contains a box checked off for conversion coverage. The court’s careful review reveals that no such box is checked.
In conclusion, because the plaintiffs’ have not pled a claim for uninsured motorist conversion coverage their motion for summary judgment is denied. Because Safeco has established the absence of any questions of material fact that it is entitled to a reduction of workers’ compensation payments of an amount greater than the policy limits of liability, Safeco’s motion for summary judgment is granted as to the first and fourth counts.