Opinion
No. CV 02-0168753 S
March 24, 2005
MEMORANDUM OF DECISION
This matter is before the court on the defendant, Hartford Casualty Insurance Company's motion for summary judgment, dated October 5, 2004. The defendant claims that given the underinsured motorist coverage available under the subject policy of insurance, the plaintiff does not have a viable underinsured motorist claim.
The following facts necessary to decide this motion are undisputed. On or about December 7, 1995, the plaintiff, Joseph LaChance, was a police officer in the city of Waterbury, and was operating a police cruiser in the city when his vehicle collided with a vehicle operated by a nonparty, Adam J. Krawczynski. The plaintiff sustained injuries and losses in the accident, which the plaintiff alleges were caused by Krawczynski's negligent and careless operation of his motor vehicle. At the time, the plaintiff was insured under an insurance policy that was issued by one of the defendants, Nationwide Insurance Company of America (Nationwide), and Waterbury was insured under an insurance policy issued by the other defendant, Hartford Casualty Insurance Company (Hartford Casualty). On the face of the Hartford Casualty policy, Hartford Casualty's liability limit is $1 million per accident and its financial obligation for accidents involving underinsured motorists is $40,000. The evidence submitted with this motion does not indicate that Waterbury signed any form consenting to the latter limit.
The plaintiff filed a two-count complaint on December 10, 2001. Count one is a claim for underinsured motorist benefits against Nationwide, and count two is a claim for underinsured motorist benefits against Hartford Casualty. On February 14, 2002, Hartford Casualty filed its answer in which it admits that the plaintiff was operating a city-owned vehicle at the time of the accident, but denies that it owes the plaintiff underinsured motorist benefits. In its answer, Hartford Casualty also asserts four special defenses, including that: the plaintiff's claims are subject to the $40,000 limit of coverage available under the policy, and Hartford Casualty is entitled to reduce the policy limit by whatever amount is paid to the plaintiff by or on behalf of the tortfeasor. On February 15, 2002, the plaintiff filed a reply in which he denied each and every allegation of Hartford Casualty's special defenses.
On October 7, 2004, Hartford Casualty filed a motion for summary judgment, accompanied by the following: a memorandum of law in support thereof; the plaintiff's response to Hartford Casualty's interrogatories; the affidavit of Julie Marich, a claims specialist with The Hartford; the insurance policy Hartford Casualty issued to Waterbury that was in effect at the time of the accident; and the affidavit of Douglas P. Rinaldi, risk manager for Waterbury. On October 20, 2004, the plaintiff filed an objection to the motion for summary judgment accompanied by a memorandum of law in support thereof. On October 28, 2004, Hartford Casualty filed a reply memorandum. Motion arguments were heard on the short calendar on December 6, 2004.
According to Hartford Casualty's memorandum of law, it is a subsidiary of The Hartford.
Douglas P. Rinaldi, risk manager for Waterbury, attests in his affidavit that a subsidiary of The Hartford, Twin City Fire Insurance Company (Twin City), actually renewed the policy with Waterbury. Based upon Rinaldi's affidavit and upon examination of the policy submitted to the court, it appears that indeed Twin City was the insurance company that renewed the policy with Waterbury.
I.
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 . . . 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 is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . ." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
II.
At issue in this motion for summary judgment is General Statutes § 38a-336(a)(2), which states: "Notwithstanding any provision of this section to the contrary, 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 which 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 which 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 limit of liability contained in a policy must not be less than $20,000 for personal injury to, or death of, one person, and $40,000 for personal injury to, or death of, more than one person. See [General Statutes] § 14-112 . . ." J. Berk M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (3d Ed. 2004) § 2.2, p. 146.
The plaintiff and Hartford Casualty disagree as to whether the statute required Hartford Casualty to obtain a signed informed consent form from Waterbury in order to limit Hartford Casualty's financial obligation for underinsured motorist claims to $40,000. Hartford Casualty cites to McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, 79 Conn.App. 800, 831 A.2d 310, cert. denied, 266 Conn. 927, 827 A.2d 802 (2003), to argue that, notwithstanding § 38a-336(a)(2), it was not required to obtain a written consent form from Waterbury in order for Waterbury to obtain $40,000 of underinsured motorist insurance coverage. Hartford Casualty also argues that the phrase "WHICH PROTECTS CT Page 5395 YOU AND YOUR FAMILY" makes clear that the statute requires that an insurer obtain a written waiver from individuals, and not that an insurer is required to obtain a written waiver from corporations or municipalities. Furthermore, it points out that in his affidavit, Rinaldi attests that he elected the underinsured motorist limit of $40,000 on behalf of the city in regard to the policy at issue. Accordingly, it argues that the policy it issued to Waterbury has an uninsured and underinsured motorist limit of $40,000. In addition, Hartford Casualty contends that because Krawczynski, the tortfeasor, was insured by Metropolitan Insurance under a policy that had a liability limit of $50,000 and the evidence shows that the plaintiff settled his claim against Krawczynski for $50,000, Krawczynski was not an underinsured motorist. The plaintiff counters that he is entitled to underinsured motorist benefits under the Hartford Casualty policy notwithstanding the limit stated on the face of the policy because Waterbury did not consent to this limit in writing. Thus, the court must decide how McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, supra, 79 Conn.App. 800, is to be interpreted.
General Statutes § 38a-336(b) provides in relevant part: "An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage . . ."
The plaintiff would presumably argue that because Waterbury did not sign a consent form, the general $1 million liability limit in the policy also applies to underinsured motorist claims.
In McDonald, the plaintiff driver was involved in a car accident while she was driving a car that was owned by her employer, Cumberland Farms, Inc. (Cumberland). Id., 801-02. The driver and her husband filed an action against the tortfeasor, which they settled for the limit of the tortfeasor's policy, but that amount was not sufficient to cover the plaintiffs' damages. The plaintiffs then commenced an action against the defendant, the insurer of Cumberland's vehicles. Id. The defendant filed a motion for summary judgment in which it made the same argument that Hartford Casualty makes in this case, i.e., that Cumberland had elected to reduce the limit on its underinsured motorist policy to $20,000, and that because the plaintiffs previously received $20,000 from the tortfeasor, they were not entitled to any benefits under the policy. The trial court granted the motion. Id., 803.
One of the arguments that the plaintiffs raised on appeal is similar to the argument that the plaintiff here relies upon, i.e., that Cumberland did not effectively reduce the limit on its underinsured motorist coverage. Id., 803-04, The plaintiffs pointed out that although Cumberland signed an informed consent form, the form did not comply with the requirement of § 38a-336(a)(2) in that it did not specify the premium cost for each of the coverage options available, as required by § CT Page 5396 38a-336(a)(2)(C).
The Appellate Court agreed with the trial court's finding that it was clear that Cumberland intended to carry uninsured and underinsured motorist coverage with limits of $20,000-$40,000; id., 805; as well as with the trial court's statement that "[s]trict adherence to the procedures mandated by § 38a-336(a)(2) in order to reduce [uninsured motorists-underinsured motorists] coverage simply is not required in the context of commercial fleet insurance." (Internal quotation marks omitted.) Id. The Appellate Court reasoned that "[i]t is highly likely . . . that the . . . personnel who negotiated the insurance provisions of the [insurance] contract . . . were fully aware of the relative cost of uninsured motorist coverage and the implications of their decision."
"The purpose of § 38a-336(a)(2), including the provision requiring that insurers inform consumers of the premium cost for each of the underinsured motorists coverage options available, is to facilitate consumers' decision-making process and to ensure that they give informed consent to reduced coverage. We do not believe that a company such as Cumberland Farms, Inc., which insures a fleet of vehicles to carry on a large commercial enterprise, falls within the class of consumers that the legislature sought to protect when it mandated the disclosure of premium costs under § 38a-336(a)(2). Consequently, the fact that the informed consent form in the present case did not contain a statement of premium costs does not defeat the election by Cumberland Farms, Inc. to reduce its underinsured motorists coverage limits to $20,000." McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, supra, 79 Conn.App. 807.
The plaintiff argues that McDonald is distinguishable from the present case because, in McDonald, Cumberland in fact signed a consent form agreeing to limit its underinsured motorist coverage, albeit a form that omitted one statutory requirement, while in this case, there is no evidence that Waterbury signed any consent form.
This court believes that the plaintiff's assertion is correct, and that Hartford Casualty's contention that the McDonald decision means that it was completely excused from the writing requirement of § 38a-336(a)(2) is overly broad and is not consistent with the general principles that underlie the statutes pertaining to uninsured and underinsured motorists. For example, in Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999), the court said: "An insurer's responsibility to provide uninsured and underinsured motorist coverage is mandatory, not discretionary . . . We previously have concluded, moreover, that `an insurer may not, by contract, reduce its liability for . . . uninsured or underinsured motorist coverage,' except as authorized by § 38a-334-6 of the Regulations of Connecticut State Agencies." Id. In Gomes v. Massachusetts Bay Ins. Co., 87 Conn.App. 416, 426, 866 A.2d 704 (2005), the court explained that "our uninsured and underinsured motorist statute is remedial in nature and designed to protect people injured by [uninsured and underinsured] motorists remedial statutes should be construed liberally in favor of those whom the law is intended to protect." (Internal quotation marks omitted.) "[T]he purpose of [un]insured motorist coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile . . ." (Internal quotation marks omitted.) Willoughby v. New Haven, 254 Conn. 404, 436, 757 A.2d 1083 (2000).
While the Appellate Court has held that a municipality does not have to comply with the consent form requirement, it did so only because the particular municipality was self-insured and "it would make no sense for us to apply the written request requirement literally. [U]pon electing to become a self-insurer, [the city] not only became an insurer . . . but also, the functional equivalent of a named insured . . . A literal reading of the statute would have required the city, wearing its hat as insured, to file a written request with itself wearing its hat as insurer. That reading is untenable." (Citation omitted; internal quotation marks omitted.) Boynton v. New Haven, 63 Conn.App. 815, 828, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001). See Piersa v. Phoenix Ins. Co., 82 Conn.App. 752, 753-62, 848 A.2d 485, cert. granted on same grounds, 269 Conn. 916, 852 A.2d 744 (2004).
Furthermore, as stated by the court in McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA, supra, 79 Conn.App. 805, "[o]ne of the guiding principles underlying the requirement of a written rejection of higher limits is to assure that the rejection is the product of a purposeful and knowing decision . . ." (Emphasis added; internal quotation marks omitted.) Id. Here, Hartford Casualty does not assert either that it issued, or that Waterbury signed an informed consent form reducing the city's uninsured and underinsured coverage. An issue of material fact exists as to whether there is any writing between Hartford Casualty and the city of Waterbury that could satisfy the provisions of § 38a-336(a)(2) as interpreted by McDonald.
Since there is a genuine issue of material fact and for the above reasons, the motion for summary judgment is denied.
Matasavage, J.