Opinion
No. HHB CV 03 0523027 S
August 10, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#131)
I BACKGROUND
In this personal injury action, which arose from a motor vehicle accident, the defendant, Allstate Insurance Company (Allstate), has moved for summary judgment as to the sixth count of the plaintiffs' complaint. Allstate asserts that the plaintiff, Shannon Laderoute, has received compensation by or on behalf of the persons responsible for the accident, in excess of the underinsured motorist coverage limit of the insurance policy which covered her, thereby precluding her underinsured motorist claim.
On September 2, 2003, Denise Laderoute, individually and as parent and next friend to Shannon Laderoute, and Shannon Laderoute (plaintiff), filed a six-count complaint against the defendants, Justin Cullen (Cullen), Kostantina Argitakos (Argitakos), the Connecticut Junior Republic Association, Inc. (association), and Allstate. According to the allegations of the complaint, on August 5, 2002, the plaintiff was a passenger in an automobile driven by Justin Cullen, and the plaintiff suffered injuries when that car collided with a vehicle driven by Argitakos and owned by the association. In the first five counts, the plaintiffs raise allegations of negligent and reckless conduct by Cullen and Argitakos. In the sixth count of the complaint, the plaintiffs allege that Cullen's insurance policy coverage is insufficient to compensate the plaintiff, that the plaintiff herself is covered by an underinsured motorist policy issued by Allstate, and that Allstate has not paid compensation to the plaintiff for her injuries.
On May 1, 2006, Allstate filed a motion for summary judgment as to the plaintiff's underinsured claim. Allstate's motion is accompanied by a memorandum of law and the following exhibits: a copy of a general release issued to Cullen and his insurance carrier on behalf of Shannon Laderoute, dated June 30, 2005; a copy of a withdrawal of the complaint as to Cullen, dated July 1, 2005; a copy of a general release issued to Argitakos, the association, and their insurance carrier on behalf of Shannon Laderoute and Denise Laderoute, dated June 30, 2005; a copy of a withdrawal of the complaint as to Argitakos and the association, dated July 1, 2005; and certified portions of the Laderoute insurance policy. A review of the case file indicates that the withdrawal as to Argitakos and the association was filed on January 13, 2006 (see #126); however, the file does not indicate that the withdrawal as to Cullen has been filed.
On May 31, 2006, the plaintiff filed an objection to and a memorandum of law in opposition to Allstate's motion for summary judgment. The plaintiff has not objected to the court's consideration of the exhibits provided by Allstate.
The court heard oral argument concerning the motion on June 19, 2006. Additional references to the facts are set forth below.
II STANDARD OF REVIEW
"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 moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 33-34, 900 A.2d 513 (2006).
III DISCUSSION
Allstate moves for summary judgment as to the sixth count of the complaint, contending that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Specifically, Allstate argues that the plaintiff has settled with all tortfeasors and has received compensation from them or on their behalf in excess of the underinsured policy coverage limit in the Laderoute insurance policy. In response, the plaintiff argues that material issues of fact remain regarding the apportionment of liability between Argitakos and Cullen, and that such apportionment must be determined before ascertaining whether the plaintiff is owed compensation under her underinsured coverage.
Allstate also argues that summary judgment is warranted since the Argitakos vehicle was not underinsured at the time of the accident. Allstate contends that that vehicle had at minimum $175,000.00 in liability coverage, since that is the amount which was paid to settle and release the plaintiff's claims against Argitakos and the association. Allstate has not provided evidence as to the extent of coverage applicable to the Argitakos vehicle. To assume that a minimum of coverage is reflected by the consideration reflected in the release would be an exercise in speculation. Accordingly, the court does not consider this argument.
"`The purpose of [underinsured motorist] coverage simply is to provide an insured who is injured in an accident with the same resources he would have had if the tortfeasor had liability insurance equal to the amount of the insured's uninsured/underinsured motorist coverage.' . . . J. Berk M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (3d Ed. 2004) § 1.3, p. 23; see also Doyle v. Metropolitan Property Casualty Ins. Co., 252 Conn. 79, 85, 743 A.2d 156 (2000). The purpose is not `to guarantee full compensation for a claimant's injuries . . .' Florestal v. Governmental Employees Ins. Co., 236 Conn. 299, 310, 673 A.2d 474 (1996). Indeed, underinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor . . ." (Emphasis in original; internal quotation marks omitted.) Dimmock v. Allstate Insurance Co., 84 Conn.App. 236, 241-42, 853 A.2d 543, cert. denied, 271 Conn. 923, 859 A.2d 577 (2004).
The Laderoute insurance policy provides for uninsured/underinsured motorist coverage with policy limits of $100,000.00 for each person and $300,000.00 for each accident. It is undisputed, therefore, that the applicable limit pertaining to the plaintiff's underinsured claim is $100,000.00. In addition, the policy provides, in pertinent part, concerning Limits of Liability, at page 14,: "In the case of accidents involving a legally liable underinsured motorist, the damages payable will be reduced by: 1. all amounts paid by or on behalf of the owner or operator of the underinsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy."
Allstate asserts that there is no genuine issue of fact that the plaintiff has settled with both tortfeasors as to liability and for a sum in total in excess of the $100,000.00 limit. In the plaintiff's memorandum of law in opposition, pages 2-3, the plaintiff states: "The plaintiff settled liability claims with both tortfeasors in the total amount of $187,000.00, obtaining $12,000 from Cullen's carrier." The general release of Argitakos, the association, and their insurance carrier states that $175,000.00 was paid in consideration for the release. Allstate argues that the settled-for sum constitutes "amounts paid by or on behalf of the owner or operator of the underinsured auto or anyone else responsible," as provided in the policy, which should therefore be reduced from the "damages payable" under the policy. As a result of such a reduction, no damages would be payable to the plaintiff under the policy.
General Statutes § 38a-336(e) defines an "underinsured motor vehicle" 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 against which claim is made . . ." Thus, to determine whether the underinsured policy provision is triggered, the policy limit of the tortfeasor is compared to the underinsured policy limit of the insured. See Covenant Ins. Co. v. Coon, 220 Conn. 30, 37, 594 A.2d 977 (1991). In the present case, as stated in the release provided to him and to his insurance carrier, Cullen's policy limit is $20,000.00 per person and the plaintiff's underinsured limit is $100,000.00. The issue, however, is whether the settled-for amount may be set off against the damages payable under the Laderoute policy.
General Statutes § 38a-336(b) provides, in pertinent 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." "An insurance policy may provide for a reduction in the policy's stated limits to the extent that an insured has been compensated from other sources for damages sustained during a compensable accident. `The limit of the insurer's liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been . . . paid by or on behalf of any person responsible for the injury . . . paid or are payable under any workers' compensation law, or . . . paid under the policy in settlement of a liability claim.' Regs., Conn. State Agencies § 38a-334-6(d)(1)." Savoie v. Prudential Property Casualty Ins. Co., 84 Conn.App. 594, 600-01, 854 A.2d 786, cert. denied, 271 Conn. 932, 859 A.2d 930 (2004). Thus, for instance, in Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, our Supreme Court directed that the available coverage be reduced by the amount already paid to the victim on behalf of a tortfeasor. See id., 38.
Nevertheless, the plaintiff argues that without a finding as to the apportionment of liability among the tortfeasors in this case, it is inappropriate to render a summary judgment. In support of this proposition, the plaintiff refers the court to Garcia v. ITT Hartford Ins. Co., 72 Conn.App. 588, 805 A.2d 779 (2002) and Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001). In Garcia v. ITT Hartford Ins. Co., supra, the plaintiff/passenger settled with an identified driver, but sought to proceed to trial against the uninsured motorist carrier (which covered the driver of the vehicle in which she was riding), as a surrogate for an unidentified driver. See id., 72 Conn.App. 589-90. Before trial, however, the defendant-insurer moved for summary judgment on the ground that there was no genuine issue of material fact that the plaintiff had settled with the identified driver in an amount exceeding the uninsured policy limit issued by the defendant-insurer. See id., 590.
In Garcia v. ITT Hartford Ins. Co., supra, the Appellate Court framed the issue as "whether, in a multiple tortfeasor context, the injured party is precluded as a matter of law from recovering under an uninsured motorist's policy where she has settled with one tortfeasor for an amount greater than the uninsured motorists coverage against which she is claiming." Id., 594. The court went on to state: "We find the recent decision in Martanis v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. 0065733 (February 8, 2002) ( 31 Conn. L. Rptr. 488), to be persuasive . . . Denying the defendant's motion for summary judgment, the Martanis court concluded . . . that the apportionment analysis of Collins [v. Colonial Penn Ins. Co., supra, 257 Conn. 718] precluded a setoff, and, in the alternative, that any setoff should be made only after a fact finder assesses damages." Garcia v. ITT Hartford Ins. Co., supra, 72 Conn.App. 594-95.
The present case, however, is distinguishable, as the plaintiff herself acknowledges that she has settled her liability claims against all the tortfeasors. That is, unlike in Garcia v. ITT Hartford Ins. Co., supra, a potential award against a surrogate for an unidentified tortfeasor is not at issue.
Notably, the plaintiff has not disputed the general releases of liability and the withdrawals as to Cullen, Argitakos, and the association, nor has the plaintiff asserted that issues otherwise remain regarding unidentified persons.
The present case is more akin to Savoie v. Prudential Property Casualty Ins. Co., supra, 84 Conn.App. 594. In that case, the plaintiff also settled her claims against joint tortfeasors for a sum which was, in total, in excess of her underinsured policy coverage limit. In upholding a setoff that reduced the amount of available coverage to zero, the Appellate Court stated: "Neither Collins nor Garcia help the plaintiff's case because they do not relate to whether an insurer, who is not being sued as a surrogate for a joint tortfeasor, is entitled, by virtue of specific policy terms, to set off payments received by a claimant from one or more joint tortfeasors. The issues in Collins and Garcia concerned the effect of a settlement by one joint tortfeasor on the liability of another joint tortfeasor and, in each of those cases, the insurer was a surrogate for a joint tortfeasor. Unlike the situations in [ Collins and Garcia] there is no concern here that either of the tortfeasors is escaping liability, or incurring more liability, simply because a joint tortfeasor has first made payment to the plaintiff in settlement of a claim." Savoie v. Prudential Property Casualty Ins. Co., supra, 84 Conn.App. 605-06. "[T]he plaintiff's reliance on Collins and Garcia is misplaced because those cases concerned apportionment, not setoff, and damages to be found by the fact finder, rather than damages agreed to by settlement." Id., 602-03.
The plaintiff attempts to distinguish Savoie, by noting that, in that case, the settlement apportioned liability between the joint tortfeasors at fifty percent (50%) each, and that such a designation is not present in this case. See Savoie v. Prudential Property Casualty Ins. Co., supra, 84 Conn.App. 596. In this context, this is a difference without significance. As the Savoie court noted: "[t]he issue here does not concern the apportionment of the liability of either of the tortfeasors, but the obligation, pursuant to an insurance policy, of an underinsured motorists insurance provider to its insured. The insurer's role in this case is distinct from the role of the insurers in Collins and Garcia." Id., 606. Here, as in Savoie, the issue also is setoff, under the applicable policy limit set forth in the Laderoute insurance policy, not apportionment.
In J. Berk M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (3d Ed., 2006 Supplement), § 4.9.D, p. S-65, the authors state, "[t]he critical issue in Garcia is the amount collectible as damages and not the reduction of the limits of coverage as made by other tortfeasors pursuant to the provisions of the UM policy. The reduction of coverage limits and the reduction of damages are distinct issues, turning on different concepts and policy." (Emphasis in original.) " As a practical matter, Savoie emasculated, if not overruled, Garcia in the context wherein reduction of policy limits (not damages) is sought." (Emphasis in original.) J. Berk M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (3d Ed., 2006 Supplement, § 4.9.D, p. S-66. Our Supreme Court has referred to Berk and Jainchill's treatise as "the leading text in the area of uninsured and underinsured motorist coverage in Connecticut." Vitti v. Allstate Ins. Co., 245 Conn. 169, 179 n. 9, 713 A.2d 1269 (1998).
In accordance with the Laderoute insurance policy's terms, since the plaintiff has, through settlements with the tortfeasors, recovered an amount in excess of the applicable policy limit, Allstate is entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment as to the sixth count of the complaint is granted.
It is so ordered.