Opinion
CV156052072
11-15-2016
Darlene Luciani v. Travelers Casualty Insurance Company of America
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 109)
Jon C. Blue, Judge
The Motion For Summary Judgment now before the court in this underinsured motorist coverage case contends that the plaintiff, Darlene Luciani, is not an insured under the policy in question. For the reasons stated below, the Motion must be granted.
Luciani's Complaint arises out of a motor vehicle-pedestrian accident. Luciani alleges that on May 12, 2012, she was a pedestrian in the parking lot of the North Haven Police Department. While standing in the lot, she was struck and injured by a motor vehicle operated by Mary Jo A. Lequin, an underinsured motorist. Her injuries were allegedly caused by Lequin's negligence.
On January 5, 2015 Luciani commenced this action by service of process against Travelers Casualty Insurance Company of America (" Travelers"). Her Complaint claims underinsured motorist coverage under a commercial automobile liability insurance policy (" Policy") issued by Travelers to her husband's business, Bethany Painting, LLC (" Bethany").
On June 16, 2016, Travelers filed the Motion For Summary Judgment now before the court. As mentioned, the Motion claims that Luciani is not an insured under the Policy. The Motion was argued on November 14, 2016.
The Policy must now be reviewed.
The Policy is a commercial automobile insurance policy issued to Bethany, a limited liability company. The " Named Insured" is Bethany. Coverage is addressed under a twelve-page endorsement entitled " Business Auto Coverage Form" (" Business Form"), a one-page Driver Record Information form (" Driver Form"), and a four-page endorsement entitled " Connecticut Uninsured and Underinsured Motorists Coverage" (" UM Form").
Section II(A)(1)(b) of the Business Form provides that an " Insured" is " Anyone [other than the named insured] while using with your permission a covered 'auto' you own, hire or borrow." This provision defines Luciani's coverage under the Business Form. The Business Form, however, qualifies her as an insured only while she is " using" a covered vehicle. Luciani was not " using" a vehicle of any description at the time of the accident in question here.
Luciani argues that she is independently entitled to coverage under the Driver Form. The Driver Form identifies Luciani as a " driver" and " includes those drivers who will be using [Bethany's] automobiles insured through [Travelers]." Assuming, for purposes of argument, that the Driver Form constitutes an additional source of coverage, it does not broaden the ambit of coverage supplied by the Business Form. Like the Business Form, the Driver Form applies only to " drivers" who are " using" Bethany's vehicles. Luciani was neither a " driver" nor a person " using" a vehicle at the time of the accident in question.
Section A(1) of the UM Form provides that, " We will pay all sums the 'insured' is legally entitled to recover as compensatory damages from the owner or driver of an 'uninsured motor vehicle' or 'underinsured motor vehicle.'" If the " Named Insured" is a partnership, limited liability company, corporation or any other form of organization (a description covering Bethany), Section B(2)(a) of the UM Form provides that an " insured" is " Anyone 'occupying' a covered 'auto' or a temporary substitute for a covered 'auto.'" " Occupying" is a term of art. Section G(2) of the UM Form provides that, " 'Occupying' means in, upon, getting in, on, out or off."
Luciani's Complaint states that she was a " pedestrian" at the time of the accident in question. She does not contend that she was " in, upon, getting in, out or off" a motor vehicle. Consequently, she was not " occupying" a motor vehicle within the meaning of the UM Form. Under these circumstances, she was not an " insured" within the meaning of the UM Form.
The provisions just quoted unambiguously mean that Luciani was not an " insured" under any provision of the Policy. Her Complaint admits that she was a " pedestrian" at the time of the accident in question. She was not " using" a motor vehicle. She was not " in, upon, getting in, out, or off" a covered auto (or, for that matter, any motor vehicle of any description). All of the provisions in question are unambiguous.
Luciani's argument that she and her husband had an " understanding" from " the [P]olicy read as a whole" (Plaintiff's Brief, at 8) that she was insured as a pedestrian cannot be squared with the definition of " insured" contained in the Policy. The " determinative question" of the intent of the parties 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 intent of the parties is to be deduced, must be accorded its natural and ordinary meaning." Connecticut Insurance Guaranty Ass'n v. Drown, 314 Conn. 161, 187-88, 101 A.3d 200 (2014). (Internal quotation marks, citation, and brackets omitted.)
Luciani's fallback argument is that the Policy " circumvents the statutory purpose of uninsured motorist coverage." (Plaintiff's Brief, at 10.) The statute in question is Conn. Gen. Stat. § 38a-336(a)(1), providing that, " Each automobile insurance policy shall provide insurance for the protection of persons insured thereunder who are legally entitled to recover damages because of bodily injury . . . from owners or operators of uninsured motor vehicles and underinsured motor vehicles . . ." (Emphasis added.) The short answer to Luciani's argument that she was entitled to benefits under the statute, is that she is not entitled to such benefits because she was not a " person[] insured."
" Unlike the automobile liability statutes, " the uninsured motorist statute does not require automobile insurance policies to provide underinsured motorist to any particular class or group of insureds." Middlesex Insurance Co. v. Quinn, 225 Conn. 257, 264, 622 A.2d 572 (1993). (Footnote omitted.) " [T]here is no violation of public policy if the person being denied uninsured motorist benefits is not an insured under the liability section of the policy." Id., at 267. Whether Luciani is entitled to collect pursuant to the Policy " is a question of coverage, not exclusion." Smith v. Nationwide Mutual Insurance Co., 214 Conn. 734, 741, 573 A.2d 740 (1990).
Luciani draws a different lesson from Quinn. Quinn explains that the statutory phrase " persons insured" " refers to persons specified as insureds in the liability portion of the policy." 225 Conn. at 264. Luciani reasons that because she was an " insured" for at least some purposes under the Business Form and the Driver Form, she was consequently a " person[] insured" under the statute. With respect, this reasoning follows from neither the holding nor the language of Quinn .
Quinn 's holding involves a driver. The defendant in that case was " driving a car he owned." 225 Conn. at 259. The Quinn court was not considering a factual situation remotely like the present one. In any event, the language of Quinn upon which Luciani relies also fails to assist her. Quinn explains that " 'persons insured' in this statute refers to persons specified as insured in the liability portion of the policy." 225 Conn. at 264. For reasons already explained, Luciani is specified as an " insured" under the provisions of the Policy in question here only insofar as she is " using" or " occupying" a motor vehicle. Because she was not engaged in any action that could be so described at the time of the accident, she was not an " insured" for purposes of the liability portions of the Policy.
There is unquestionably some tension in our case law on this point. In Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982), our Supreme Court held that a plaintiff, injured while operating an uninsured motorcycle owned by his father, could not be denied coverage when, as a relative of the named insured, he was an insured under the policy. Id., at 246. The Court reasoned that uninsured motorist coverage is " person oriented" rather than " vehicle oriented"; id., at 248; and that " [a]n insured's status at the time of the injury, whether passenger, pedestrian, or driver of an insured or uninsured vehicle, is irrelevant to recovery under the statutorily mandated coverage"; id., at 250. Under this reasoning, once a person is " insured" for some activities under a policy, the status of that person does not alter as the activity changes.
Subsequently, however, in Kitmirides v. Middlesex Mutual Insurance Co., 260 Conn. 336, 796 A.2d 1185 (2002), the Court affirmed a " thoughtful and comprehensive opinion of the Appellate Court, " reported at 65 Conn.App. 729, 783 A.2d 1079 (2001), holding that a person's status as an " insured" can indeed alter as that person's activity changes. Like Luciani, the plaintiff in Kitmirides was a pedestrian struck by an underinsured motorist. 65 Conn.App., at 730. Although she was listed on the declarations page of the policy in question under the heading " DRIVER INFORMATION, " she was not a " Covered person" because she was not, at the time of the accident, " occupying" a " covered auto." Given these policy provisions, she was, depending on her activities, sometimes a " Covered person" and sometimes not. The Appellate Court noted the reasoning of Harvey, discussed above, that " [a]n insured's status at the time of the injury, whether passenger, pedestrian, or driver of an insured or uninsured motor vehicle, is irrelevant to recovery" as an underinsured motorist. The Appellate Court reasoned, however, that, " The predicate to coverage is, nonetheless, that the person injured is an insured under the relevant automobile policy." 65 Conn.App., at 731 n.5.
As mentioned, the Appellate Court's opinion in Kitmirides was affirmed on further review, by the Supreme Court. Kitmirides is not only the most recent case just discussed but the case with the most analogous factual situation. Under these circumstances, the holding and the reasoning of Kitmirides must be followed by a lower court.
One final distinction between Harvey and the present case must be noted. The insurance policy in Harvey was a personal automobile insurance policy issued to Harvey's mother, insuring a vehicle owned by her. 188 Conn., at 246. The Policy at issue in this case is a commercial automobile insurance policy issued to a limited liability company conducting a painting business. The reasoning applicable to personal insurance policies like that at issue in Harvey is not necessarily applicable to commercial policies issued to business corporations. See Frantz v. United States Fleet Leasing, Inc., 245 Conn. 727, 740-41, 714 A.2d 1222 (1998).
In the case of a commercial policy like the one here, public policy must consider the reasonable expectations of the parties. See Gormbard v. Zurich Insurance Co., 279 Conn. 808, 829, 904 A.2d 198 (2006). It would not be unreasonable for an insurer issuing an automobile insurance policy to a commercial business to expect that it would be liable only for injuries suffered by persons using or occupying automobiles covered under the policy. At the same time, it would not be unreasonable to expect a business purchasing such a commercial policy to review the terms of the policy and to be bound by its provisions. Under these circumstances, the unambiguous terms of the Policy at issue here do not violate the purpose of the controlling statute.
The Motion For Summary Judgment is granted.