Opinion
No. CV02-0174247S
May 30, 2003
MEMORANDUM OF DECISION
The plaintiff, Joan Maringola, instituted this action against Denise Carroll and Patrons Mutual Insurance Company of Connecticut, for injuries she sustained as a result of a car accident with Carroll. In the second count of her complaint, the plaintiff seeks underinsured motorist benefits from Patrons Mutual, her insurance carrier.
The plaintiff has named both Denise Carroll and Patrons Mutual as defendants. The motion before the court was brought by Patrons Mutual and will affect only it. For the purposes of this memo Patrons Mutual will be referred to as the defendant.
The defendant has filed a motion to strike the second count of the complaint on the ground that the limits of any insurance policy carried by Carroll have not yet been exhausted. The defendant argues that exhaustion of the tortfeasor's policy is a prerequisite to a suit against an insurance carrier for underinsured motorist benefits.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp. ., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
In the present case, the defendant argues that the plaintiff's claim for underinsured motorist benefits is legally insufficient because the tortfeasor's policy has not yet been exhausted. The defendant claims that exhaustion is required pursuant to General Statutes § 38a-336 (b).
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 policy applicable at the time of the accident have been exhausted by payment of judgments or settlements . . .
(Emphasis added.)
General Statutes § 38a-336 (b) "provides that the insurance carrier is not obligated to make payment until all liability policies have been exhausted. It does not, however, resolve the issue of whether a plaintiff can commence an action against the insurance carrier for underinsured motorist benefits prior to exhaustion. In McGlinchey v. Aetna Casualty Surety Co., 224 Conn. 133, 141 n. 7, 617 A.2d 445 (1992), the Supreme Court stated that a demand for arbitration can be timely filed even while claims against the tortfeasor are still being pursued. The Supreme Court in Hotkowski v. Aetna Life Casualty Co., 224 Conn. 145, 150 n. 6, 617 A.2d 451 (1992), expanded McGlinchey to include an action to recover pursuant to an uninsured motorist insurance policy." VanWart v. Anderson, Superior Court, judicial district of Litchfield, Docket No. CV 96 0070936 (March 18, 1997, Dranginis, J.) ( 19 Conn.L.Rptr. 141).
"In 1995 the Supreme Court reaffirmed those statements and `made it clear in McGlinchey and Hotkowski that an insured may properly commence an action for underinsured motorist benefits prior to exhausting the liability limits of the tortfeasor's policy . . .' Serrano v. Aetna Ins. Co., 233 Conn. 437, 455, 664 A.2d 279 (1995). Additionally, in Stevens v. Aetna Life Casualty Co., 233 Conn. 460, 470 n. 14, 659 A.2d 707 (1995), the court stated that `[u]nder General Statutes § 33a-336 (b) . . . an insured may recover uninsured or underinsured motorist benefits only after exhausting the liability limits of the tortfeasor's policy . . . however, an insured may commence an action for underinsured motorist benefits prior to exhausting the liability limits of the tortfeasor's policy.'" Id.
CONCLUSION
Although § 38-336 (b) requires exhaustion of the tortfeasor's policy before the insurer is obligated to pay underinsured motorist benefits, neither the statute nor the case law precludes the commencement of an action for said benefits. The motion to strike is denied.
Gallagher, J.