Opinion
No. CV 06-6000154 S
September 21, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 140 AND OBJECTION TO MOTION FOR SUMMARY JUDGMENT NO. 142
On February 20, 2007, the plaintiff, Gail Melillo, filed a three-count amended complaint against the defendants, Juanita Singleton, Westport Insurance Corporation (Westport) and Travelers Insurance Company (Travelers). The plaintiff alleges the following facts in the complaint. On August 9, 2004, the plaintiff was a passenger in a motor vehicle, which was owned by Hy's Livery Service and insured by Westport. When the vehicle stopped at a red light, it was struck in the rear by a vehicle owned by Singleton. The Singleton vehicle, which was uninsured, subsequently fled the scene of the accident. The plaintiff suffered injuries as a result of the collision. The plaintiff further alleges that she has an automobile insurance policy with Travelers that includes a provision for uninsured motorist coverage and that she is entitled to recover for her damages under that provision. The complaint's three counts are, respectively, a negligence claim against Singleton, an uninsured motorist coverage claim against Westport and uninsured motorist coverage claim against Travelers.
On March 19, 2007, Travelers filed a motion for summary judgment as to the third count of the complaint, together with a memorandum of law and documentary evidence. Travelers argues that no material issue exists regarding the fact that the plaintiff's claim for uninsured motorist coverage is barred by General Statutes § 38a-336(d) and that it is thus entitled to summary judgment as a matter of law. On May 10, 2007, the plaintiff filed an objection to Traveler's motion, together with a memorandum of law and documentary evidence. The matter was heard at the short calendar on May 29, 2007.
Except for the certified copy of the insurance policy appending Travelers' summary judgment motion, the parties have submitted uncertified copies of documentary evidence. Although such evidence is generally considered inadmissable. See New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). The court will, however, consider the evidence in deciding the motion, as neither party has raised this objection. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006).
DISCUSSION
"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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Travelers argues that no genuine issue of material fact exists regarding whether the plaintiff's uninsured motorist coverage claim is barred by § 38a-336(d). It argues that it is undisputed that, at the time of the accident, the plaintiff was an occupant of a vehicle that she did not own, that the vehicle was insured by Westport for $1 million and that the policy Travelers issued to the plaintiff, which had an uninsured motorist limit of $100,000, did not provide coverage to the occupied vehicle. As such, Travelers argues, its policy is secondary to Westport's and since Westport's coverage amount is greater than that of Travelers, the maximum amount that the plaintiff can recover is $1 million from Westport only. The plaintiff concedes that Westport's policy could be primary under the statute but counters that a genuine issue of material fact exists as to whether Westport insured the occupied vehicle at the time of the accident.
General Statutes § 38a-336(d) provides in relevant part: "If a person insured for uninsured and underinsured motorist coverage is an occupant of a nonowned vehicle covered by a policy also providing uninsured and underinsured motorist coverage, the coverage of the occupied vehicle shall be primary and any coverage for which such person is a named insured shall be secondary. All other applicable policies shall be excess."
The parties do not dispute that § 38a-336(d) requires Westport's coverage be primary if its policy covered the vehicle occupied by the plaintiff at the time of the accident. They agree that the latter fact, if established, would preclude the plaintiff's claim against Travelers. Their sole dispute concerns whether Westport admitted to providing such coverage in the course of pretrial discovery. The following procedural events are therefore salient.
"To take advantage of admissions, the requests and the answers thereto should be introduced into evidence." Larson v. Fazzino, 216 Conn. 431, 433 n. 4, 582 A.2d 179 (1990). The parties have attached most, but not all, of requests and answers to their respective memoranda. Regardless, the court can take judicial notice of the file's contents in the case at bar. See Karp v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972).
Travelers relies on the following two circumstances as evidence that Westport has admitted to providing coverage. First, according to its notice of service filed on December 11, 2006, Travelers served Westport with a request for admissions on December 8, 2006. In its response dated December 19, 2006, Westport objected to Travelers' requests that Westport admit that, on August 9, 2004, Westport's policy covered the vehicle. On January 25, 2007, Travelers filed a motion to determine the sufficiency of Westport's response pursuant to Practice Book § 13-23(b). On February 13, 2007, the court, Thompson, J., granted the motion and ordered Westport to answer the objected to requests within thirty days. Westport has yet to comply with the order.
"Once a response has been filed, the party who has requested the admission may file a motion to determine the sufficiency of the answer or objection. See Practice Book § 13-23(b)." East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).
Second, on December 8, 2006, the plaintiff served a request for admissions on Westport. In its response filed on December 21, 2006, Westport objected to the plaintiff's request that it admit that on August 9, 2004, its policy covered the vehicle, On January 24, 2007, the plaintiff filed a motion to determine the sufficiency of Westport's response. On February 13, 2007, the court, Thompson, J., granted the motion as to this request. Westport has yet to file an adequate response.
As the Appellate Court has noted: "The request for admissions is an instrument of discovery . . . governed by Practice Book §§ 13-22 through 13-25. Section 13-23(a) mandates in relevant part that `[e]ach matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter.' . . . A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment. See Practice Book § 13-24 . . . Similarly, a failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted." (Citations omitted; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).
Practice Book § 13-24(a) provides in relevant part: "Any matter admitted . . . is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission."
In failing to file adequate responses after the court's February 13 decision to grant the motions to determine sufficiency, Westport has not complied with our rules of practice. Its noncompliance renders its coverage of the vehicle an admitted fact, which it has not sought to withdraw or amend. Accordingly, Travelers has met its burden of providing evidence of the absence of a genuine issue as to this material fact.
Nevertheless, as the plaintiff notes in her objection, in paragraph ten of the second count of her complaint, the plaintiff alleges, inter alia, that Westport's policy covered the vehicle that she occupied at the time of the accident. On February 26, 2007, Westport filed an answer to the plaintiff's complaint in which it denies the allegations of that paragraph. Thus, the plaintiff has satisfied her burden of providing evidence that Westport effectively put the other parties on notice that it contested that it provides coverage for the vehicle. See East Haven Builders Supply, Inc. v. Fanton, supra, 80 Conn.App. 745.
CONCLUSION
A genuine issue of material fact emerges regarding whether Westport's policy covered the vehicle occupied by the plaintiff at the time of the accident. Because the evidence contains an admission and a denial of the same dispositive fact, Westport's coverage of the vehicle, a genuine issue of material fact exists regarding whether Westport is the primary coverage provider under § 38a-336(d). Travelers' motion for summary judgment as to count three of the plaintiff's complaint is denied and the plaintiff's objection to Travelers' motion is granted.