Opinion
HHDCV146051838S
05-16-2019
Scott Menard et al. v. State of Connecticut
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.T.R.
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
After a bench trial in April and May 2018 in these three consolidated cases concerning underinsured motorist claims, the court issued memoranda of decisions on August 24, 2018 (#121) , and November 13, 2018 (#125) . An appeal to the Appellate Court is currently pending
References to docket entries refer to the Menard matter.
The defendant filed a request for a collateral source hearing (#122), which was held on March 6, 2019. In lieu of oral argument, pursuant to an agreed-upon briefing schedule, the parties filed memoranda of law, the last of which was dated March 19, 2019 (#132). The factual background was discussed in the court’s first decision. After consideration of the two collateral source issues present by the parties, the court issues this memorandum of decision.
The briefing was submitted as applicable to all three cases.
In February 2019, the parties filed two stipulations related to the issues. In the first (#127), the parties stipulate that amounts set forth therein accurately summarize the court’s award of damages to each plaintiff, and that other amounts set forth therein accurately summarize amounts paid to or received by the plaintiffs on account of the personal injuries sustained in the subject motor vehicle collision of September 1, 2012. They also stipulate to amounts representing the difference between the amount awarded by the court for medical bills and the actual amount paid in satisfaction of those medical bills. In addition, they stipulate that, prior to trial, it was agreed that any recovery for medical bills would be limited to the actual amounts paid, with any adjustments to be handled as a postjudgment matter.
The second stipulation (#128) concerns insurance coverage, and includes a copy of a Memo concerning the State of Connecticut Automobile Liability Insurance Program, dated January 10, 2012 (Memo), which the parties stipulate was the State’s statement and summary of its auto liability coverage, including its self-insured coverage, as adopted by the State of Connecticut Insurance and Risk Management Board for the policy year 12/31/11-12/31/12; that the document is a public record, created by the Insurance and Risk Management Board and maintained in its insurance/risk management files; and that it was created in the ordinary course of business. In addition, the parties stipulate that the State does not distribute this document to the State employees who may operate State-owned vehicles, and that the State does not distribute this document to the employees’ union or union representatives.
I
Workers’ Compensation
The defendant contends that, since an underinsured (UIM) claimant is not permitted to recover twice for the same injury, and the Memo provides that it may reduce the limits of UM/UIM coverage by all sums paid or payable under any workers’ compensation law, the workers’ compensation benefits received by the plaintiffs must be subtracted from the amounts awarded. The plaintiffs argue that, in order for the defendant to do so it may not rely on the Memo, since it is a document which was never seen by the persons it purports to cover and was not provided to its employees, including the plaintiffs/insureds, individually, or collectively. As noted above, the parties stipulated that the State does not distribute this document to the State employees who may operate State-owned vehicles, and that the State does not distribute this document to the employees’ union or representatives.
According to the Memo, State Police who are subject to the NP-1 Collective Bargaining Agreement have a $1,000,000 per person and per accident coverage limit. The Memo also states, in relevant part, that it is the State’s intent "to avail itself of all rights and benefits conferred to insurers under General Statutes 38a-336, the applicable Regulations of Connecticut State Agencies, including 38a-334-6, and the case law interpreting those statutes and regulations. The State specifically reserves the right to limit its liability pursuant to the Regulations of Connecticut State Agencies 38a-334-6(d) by reducing the limits of its UM/UIM coverage by all sums ... paid or payable under any workers’ compensation law ..."
Conn. Agencies Regs. Section 38a-334-6(d)(1) provides that "the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury, (B) paid or are payable under any workers’ compensation law, or (C) paid under the policy in settlement of a liability claim."
In discussing written documents by which a self-insurer may impose permitted limits on its obligations, the Supreme Court has stated, "We emphasize that there is no particular form that a self-insured entity must use in order to take advantage of the permitted reductions in limits. The required written document may be part of its written notice to the commissioner of its election to be self-insured ... Or, ... it may be as part of a written document that the self-insured entity maintains in its files. Nor is it necessary for the document to repeat verbatim the language of the regulation that the defendant intends to adopt as limits on its coverage ... [T]he defendant could adopt those limits by appropriate language indicating incorporation by reference. The purpose of the document is to require the self-insured entity to fulfill its obligation as insurer by providing a kind of rough equivalence to the obligation of a commercial insurer to limit its coverage by appropriate language in its policy of insurance. Any document that reasonably fulfills that purpose will suffice." (Citations omitted.) Piersa v. Phoenix Ins. Co., 273 Conn. 519, 531, 871 A.2d 992 (2005).
The plaintiffs argue that a commercial insurer would have to include the reduction language in its policy and provide that policy to its insured. Connecticut law in this area "treat[s] a self-insurer as an insurer [and] is intended to ensure that both self-insurers and commercial insurers have equivalent opportunities to limit coverage and that claimants are not disadvantaged when looking to a self-insurer, rather than commercial insurer, for satisfaction of claims." Garcia v. City of Bridgeport, 306 Conn. 340, 363, 51 A.3d 1089 (2012).
The Supreme Court also reiterated in Garcia that § 38a-334-6 of the regulations is not a notice provision requiring informed consent by the insured, stating that Section "is not ... a notice provision; it is a provision that specifies the basic requirement of how an insurer- self or commercial- may limit its liability. It is neither untenable nor counterintuitive to require a self-insurer to file a written document to accomplish that purpose so as to achieve a rough equivalence to a commercial insurer." (Internal quotation marks omitted.) Id., 353.
By its terms § 38a-334-6 does not require a self-insurer to provide notice to the insured of the adoption of such permitted limitation of its liability. Here, the parties stipulated that the Memo is a public record, created by the Insurance and Risk Management Board and maintained in its insurance/risk management files. No statutory or regulatory requirement has been cited which provides that the State was obligated to provide a copy of this public record to its employees or their union representatives in order to make it applicable. The State may avail itself of the limitations set forth in the Memo, including that which pertains to subtracting the workers’ compensation benefits received by the plaintiffs from the amounts awarded.
II
Dram Shop
The defendant also argues that each claimant’s award should be further reduced by an additional $83,333.33, representing each plaintiff’s share of a dram shop recovery of $250,000 split three ways. The defendant argues that, while the Supreme Court, in American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987), held that a UIM insurer could not reduce its coverage limit by a dram shop payment, DelGreco would not be followed today, and that, to avoid a double recovery and an undermining of the purpose of UIM coverage, each claimant’s award should be reduced by the amount he received by the dram shop recovery.
"[T]he concept of binding precedent prohibits a trial court from overturning a prior decision of an appellate court. This prohibition is necessary to accomplish the purpose of a hierarchical judicial system. A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent." Potvin v. Lincoln Serv. & Equip. Co., 298 Conn. 620, 650, 6 A.3d 60 (2010).
In American Universal Ins. Co. v. DelGreco, supra, 205 Conn. 199, the Supreme Court stated that Connecticut statutory and regulatory law governing underinsured motorist coverage "do[es] not allow an insurer to reduce its liability for underinsured motorist coverage by an amount of money received by the insured pursuant to a dram shop policy." This court is bound to follow this precedent. Accordingly, the plaintiffs’ dram shop recovery may not be subtracted from this court’s awards to the plaintiffs.
CONCLUSION
Based on the parties’ stipulation (#127), and subtracting the amounts set forth therein, including reduction for workers’ compensation benefits, from the amounts awarded by the court in its first memorandum of decision (#121), the State’s UIM liability to the plaintiffs is as follows: Scott Menard: zero; Darren Connolly: $32,905.67; Robert Zdrojesky: $29,963.03. Judgment may enter for the plaintiffs and against the defendant in accordance with the above.