Opinion
No. MMX CV09 600 0725 S
January 28, 2010
MEMORANDUM OF DECISION
Pursuant to Practice Book § 17-49 the defendant GEICO Casualty Company has moved for summary judgment on the fifth count of the plaintiff David Merriam's complaint as amended on the ground that as a matter of law such plaintiff is not entitled to underinsured motorist benefits pursuant to General Statutes § 38a-336(e) because the limits of the underinsured motorist coverage available to such plaintiff are equal to the amount of the liability insurance available to satisfy his claims against the alleged tortfeasor/defendant Brian M. Dascanio. There is no dispute that the plaintiff and such defendant have separate coverage each in the amount of $20,000/$40,000 though GEICO Casualty Company.
Such plaintiff has opposed such defendant's motion for summary judgment by filing two memoranda of law, but no affidavits or documents. Such plaintiff has cited two cases for the court's consideration, American Motorists Ins. Co. v. Gould, 213 Conn. 625, 632, 569 A.2d 1105 (1990), overruled in part by Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991), and Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 764, 621 A.2d 258 (1993).
In Stephan, the Supreme Court concluded that
. . . the policies did not permit Phoenix and Pennsylvania to reduce the damages owed to Stephan by taking credit for payments made to others. Accordingly, we need not determine whether the reduction would be permitted by General Statutes 38a-336(b) or 38-175a-6(d) of the Regulations of Connecticut State Agencies.Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. at 764-65. The Supreme Court did not discuss or interpret General Statutes § 38a-336(e) or § 38-175c.
In American Motorists Ins. Co. v. Gould, supra, 213 Conn. at 631, the Supreme Court stated that pursuant to General Statutes § 38-175c, the predecessor statute to General Statutes § 38a-336, the insured's uninsured motorist coverage limits had to be greater than the total liability limits for a tortfeasor's vehicle before it could be deemed underinsured:
Unlike statutes in some other states that allow an insured to resort to his underinsured motorist coverage whenever his damages from an accident exceed the total liability insurance covering the tortfeasor, 38-175c requires that the insured's uninsured motorist coverage limits be greater than the total liability limits for a vehicle before it may be deemed underinsured. American Universal Ins. Co. v. DelGreco, supra; R.T. Phillips, No Fault and Uninsured Motorist Automobile Insurance (D. Slavin ed. 1984) 30.50[2]. When there is only one accident victim, it is clear that in Connecticut the insured may not utilize his uninsured motorist coverage unless its limit exceeds the total amount of insurance available to satisfy claims against the tortfeasor. The defendant does not contend otherwise.
The Supreme Court also noted in Gould:
. . . In the few cases involving such statutes as applied to a situation where there is more than one accident victim and the resulting claims exceed the total liability insurance limits, the courts have continued to regard uninsured motorist coverage as inaccessible when its limit is less than the total liability insurance available to all claimants . . .
In Covenant Ins. Co. v. Coon, 220 Conn. 30, 36-37, 594 A.2d 977 (1991), the Supreme Court clarified that while its holding in Gould could be interpreted as stating that the underinsured motorist provisions of different policies could be stacked in making the initial determination whether a tortfeasor's vehicle is underinsured, such a construction is inconsistent with the express language of General Statutes § 38a-336 and, to the extent that Gould implied otherwise, it in Coon held to the contrary:
The application of 38a-336 requires two distinct steps: (1) determining whether a vehicle is in fact underinsured, so that coverage is available; and (2) calculating the amount of the actual award due the victim. The statute does not prohibit stacking of coverage in determining the total amount of the award due the victim. The statute is unequivocal, however, in establishing the mechanism for determining whether a vehicle is underinsured, and it specifically limits consideration of underinsured motorist coverage to each policy separately. Farm City Ins. Co. v. Stevens, 215 Conn. 157, 161, 574 A.2d 1300 (1990) (stacking of coverage of separate vehicles listed under single policy permitted). While our holding in Gould could be interpreted as stating that the underinsured motorist provisions of different policies could be stacked in making the initial determination whether a tortfeasor's vehicle is underinsured, such a construction is inconsistent with the express language of the statute and, to the extent that Gould implied otherwise, we now hold to the contrary.
In Coon the Supreme Court explained the application of the statute as follows:
In the context of this case, the initial question is whether the Sacco vehicle is underinsured with respect to the two underinsured motorist provisions of the policies against which claim is made. As directed by the statute, this analysis must be undertaken with respect to each policy. As concerns North River, the tortfeasor's liability limit of $25,000 exceeds the underinsured motorist coverage of $20,000. The Sacco vehicle is therefore not underinsured with respect to this policy and therefore Coon has no claim against North River. With respect to Covenant, however, Sacco's $25,000 liability limit does not exceed the $50,000 in underinsured motorist coverage available under the policy and therefore the Sacco vehicle is underinsured with respect to the Covenant policy.
Covenant Ins. Co. v. Coon, supra, 220 Conn. 30 at 37.
In a Superior Court decision involving the same amounts of coverage as in this case, the court determined that the victim was not underinsured:
If the effective UM/UIM coverage in the instant case is $20,000/40,000, there appears to be no dispute whether the car in question is underinsured: it is not. Because the uninsured/underinsured limit is the same as the liability coverage of the alleged tortfeasor, the vehicle is not underinsured. See § 38a-336(e) of the General Statutes; Covenant Insurance Co. v. Coon, 220 Conn. 30, 37-38 (1991) . . .
McDonald v. National Union Fire Insurance Company of Pittsburgh, PA, 2002 Ct.Sup. 2620, 2624, No. CV 00 0595517 S, Superior Court, Judicial District of Hartford (Beach, J., March 4, 2002).
For the foregoing reasons, and because there are no genuine issues of material fact in dispute and such defendant is entitled to summary judgment as a matter of law, the defendant's motion for summary judgment as to the fifth count of the complaint as amended is hereby GRANTED.