Opinion
No. CV03 0408010 S
December 29, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
The defendant City of Bridgeport ("City") has moved for summary judgment. This action arises from a motor vehicle accident between the plaintiff and the defendant Laurie Phillips, which occurred on or about April 22, 2003. At the time of the accident, the plaintiff was a police officer, employed by the defendant City of Bridgeport ("City"). The defendant, Phillips, has paid the plaintiff her policy limit in the amount of $20,000 in exchange for a release and a withdrawal of action. In addition to the recovery against Phillips, the plaintiff has also received an additional $5,000 payment from his own insurance company, Nationwide, which had also been named as a defendant in this action. Nationwide had maintained an uninsured/underinsured policy for the benefit of the plaintiff, in the amount of $25,000. The sole remaining defendant in this action is the City of Bridgeport.
The plaintiff, Gabor Meszaros, is now pursuing an uninsured/underinsured motorist claim against the City arising from his claimed status as an insured under the City's uninsured/underinsured motorist policy. The City has denied coverage, claiming that its uninsured/underinsured motorist coverage is limited to $20,000/$40,000 pursuant to its declared limits with the State of Connecticut, and the plaintiff has already recovered the total sum of $25,000 from the defendants Phillips and Nationwide. The plaintiff disagrees with the City's claim regarding its limits of coverage, arguing that while the City has confirmed that it is self-insured, the City has not indicated its applicable limits of coverage with the Insurance Commissioner.
In the First Count of the plaintiffs' complaint, the plaintiff, Gabor Meszaros asserts that he was operating a motor vehicle owned by the City, and the City was self-insured at the time of the accident. For the purposes of this motion, the parties have stipulated to those facts. The plaintiff further alleges that pursuant to General Statutes § 38a-321, et seq., the City is bound and obligated to pay compensation to the plaintiff for his injuries. The Third Count of the complaint also names the City as a defendant and claims a loss of consortium by the plaintiff's spouse, Jennifer Meszaros. Jennifer Meszaros makes similar claims as to the City's uninsured/underinsured motor vehicle coverage, as her recovery is derivative of a recovery by her husband, plaintiff Gabor Meszaros.
The standard of law regarding a motion for summary judgment is well-settled. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
The City argues that since 1982, its written filings with the Department of Motor Vehicles establishes that the City has disclosed that the statutory minimum coverage of $20,000/$40,000 are being provided by "self-insurance." In support of its position the City has provided exhibits and an affidavit by the City Attorney, Mark T. Anastasi. These materials reveal that the City filed an "Application for Self-Insurance Permit" dated August 12, 1982. The application stated that the City was maintaining uninsured/underinsurance coverage in the amount of $20,000/$40,000, and that no "Excess Insurance" was being provided to the City by any insurance company authorized to do business in Connecticut. The State Insurance Commissioner on August 19, 1982 informed the City that its application to self-insure was approved. On February 13, 1990, the Insurance Commissioner sent a letter to the City stating that the Insurance Commissioner assumed the City was still self-insured, to which the City, on April 20, 1990 responded that it was still self-insuring its motor vehicles. The City argues that it is clear from this documentation that it maintained uninsured/underinsured motorist coverage of $20,000/$40,000 through its self-insurance declaration based on its filings with the Insurance Commissioner since 1982. As a result, the plaintiff, having recovered an amount in excess of $20,000 from the tortfeasor and his own insurance company cannot maintain a claim against the City pursuant to its minimum $20,000 uninsured motorist coverage.
Sec. 14-112. Proof of financial responsibility reads in relevant part:
(a) When commissioner shall require. To entitle any person to receive or retain a motor vehicle operator's license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has a record on file with the commissioner which is sufficient, in the opinion of the commissioner to require evidence of financial responsibility for the reasonable protection of other persons, the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars . . .
Public Act 82-145, effective October 1, 1982, exempted municipalities from filing a yearly self-insurance certificate.
The court agrees after reviewing the correspondence submitted by the City, that the City has sufficiently shown that it has maintained uninsured motorist coverage in the amount of $20,000/$40,000 since 1982. See. Piersa v. Phoenix Ins. Co., 273 Conn. 519, 526, 871 A.2d 992 (2005). However, while the court finds that the minimum applicable limits specified in General Statutes § 14-112 are $20,000 per person and $40,000 per accident, and the City's notice to the commissioner regarding its application for self-insurance specified those minimum amounts, the court's inquiry does not stop here. The City's application for self-insurance, dated August 12, 1982 and its subsequent correspondence with the Insurance Commissioner, dated April 20, 1990, were both silent regarding whether that minimum coverage would be further reduced by the reductions in limits specifically permitted by section 38a-334-6 of the Regulations of Connecticut State Agencies, including the reduction in limits at issue in the present case. See Piersa v. Phoenix Ins. Co., supra, 273 Conn. 526.
Section 38a-334-6 of the Regulations of Connecticut State Agencies titled "Minimum provision for protection against uninsured motorists," reads in relevant parts as follows:
(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured or underinsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. "Uninsured motor vehicle' includes a motor vehicle insured against liability by an insurer that is or becomes insolvent . . .
(c) Exclusions. The insurer's obligations to pay may be made inapplicable:
(1) To any claim which has been settled with the uninsured motorist without the consent of the insurer;
(2) if the uninsured or underinsured motor vehicle is owned by
(A) the named insured or any relative who is a resident of the same household or is furnished for the regular use of any of the foregoing,
(B) a self insurer under any motor vehicle law, or
(C) any government or agency thereof;
(3) to pay or reimburse for workers' compensation or disability benefits.
(d) Limits of liability.
(1) The limit of the insurer's liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the General Statutes, except 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.
(2) The policy may also provide that any direct indemnity for medical expense paid or payable under the policy will reduce the damages which the insured may recover under this coverage.
(3) Any payment under these coverages shall reduce the company's obligation under the bodily injury liability coverage to the extent of the payment.
(4) This subsection shall not apply to underinsured motorist conversion coverage except that no payment under a policy providing underinsured motorist conversion coverage shall duplicate payment from any other source . . .
Neither the plaintiff or the City have directly addressed this question in the memorandum of law submitted by each. However, it appears the City maintains that, although in its application for self-insurance and its subsequent letter to the insurance commissioner, the City specifically selected and continued to maintain the minimum coverage of $20,000 per person and $40,000 per accident, it was not also necessary for it to specify that this coverage for the minimum limits would also be subject to all permitted reductions in limits as set forth in § 38a-334-6 of the Regulations of Connecticut State Agencies. If this is the City of Bridgeport's argument, it is the same position taken by the City of Hartford in Piersa v. Phoenix Ins. Co., supra, that was ultimately rejected by our Supreme Court. "There is nothing in either the language of the act or its purpose to suggest that it was designed to create a presumption that silence by a municipality in this filing regarding the scope of coverage would mean that the minimum coverage and all permitted reductions in limits were applicable as a matter of law." Id., 535.
This issue has been raised by a plaintiff and addressed by the City in two cases also being decided by the court concurrently. The issue of coverage has been raised by the City in its Defendant's Motion for Summary Judgment filed in Carlos Garcia v. City of Bridgeport, Docket No. CV07 5006581, Superior Court, judicial district of Bridgeport and by Carlos Garcia, plaintiff, in his action for a declaratory judgment, Carlos Garcia v. City of Bridgeport, Docket No. CV08 4025181, Superior Court, judicial district of Bridgeport. The issues regarding the limits of Bridgeport's uninsured/underinsured motorist coverage as a self-insurer arc similar to that of the present case. Separate written decisions in those two matters will be issued by the court, even though the findings of the court in the present case are dispositive of the motion for summary judgment and the declaratory judgment filed in the two Garcia cases.
In Piersa, supra, the issue was whether a self-insured municipal employer may reduce the limits of its uninsured motorist coverage by the amount of workers' compensation benefits paid, without having created a writing effectuating such a reduction. Id., 521. However, the decision is not limited solely to workers' compensation benefits, as the court's analysis is applicable to all the stated limits of liability contained in § 38a-334-6(d)(1)(A)(B)(C) and § 38a-334-6(d)(2)(3)(4). "We conclude that the language of the regulation must be interpreted so as to require a municipal self-insurer that wishes to impose permitted limits on its obligations as such to do so by a written document that appropriately provides for reduction of limits." Piersa v. Phoenix Ins. Co., 273 Conn. 527.
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, pursuant to § 38a-371(c), as the defendant in the present case did with respect to its election of the minimum coverage of $20,000 per person and $40,000 per accident. Or, as our discussion of § 38a-371(c) in this opinion indicates, it may be as part of a written document that the self-insured entity maintains in its files.
Id., 531
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. As the plaintiff suggested at oral argument before this court, the 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.
Id.
Section 38a-334-6 of the Regulations of Connecticut State Agencies "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." Id., 539.
The City has not provided any documentation or proof that prior to the date of the plaintiff's alleged injuries on February 2, 2004, it sent a written document to the Insurance Commissioner setting forth the permitted reductions in limits allowed by § Section 38a-334-6. See Id. The correspondence with the Insurance Commissioner sets forth only that the City was electing to be a self-insurer with the minimum uninsured motorist coverage of $20,000/$40,000. Additionally, the City has not submitted any proof or documentation that a written document is maintained in its files stating the City intended to adopt the limits in its coverage that are permitted by § 38a-334-6. Id. Accordingly, the motion for summary judgment filed by the City, is hereby denied.