Opinion
No. CV02 039 32 95
November 10, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT ( #118)
On June 3, 2002, the plaintiff, Rajesh Naik, filed a complaint against the defendant, Charles Stine. This action arises out of injuries and losses the plaintiff allegedly sustained as a result of an automobile accident.
The plaintiff alleges the following facts in his complaint. On June 10, 2000, the plaintiff was parked in the parking lot of the Greens Farms post office in Westport, Connecticut. The defendant's motor vehicle backed out of a parking space and collided with the front of the plaintiff's vehicle. As a result of the collision, the plaintiff sustained injuries and losses. The plaintiff's injuries from the collision were caused by the negligence and carelessness of the defendant.
This case was consolidated with another case in which the plaintiff sought uninsured motorist benefits from his insurer, GEICO, arising out of the same accident as the present action. The defendant was uninsured because his insurer, Reliance Insurance Company (Reliance), was insolvent. In that case, summary judgment was granted in favor of GEICO because under General Statutes § 38a-336(g)(1) and (2) and the terms of the GEICO policy, the plaintiff should have brought his uninsured motorist action against GEICO within three years from the date of the accident and one year after the plaintiff was notified of Reliance's insolvency.
See Naik v. GEICO General Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 03 0406481.
On or about October 31, 2001, Reliance was declared insolvent.
General Statutes § 38a-336(g)(2) states in relevant part: "Notwithstanding the provisions of subdivision (1) of this subsection, in the case of an uninsured motorist claim, if the motor vehicle of a tortfeasor is an uninsured motor vehicle because the automobile liability insurance company of such tortfeasor becomes insolvent or denies coverage, no insurance company doing business in [Connecticut] may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured motorist provisions of an automobile liability insurance policy to a period of less than one year from the date of receipt by the insured of written notice of such insolvency of, or denial of coverage by, such automobile liability insurance company."
Because of Reliance's insolvency, CIGA stands in the place of Reliance to provide coverage for the defendant for this accident.
In the present action, the defendant, Stine, filed a motion for summary judgment, accompanied by a memorandum in support. The defendant argues that the plaintiff cannot pursue this claim against either himself or the Connecticut Insurance Guaranty Association (CIGA) because the plaintiff has failed to exhaust his rights under his GEICO insurance policy in that he filed his claim against GEICO late.
The plaintiff filed a memorandum in opposition. Supplemental memoranda have also been filed.
CIGA "was established for the purpose of providing a limited form of protection for policyholders and claimants in the event of insurer insolvency. The protection it provides is limited based upon its status as a nonprofit entity and the method by which it is funded. Specifically, [CIGA] is a nonprofit legal entity created by statute to which all persons licensed to transact insurance in [Connecticut] must belong. See General Statutes §§ 38a-838(8) and 38a-839. When an insurer is determined to be insolvent under § 38a-838(7), [CIGA] becomes obligated pursuant to § 38a-841, to the extent of covered claims within certain limits . . . The amounts paid to claimants are funded by assessments made on member insurers; General Statutes § 38a-841; who are obligated to be members of the association as a requirement of transacting insurance business in [Connecticut]. General Statutes § 38a-838(8)." (Citation omitted; internal quotation marks omitted.) Doucette v. Pomes, 247 Conn. 442, 454, 724 A.2d 481 (1999).
General Statutes § 38a-838(5) of the CIGA act defines covered claim as "an unpaid claim . . . which arises out of and is within the coverage and subject to the applicable limits of an insurance policy . . . insured by an insurer, if such insurer becomes an insolvent insurer . . ."
General Statutes § 38a-845(1) states in relevant part: "Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under sections 38a-836 to 38a-853, inclusive, shall exhaust first his rights under such policy. Any amount payable on a covered claim under said sections shall be reduced by the amount recoverable under the claimant's insurance policy or chapter 568."
The defendant argues that because the plaintiff had a tort claim against the defendant at the time the defendant's insurer was insolvent, the plaintiff's insurer, GEICO, was obligated to provide uninsured motorist benefits to the plaintiff. The defendant further argues that because the plaintiff's claim against the defendant was a covered claim under the CIGA Act, the plaintiff, under § 38a-845(1), was required to exhaust his rights under his GEICO policy. The defendant also argues that as a result of the plaintiff's failure to timely bring his claim for uninsured motorist benefits against GEICO, he did not exhaust his rights against GEICO. Therefore, the plaintiff will not be able to recover from the defendant, and ultimately, from CIGA for the damages he allegedly sustained.
The plaintiff counters that he is not barred from recovery against the defendant because he never received a notice from CIGA as required under § 38a-336(g)(2). He argues that CIGA's letter dated June 25, 2005 to his attorney is not receipt by the insured of written notice of Reliance's insolvency. Because he never personally received notice of Reliance's insolvency, he argues that he could not have filed the claim against GEICO within the one-year period. The plaintiff further argues that the defendant, by filing a motion for summary judgment, seeks to accomplish that which should have been the subject of a timely motion to dismiss, and that the defendant should not be permitted to overcome its failure to file a motion to dismiss by filing a motion for summary judgment.
The plaintiff argues that the defendant's attorneys are not advocating on behalf of the defendant, but are advocating on behalf of CIGA. The plaintiff further argues that the defendant's advocacy of CIGA presents a conflict of interest between the defendant and CIGA, and that CIGA is not a party and no claim is pending against it. Therefore, the plaintiff argues that the defendant's motion for summary judgment, attempting to determine the question of whether CIGA is legally obligated to defend and provide coverage to the defendant, is misdirected.
The decision in this matter is controlled by the recent Connecticut Supreme Court decision in Robinson v. Gailno, 275 Conn. 290, 880 A.2d 127 (2005). In Robinson, the defendant was also insured by Reliance who was insolvent. Just as in this case, the plaintiff brought consolidated cases against the defendant, tortfeasor and the plaintiff's insurer under his uninsured motorist coverage. Also, as in this case, because the defendant's insurer was insolvent, CIGA stood in the place of the defendant's insurer. In Robinson, the plaintiff settled its case against its uninsured motorist carrier for less than the full amount of his policy and withdrew the case. In this matter, the plaintiff did not recover anything from his uninsured motorist carrier because he did not timely pursue the claim. In both cases, CIGA claimed that recovery is not allowed under General Statutes § 38a-845(1) because the plaintiff failed to exhaust his rights under his uninsured motorist policy.
In Robinson v. Gailno, supra, 275 Conn. 290, the court reviewed the legislative history of General Statutes § 38a-845(1) and the decisions of courts of other states to determine the meaning of the requirement that a plaintiff "shall exhaust first his rights under such policy." The court held that "a claimant who has unsuccessfully attempted to obtain the full coverage limits of [his] own uninsured motorist policy has satisfied § 38a-845(1) and, therefore, may bring an action to collect from the tortfeasor, either personally or through the association, with any recovery from either of those sources reduced by the full amount of those policy limits." (Emphasis added.) Id., 293.
The court found this conclusion to be consistent with the language of § 38a-845(1) which provides that "[a]ny amount payable on a covered claim . . . shall be reduced by the amount recoverable under the claimant's insurance policy . . ." (Emphasis in original; internal quotation marks omitted.) Id., 306.
Therefore, the plaintiff may bring this action against the defendant because the plaintiff has attempted to obtain the full coverage limits of his own uninsured motorist policy. Because the plaintiff's untimely pursuit of that claim caused him to recover nothing, any recovery in this matter should be reduced by the full amount of the uninsured motorist policy limits.
For the foregoing reasons the summary judgment is denied.