Opinion
FBTCV146046910S
10-26-2016
Anaida Negron et al. v. Pedro Rosado et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Edward T. Krumeich, J.
Third-Party Defendant Travelers Casualty Insurance Company of America (" Travelers") has moved for summary judgment based on its assertion there was no coverage under the two insurance policies it issued to Fairfield Motoworks, Inc. (" Fairfield Motoworks") for the tow truck owned by Fairfield Motoworks that was involved in the underlying automobile accident. For the reasons stated below, the motion for summary judgment is granted.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
There is No Coverage Under the CGL Policy
Fairfield Motoworks has a general business owner's liability policy (" CGL Policy") with Travelers, which contains an auto exclusion: " [for] 'bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any . . . auto . . . owned or operated by . . . any insured." The tow truck involved in the accident was owned by Fairfield Motoworks so this unambiguous exclusion from coverage applies. See New London City Mut. Ins. Co. v. Nantes, 303 Conn. 737, 754, 36 A.3d 224 (2012) (no ambiguity in exclusion of automobile coverage).
The complaint alleges the tow truck backed into the plaintiff's vehicle injuring her and her minor daughter.
" If an insurance policy's words are clear and unambiguous, we must accord them their 'natural and ordinary meaning.' (Internal quotation marks omitted.) Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004). If, instead, the policy's words are ambiguous, we adopt an interpretation that expands the range of coverage over one that restricts it. See, e.g., id. We note, however, that 'words do not become ambiguous simply because lawyers or laymen contend for different meanings.' (Internal quotation marks omitted.) R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 463, 870 A.2d 1048 (2005). Words also do not become ambiguous simply because a contract fails to define them; even when undefined, words are not ambiguous if common usage or our case law gives them a single meaning. See Budris v. Allstate Ins. Co., 44 Conn.App. 53, 57, 686 A.2d 533 (1996)." New London City Mut. Ins. Co., 303 Conn. at 753.
There is No Coverage Under the Automobile Policy
Fairfield Motoworks also had an automobile policy with Travelers, which the insurer claims did not cover the tow truck in question because it was not listed in any schedule of coverage on the declarations page. Fairfield Motoworks argues there is an issue of fact as to whether the tow truck was covered that should preclude summary judgment.
As a general matter, insurance policies are construed in accordance with well-established principles of contract law. See Community Action for Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000). There are two provisions that could possibly cover the tow truck owned by Fairfield Motoworks: (1) specifically listed vehicles as defined by Symbol 7 listed in Item Three of the declarations or (2) the endorsement for dealer/repairer plates if the truck was using the covered plates at the time of the accident.
" In ascertaining the meaning of the terms of the insured's policy we also are guided by well-established principles. 'The [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy . . . A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous.' (Citations omitted; internal quotation marks omitted.) Id., at 805-06, 724 A.2d 1117. Moreover, '[t]he provisions of the policy issued by the defendant cannot be construed in a vacuum . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy.' (Citation omitted.) Ceci v. National Indemnity Co., 225 Conn. 165, 168, 622 A.2d 545 (1993)." Community Action for Middlesex, Inc., 254 Conn. at 399-400.
Symbol 7 by its terms applies to vehicles owned by the insured and covers " only those autos described in Item Three of the Declarations for which a premium charge is shown . . . Courts in similar cases have enforced the clear and unambiguous language of the policies' symbols and declarations to determine insurance coverage as a matter of law. See e.g., Nat'l Grange Mut. Ins. Co. v. Santaniello, 290 Conn. 81, 97, 961 A.2d 387 (2009); Bragdon v. Sweet, 102 Conn.App. 600, 606-07, 925 A.2d 1226 (2007); Collins v. Progressive N.W. Ins. Co., 2015 WL 7421571 *4 (Conn.Super.Ct. 2015).
The declarations on the auto policy issued to Fairfield Motoworks do not include the subject tow truck in Item Three; instead it says " TBD, " which commonly is a shorthand version of " to be determined." Fairfield Motoworks points to " TBD" as an ambiguity that cannot be resolved on summary judgment, noting that the policy was in effect, no automobiles were listed in Item Three of the declarations and yet premiums were being charged. Defendant contends it is for the jury to decide whether the specific tow truck was included among the autos " TBD." Fairfield Motoworks did not submit an affidavit in opposition to the motion and there is no evidence that the tow truck was added to the coverage and became an auto for which premiums were charged as defined by Symbol 7 of the policy.
That Item Three states premiums of $720 were charged alone would not raise any inference that the specific tow truck was covered because there was coverage under the policy for other risks such as those vehicles owned by Motoworks that used the dealer/repairer plates and that was the stated premium for that coverage.
Travelers did submit affidavits in support of the motion, which stated that the tow truck, owned by Fairfield Motoworks, was never added to the declarations and covered by the policy, and also included an admission from a representative of Fairfield Motoworks to Traveler's investigator that the tow truck was not intended to be covered by this policy. There is no counter-affidavit.
Travelers argues that " TBD" is not ambiguous, it simply means that autos to be listed in the schedule are " to be determined" and no autos were ever added by Fairfield Motoworks. In Wallman v. Suddock, 200 Cal.App.4th 1288, 1307, 134 Cal.Rptr.3d 566 (2011), the California Court of Appeals rejected a similar argument and held that the use of " TBD" in the schedule of underlying insurance " created no ambiguity." In W. Am. Ins. Co. v. Westport Ins., 2006 WL 932075 **3-4 (D.Col. 2006), the Colorado District Court held that leaving an endorsement form blank, with no autos described, meant that the truck in question was not covered.
" The policy must be examined as a whole, and in context, to determine whether an ambiguity exists." Thus, the proper question is not whether " TBD" is ambiguous in the abstract, but rather whether it is ambiguous in the context of this policy and this case . . . [W]hile the acronym " TBD" could create an ambiguity in some circumstances (for example, if a dispute arose as to which Capital policies constituted Underlying insurance), in the present circumstances--where the Schedule of Underlying Insurance identifies " Capital Insurance Group" as the insurer providing the underlying insurance--the use of 'TBD" created no ambiguity as to whether relevant underlying insurance included not only Capital policies, but Crusader policies as well." 200 Cal.App.4th at 1307.
Here, there simply is no evidence submitted on this motion from which a reasonable jury could infer the tow truck was intended to be covered under Item Three in the automobile policy. If Fairfield Motoworks wanted to counter the evidence submitted by Travelers and raise disputed issues of fact, it was incumbent on defendant to submit evidence the tow truck was covered under the policy.
The same is true for the endorsement that covered the dealer/repairer plates, which would cover any vehicle owned by Fairfield Motoworks used in the insured's business that used the plates described in the endorsement.
Travelers submitted affidavits that stated the described plates were not on the tow truck at the time of the accident, that a representative of Fairfield Motoworks confirmed this and no claim has been made for coverage under the plates endorsement. No counter-affidavit has been filed. Because the covered plates were not on the tow truck at the time of the accident there was no coverage under the plates endorsement. See Christian v. Harleysville Worcester Ins. Co., 104 Conn.App. 345, 353-55, 933 A.2d 1216 (2007).
CONCLUSION
Travelers has satisfied its burden of showing that there is no genuine issue of material fact and it is entitled to summary judgment dismissing the claim of Fairfield Motoworks that Travelers is obligated to provide insurance coverage for the underlying accident.