Summary
finding that the listed vehicle must be "out of use" for "reasons enumerated in the policy" in order for a car to qualify as a "temporary substitute car"
Summary of this case from Progressive Cas. Ins. Co. v. MonacoOpinion
No. CV 06-6000295-S
October 15, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This action arises out of a one-car motor vehicle accident that occurred on July 14, 2003 in which the plaintiff, Angela Perry, was a passenger in a 2003 Ford Mustang ("the vehicle") operated by Leticia Roberts who resided with her mother, Roberta Mobley, who had rented the vehicle. The plaintiff sustained personal injuries when an unidentified motorist struck the vehicle and immediately fled the scene. Mobley was the named insured under a policy, issued by State Farm Insurance Company (State Farm), that provided uninsured and underinsured motorist benefits.
The complaint names Safeco Insurance Company, Safeco Property Casualty Insurance Companies, Safeco Insurance Companies of Illinois, PV Holding Corporation, Budget Rent-A-Car System, Inc., Cendant Car Rental Group, Inc. and State Farm as defendants. The second count of the amended complaint is directed towards State Farm and alleges that at the time of the accident, Roberts "was directly insured or was a resident relative under the terms of [the State Farm] policy." The plaintiff claims that she is entitled to uninsured motorist benefits pursuant to the policy because she was injured as an occupant of the vehicle, operated by Roberts.
Safeco Property Casualty Insurance Company did not file an appearance. Safeco Insurance Companies of Illinois did not file an appearance as well, and was removed as a defendant. Moreover, Safeco Insurance Company of America filed an apportionment complaint on November 24, 2006 where it named Roberts as an apportionment defendant.
On May 15, 2009, State Farm filed this motion for summary judgment as to count two of the amended complaint on the ground that the plaintiff is not an insured under the policy.
In support of its motion, State Farm submits the following evidence: a copy of the amended complaint, an affidavit from Mobley, dated May 1, 2009, and a certified copy of the policy and its endorsements.
The plaintiff claims there is a genuine issue of material fact concerning whether Roberts had appropriate consent to operate the vehicle, as well as the vehicle's proper classification under the policy.
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"[C]onstruction of a contract of insurance presents a question of law for the court . . . It is the function of the court to construe the provisions of the contract of insurance . . . The [i]nterpretation of an insurance policy involves a determination of the intent of the parties as expressed by the language of the policy . . . [including] what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . [A] contract of insurance must be viewed in its entirety, and the interest of the parties for entering it derived from the four corners of the policy . . . [giving the] words [of the policy] their natural and ordinary meaning [and construing] any ambiguity in the terms . . . in favor of the insured . . ." Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 462-63, 876 A.2d 1139 (2005).
Section III of the policy in this case defines an insured, for purposes of uninsured motorist benefits, as "(1) the first person named in the declarations; (2) his or her spouse; (3) their relatives; and (4) any other person while occupying: (a) your car, a temporary substitute car, a newly acquired car or a trailer attached to such a car. Such vehicle has to be used within the scope of the consent of you or your spouse; or (b) a car not owned by or leased to you, your spouse or any relative, or a trailer attached to such a car. It has to be driven by the first person named in the declarations or that person's spouse and within the scope of the owner's consent . . . [and] (5) any person entitled to recover damages because of bodily injury to an insured under 1 through 4 above."
The plaintiff does not fall within the scope of categories one through three because she is not the first person named in the declarations page, her spouse, or a relative, nor does she fall within category five. State Farm argues that the plaintiff does not fall within category 4(a) because, even though she was an occupant, the vehicle did not qualify as a temporary substitute car at the time of the accident because it was not rented as a substitute for Mobley's regular car and furthermore, Roberts did not have consent to operate the vehicle, a requisite for recovery under category four.
The plaintiff claims that the policy fails to articulate whether a rental vehicle qualifies as a non-owned car and that this creates an ambiguity with respect to her status as an insured.
These factual disputes are immaterial here since coverage would still be excluded under the express terms of the policy. The plaintiff cannot be an insured under category 4(a) and there is no dispute that Mobley is the policy's named insured and the vehicle, a Ford Mustang, was rented. Since the vehicle does not qualify as the named insured's car, a newly acquired car or a trailer, the plaintiff could only recover under category 4(a) if the vehicle qualified as a temporary substitute car at the time of the accident.
"Temporary substitute car" is defined as "a car not owned by or leased to you or your spouse, if it replaces your car for a short time. Its use has to be with the consent of the owner." It further mandates that in order to be a temporary substitute car, "[y]our car has to be out of use due to its breakdown, repair, servicing, damage or loss. A temporary substitute car is not considered a non-owned car." Thus, the policy provides that in order to qualify as a temporary substitute car, Mobley's primary car would have to be "out of use" for the reasons enumerated in the policy. Mobley's affidavit, however, states that the car was rented purely for pleasure and that her primary car was not out of use for any reason. The plaintiff offers no evidence to counter these assertions and instead, offers her deposition testimony, in which she states that the vehicle was rented as a birthday present for Roberts. Thus, by the plaintiff's own admission, the vehicle was not rented because Mobely's car was "out of use," as defined in the policy and the vehicle does not qualify as a "temporary substitute car." Plaintiff cannot recover under section 4(a), regardless of whether Roberts had consent to operate the vehicle.
Similarly, the plaintiff cannot be an insured under category 4(b). The plaintiff claims that, at the time of the accident, the vehicle qualified as a non-owned car. A "non-owned car" is defined as a vehicle not owned, registered, or leased to the named insured, her spouse, her relatives, any other person residing with the named insured, or an employer of any of those listed persons. In order to qualify for coverage, a non-owned car must be in the lawful possession of its operator. Even if the vehicle qualified as a non-owned car, however, category 4(b) states that it will only provide benefits to an occupant of such a car on the limited condition that the driver was "the first person named in the declarations or that person's spouse." Here, there is no dispute that Roberts is Mobley's daughter and that she is neither the first person named on the declarations or her spouse and therefore ineligible for coverage under category 4(b).
See Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 735, 573 A.2d 740 (1990) holding that a plaintiff was ineligible for payment of uninsured motorist benefits because she did not fall within the definition of "insured" under the policy.
Finally, in support of her objection to the motion for summary judgment, the plaintiff argues that the policy does not mandate that occupants of non-owned vehicles meet the requirements of either category 4(a) or 4(b) in order to qualify for coverage, however, the unambiguous terms of the policy mandate that the plaintiff could only make a claim for uninsured motorist benefits if she fell within the scope of category four. Summary judgment is appropriate as a matter of law where limitations within the underinsured motorist provision are not open to more than one interpretation Kitmirides v. Middlesex Mutual Assurance Co., 65 Conn.App. 729, 733-34, 783 A.2d 1079 (2001), aff'd, 260 Conn. 336, 796 A.2d 1185 (2002). There is no issue of material fact with respect to whether the plaintiff is an insured under the policy and the evidence presented shows she is not.
State Farm's motion for summary judgment is granted.