Opinion
No. CV 99 0587791 S
April 14, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FACTS
On August 25, 1999, the plaintiff, Stephen Piersa (Piersa), filed a three-count amended complaint against the defendants, Phoenix Insurance Co. (Phoenix) and the city of Hartford (city). This action arises out of injuries and losses allegedly sustained as a result of an automobile accident on January 15, 1997, involving Piersa and a third party. Specifically, it is alleged that on January 15, 1997, Piersa was employed by the city as a police officer and was operating a police cruiser in the course and scope of his employment when he collided with the third party. It is further alleged that at the time of the accident, Piersa had an automobile insurance policy with Phoenix which provided coverage for uninsured/underinsured motorist benefits and that the city, as a self-insured municipality and owner of the police cruiser involved in the collision, was also obligated to provide uninsured motorist coverage.
Count one alleges breach of contract and a violation of General Statutes § 38a-336, the uninsured/underinsured motorist coverage statute, against Phoenix for failing to provide underinsured motorist benefits to Piersa for the injuries and losses he sustained as a result of the automobile accident.
Count one was subsequently withdrawn by Piersa on April 23, 2002.
Count two alleges violations of General Statutes §§ 14-129, 38a-371 and 38a-336 against the city for failing to provide underinsured motorist benefits to Piersa whom, as an operator of the city-owned and self-insured motor vehicle was entitled to such benefits.
Count three alleges that the city acted in bad faith with respect to the settlement of Piersa's claim in that it refused to pay Piersa any uninsured motorist benefits for the injuries and losses he sustained as a result of the accident.
On May 22, 2002, the city filed a motion for summary judgment as to count two, accompanied by a memorandum in support. The city moves for summary judgment on the ground that (1) it is not obligated to provide uninsured motorist benefits to Piersa and, (2) even if it is obligated to provide such benefits, it is entitled to a set-off from the amount of the benefits by the amount of payments already made to Piersa by his workers' compensation carrier. In support of its motion, the city offers two affidavits of Candida Valeri, Risk Manager for the city of Hartford.
On July 31, 2002, Piersa filed a memorandum in opposition. Piersa counters that (1) the city is obligated to provide underinsured motorist coverage to him and (2) that the city has not shown that it is permitted to reduce its payment obligation through a set-off by the amount of the workers' compensation benefits paid to him.
Though the July 31, 2002 pleading filed by Piersa is entitled "Motion for Summary Judgment," the memorandum of law attached thereto is entitled "Plaintiff's Objection to the Defendant's Motion for Summary Judgment" and the arguments contained therein are in the nature of an opposition to the city's motion. The court, as such, treats it as an opposition to the city's motion, not as a cross motion for summary judgment.
DISCUSSION
"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 . . ." (Citations omitted; internal quotation marks omitted.) Cunha v. Colon, 260 Conn. 15, 18 n. 6, 792 A.2d 832 (2002). "A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "[T]he genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Buell v. Greater New York Mutual Ins., 259 Conn. 527, 556, 791 A.2d 489 (2002). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." Id.
Count two, against the city, alleges a violation of, inter alia, § 38a-336 for failing to provide underinsured motorist benefits to Piersa. The city moves for summary judgment as to the second count on the ground that (1) it is not required to provide underinsured motorist coverage with respect to the vehicle in question because, pursuant to the authority of Willoughby v. New Haven, 254 Conn. 404, 757 A.2d 1083 (2000), the vehicle is not a "private passenger motor vehicle," as defined by § 38a-363 (e). Alternatively, the city moves for summary judgment on the ground that even if the city is required to provide underinsured motorist coverage, it is entitled to a set-off from payments made by Piersa's workers' compensation carrier, pursuant to the authority of Boynton v. New Haven, 63 Conn. App. 815, 779 A.2d 186, cert. denied, 258 Conn. 205, 782 A.2d 136 (2001). (City's Memorandum, p. 1.) The city argues that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
Piersa counters that the police cruiser he was operating at the time of the accident is a "private passenger motor vehicle" and the city, therefore, is obligated to provide underinsured motorist coverage. (Piersa's Memorandum, pp. 1-3.) Piersa further argues that the city has provided no authority for its argument that it is entitled to reduce the amount of any underinsured benefits owed to Piersa by the amount of the workers' compensation benefits already paid to him. (Piersa's Memorandum, p. 4.) Piersa argues that there exists a genuine issue of material fact and that summary judgment should be denied.
The present issue requires analysis of several statutory provisions. General Statutes § 38a-336 (a) (1) provides, in relevant part: "Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334 . . ."
Section 38a-334 (a) provides, in relevant part: "The Insurance Commission shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies issued after the effective date of such regulations and covering private passenger motor vehicles, as defined in subsection (e) of section 38a-363 . . ."
Section 38a-363 (e) defines the term "private passenger motor vehicle" as a: "(1) Private passenger type automobile; (2) station-wagon-type automobile; (3) camper-type motor vehicle; (4) high-mileage-type motor vehicle, as defined in section 14-1; (5) truck-type motor vehicle with a load capacity of fifteen hundred pounds or less, registered as a passenger motor vehicle, as defined in said section, or as a passenger and commercial motor vehicle, as defined in said section, or used for farming purposes; or (6) a vehicle with a commercial registration, as defined in subdivision (12) of said section. It does not include a motorcycle or motor vehicle used as a public or livery conveyance."
Sections 38a-334, 38a-336 and 38a-363 (e), when read together, clearly delineate the classes of motor vehicles that require underinsured motorist coverage. The threshold inquiry in the present case is whether the vehicle at issue falls within one of the enumerated classes of vehicles in § 38a-363 (e), thereby obligating the city to provide underinsured motorist coverage for that vehicle.
As stated previously, in support of its argument that the police cruiser at issue is not a "private passenger motor vehicle" and, therefore, not required to carry underinsured motorist coverage, the city relies on Willoughby v. New Haven, supra, 254 Conn. 404. In Willoughby, the plaintiff firefighter sought to recover underinsured motorist benefits from the defendant city, its employer, for injuries sustained by the plaintiff during the course of his employment and while he was operating a city fire department emergency vehicle. The issue was whether the vehicle was a "private passenger motor vehicle" by virtue of § 38a-363 (e) (6), which includes within the definition of "private passenger motor vehicle" a vehicle with a commercial registration. The court determined: "We conclude that the definition of commercial registration does not encompass the type of registration possessed by the vehicle at issue in this case." Id., 421.
The city's reliance on Willoughby is misplaced. Though the court did hold that the city was not required to provide underinsured motorist coverage, it reached this conclusion on a ground unrelated to the present case. In the present case, Piersa's claim that the police cruiser at issue is a private passenger motor vehicle is based on § 38a-363 (e) (1), which includes "private passenger type automobile" in the definition of "private passenger motor vehicle." In Willoughby, the plaintiff's claim, and the court's analysis, was based on § 38a-363 (e) (6), which includes vehicles with a commercial registration in the definition of "private passenger motor vehicle." The court specifically stated: "We constrain our analysis to whether the vehicle at issue is a private passenger motor vehicle by virtue of subdivision (6) of § 38a-363 (e). . . We conclude that the definition of commercial registration does not encompass the type of registration possessed by the vehicle at issue in this case." Id., 420-21. The court concluded: "Thus, the vehicle at issue in this case is not a `motor vehicle with a commercial registration' pursuant to § 38a-363 (e) (6), and therefore does not fall under the private passenger motor vehicle classification in § 39a-334 for which underinsured motorist coverage is mandated pursuant to § 38a-336." Id., 423. The court did not address § 38a-363 (e) (1), the subsection upon which Piersa bases his assertion that the police cruiser is a "private passenger motor vehicle." As such, Willoughby does not provide support for the city's argument that the police cruiser is not a "private passenger motor vehicle."
Furthermore, at least two Superior Court cases contradict the city's reasoning. In Serra v. West Haven, Superior Court, judicial district of New Haven, Docket No. CV 01 0447771 (January 8, 2002, Robinson, J.) ( 31 Conn.L.Rptr. 210), the court was faced with an almost identical issue. In Serra, the plaintiff, a West Haven police officer, was operating a police cruiser owned by the defendant when she was involved in a collision caused by the negligence of another individual. The tortfeasor was underinsured and the plaintiff made an underinsured motorist claim to the defendant for the difference between his damages and the tortfeasor's insurance limits. The city moved for summary judgment on the ground that it is not obligated to provide underinsured motorist benefits for the vehicle at issue because it is not a "private passenger motor vehicle." The court's analysis focused on § 38a-363 (e) (1). The court reasoned that the police cruiser is similar to the make and model of vehicle that is available for sale to the general public. The city raised the argument that the vehicle is used by the police as an emergency vehicle and, therefore, it should not be covered by the provisions of § 38a-363 (e) (1). The court determined that "the statute clearly covers not only private passenger vehicles, but private passenger type motor vehicles. The fact that the vehicle was used exclusively as an emergency vehicle does not exempt it from the provisions of the statute for the reason that such use changes the type of vehicle that it is." (Emphasis in original.) Id., 212. The court concluded that the city was obligated to provide underinsured motorist benefits for the police cruiser.
This reasoning is echoed in Joel v. Terribile, 39 Conn. Sup. 165, 472 A.2d 364 (1983), where the plaintiff was injured when his police cruiser collided with another vehicle. The sole issue before the court was whether the police car fell under the statutory definition of "private passenger motor vehicle," as set forth in § 38a-319 (g), now § 38a-363 (e). The court concluded: "The use by the legislature of the word `type' in the definition of what is meant by the term `private passenger motor vehicle' is considered by this court of controlling significance. The statute concerns itself with the use to which a motor vehicle is being put only in a very limited way . . . In this case the motor vehicle being operated by the defendant was clearly a private passenger type automobile. The fact that it may have been modified in various ways to accommodate it for use as a police car does not change the type of automobile that it was." Id., 166-67.
If the legislature had not inserted the word "type" in the definition of the vehicle required to carry uninsured motor vehicle coverage, this court would have put the emphasis on the word "private" and declared that a police cruiser being used as such was clearly not a "private" motor vehicle. However, as noted in Joel v. Terribile, supra, the statute is concerned primarily with designating vehicles by their type i.e. "general form, structure, plan or style," as defined in Webster's dictionary, rather than by their use.
In the opinion of this court the city as a matter of law was obligated to provide uninsured/underinsured motorist coverage for the vehicle in question. Therefore, the Defendant's Motion for Summary Judgment must fail.
The city further moves for summary judgment on the ground that even if the city is obligated to provide underinsured motorist coverage for the police cruiser, the required statutory minimum coverage has already been exceeded by Piersa's receipt of workers' compensation benefits. In support of this argument, the city relies on Boynton v. New Haven, supra, 63 Conn. App. 815. In Boynton, the plaintiff was operating a police motorcycle when he was involved in a collision caused by the negligence of a third party. This individual was underinsured and the plaintiff subsequently brought an underinsured motorist claim against the city. The city filed a motion for summary judgment on the ground that its liability was limited to the statutory minimum of $20,000, which had already been exceeded by the plaintiff's receipt of $25,000 from the tortfeasor's insurance carrier. The court concluded that, while a municipality is required to provide uninsured/underinsured motorist coverage for the statutorily enumerated classes of motor vehicles, this coverage is not unlimited. Id., 826-27. The court determined that the statutory minimum of $20,000, specified in § 14-112, delineates the limit of a city's fiscal obligation with respect to underinsured motorist coverage and that no statutory provision imposes a greater obligation. The court then concluded that "[o]nce it is determined that the statutory minimum is applicable, the plaintiff's receipt of $25,000 from [the tortfeasor's] insurance carrier forecloses his access to further reimbursement from the city." Id., 827-28.
In the present case, Piersa received $42,261.69 in workers' compensation benefits. (Affidavit of Candida Valeri, ¶ 5.) Applying the reasoning of Boynton, it appears that this amount exceeds the statutory minimum of $20,000 that the city is obligated to provide. As such, Piersa is foreclosed from seeking underinsured motorist benefits from the city in the present matter.
It is the opinion of this court that the amount of workers' compensation benefits paid to Piersa exceeds the statutory minimum the city is required to pay with respect to underinsured motorist coverage. Therefore, even though the city is obligated to provide underinsured motorist coverage for the vehicle at issue, Piersa is foreclosed from seeking such coverage.
CONCLUSION
The city's motion for summary judgment as to count two of the amended complaint is granted.
Hale, JTR