Opinion
No. CV 09 5015726 S
June 24, 2010
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT (#103) AND JOINT CROSS MOTION FOR SUMMARY JUDGMENT (#110)
I BACKSTORY
The plaintiff, Progressive Casualty Insurance Company, commenced this declaratory judgment action on November 9, 2009, against the defendants, Sarah Farkas, Arthur Antunes, K.J. Lanphear, LLC, doing business as Black Rock Tavern Restaurant, Eric Caban and Danielle Cammilletti. In the complaint, the plaintiff alleges as follows. Farkas was named as a defendant in three lawsuits pending in the judicial district of Waterbury in which Antunes, docket number CV 08 5009972, Cammilletti, docket number CV 08 5011034, and Caban, docket number CV 09 5012630, are the plaintiffs. In each of the three lawsuits, it was alleged that, on June 21, 2008, Farkas negligently drove southbound in the northbound lane of Route 8, and that such negligent driving caused injury to each of the complaining parties. Farkas' insurance policy with the plaintiff, which was effective on June 21, 2008, provided that the plaintiff would pay liability up to $50,000 per person and $100,000 per "accident." Antunes, Cammilletti and Caban each alleged that he or she was injured in a separate "accident"; however, plaintiff argues that under the policy language, they were all injured in the same single "accident." The plaintiff asks that the court render a declaratory judgment finding that the three injuries resulted from a single "accident" and, therefore, that the total coverage available to Farkas for her liability in all three actions combined is $100,000, the limit for a single "accident."
The plaintiff erroneously refers to the judicial district of Fairfield at Waterbury. As the plaintiff likely intended to allege, the lawsuits are in fact pending in the judicial district of Waterbury at Waterbury rather than the judicial district of Fairfield at Bridgeport.
II JOURNEY OF THE PLEADINGS
The plaintiff filed its motion for summary judgment (#103) on April 13, 2010, along with a memorandum of law. Thereafter, on May 6, 2010, the defendants filed their joint cross motion for summary judgment (#110) along with a memorandum of law, which also operated as an objection to the plaintiff's motion. The plaintiff has not filed any responsive pleading with regard to the cross motion for summary judgment. The court heard oral argument on both motions at short calendar on June 1, 2010.
III DISCUSSION A Standard for Summary Judgment
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The court notes that the plaintiff has not submitted any evidence in support of its motion for summary judgment, whereas the defendants have submitted evidence in opposition to the plaintiff's motion and in support of their joint cross motion. While generally, "[a]s the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation"; Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995); a court may nevertheless grant summary judgment in favor of the movant if the evidence submitted by the opponent warrants it. See Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004). Therefore, the court will decide both motions on the basis of the evidence submitted by the defendants.
B Material Facts
The material facts for the purposes of both motions are undisputed by the parties and are as follows. On June 21, 2008, at 2:05 AM, on Route 8 approximately five-tenths of a mile south of Exit 30 in Waterbury, Farkas was driving south in the left northbound lane with her headlights off, and Cammilletti was driving north in the same lane. Once Cammilletti noticed that Farkas was coming at her, she swerved to the right to get out of the way, losing control of her vehicle. The two vehicles did not collide. Cammilletti tried unsuccessfully to regain control while in the right lane and crashed into the guardrail. Farkas continued driving southbound without stopping. Trooper Rodney Valdes of the State Police responded to the incident and filed an accident report.
Shortly thereafter, at 2:07 AM and approximately six-tenths of a mile south of Exit 29 in Naugatuck, Farkas was continuing to travel south in the left northbound lane with her headlights still off. Antunes, in whose car Caban was a passenger, was driving north in that same lane behind another car, which was in turn behind a Naugatuck police vehicle. Both the police vehicle and the middle car were able to swerve out of Farkas' way. Antunes noticed Farkas and attempted to swerve to avoid her, but could not, and the two automobiles collided head on. The collision occurred 1.95 miles south of the place where Cammilletti had earlier swerved to avoid the Farkas' vehicle. Trooper Jonathan Naples of the State Police responded to the incident and filed an accident report.
Following the second collision, Farkas was taken to St. Mary's Hospital. While Valdes was interviewing her there, he noticed that she "appeared to be highly intoxicated." (Defendant's Exhibit A., p. 2.) Farkas was arrested on January 29, 2009, and charged with, among other offenses, Driving Under the Influence, in violation of General Statutes § 14-227a.
The operative insurance policy between Farkas and the plaintiff provided in relevant part: "Subject to the Limits of Liability . . . we will pay damages . . . for bodily injury and property damage for which an insured person becomes legally responsible because of an accident arising out of the . . . use of a vehicle . . ." (Defendants' Memorandum of Law, Exhibit E, pp. 5-6.) An "accident" is defined as "an unexpected, and unintended occurrence." (Defendants' Memorandum of Law, Exhibit E, p. 2.) The term "occurrence" is undefined. The policy provided for a bodily injury liability limit of $50,000 per person and $100,000 per accident.
C Analysis
"Construction of an insurance contract presents a question of law . . . An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract . . . In accordance with those principles, [t]he 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 . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning." (Citation omitted; internal quotation marks omitted.) Merrimack Mutual Fire Ins. Co. v. Ramsey, 117 Conn.App. 769, 771, 982 A.2d 195, cert. denied, 294 Conn. 920, 984 A.2d 67 (2009).
Whether the facts described above constitute a single "accident" under the policy depends on whether they are a single "occurrence," a term undefined in the policy. Under Connecticut law, however, the term "occurrence" has an unambiguous meaning — "something that takes place, especially something that happens unexpectedly without design." (Internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 255 Conn. 295, 307, 765 A.2d 891 (2001). To determine the number of "occurrences," Connecticut follows New York law; see id., 305; and uses the "events triggering liability" test or, simply, the "event test." Id., 313-14. The rationale for the event test is that "it `correspond[s] most with what the average person anticipates when he [or she] buys insurance and reads the "accident" limitation.' [ Arthur A. Johnson Corp. v. Indemnity Ins. Co. of North America, 7 N.Y.2d 222, 229, 164 N.E.2d 704, 196 N.Y.S.2d 678 (1959)]." Martanis v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 99 0065733 (February 8, 2002, Nadeau, J) ( 31 Conn. L. Rptr. 488).
The plaintiff argues that it is entitled to summary judgment because the single "event" that triggered liability on the part of Farkas to Antunes, Cammilletti and Caban was her singular act of negligent driving, i.e., driving south in the northbound lane. The defendants argue that the "event" is not the negligent driving, but that the "events" are the two collisions, which were merely caused by the negligent driving. They also argue that the two collisions were sufficiently far apart in space and time that they could not be considered part of the same "occurrence."
The plaintiff is incorrect in its assertion that the act of negligent driving constitutes the "event." The "event" is the point in the causal chain at which time the liability is triggered. See Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., supra, 255 Conn. 322. It is not determined by reference to any point earlier in causal chain, even if, at such point, there was potential for future injury. Id.; see also Sun v. Traveler's Indemnity Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0268822 (May 9, 2001, Booth, J.) ( 29 Conn. L. Rptr. 522) (rejecting plaintiff's contention that number of negligent acts leading to injury to jogger from dog attack was relevant measure of number of "events," instead holding dog attack itself constituted "event"). In other words, the "event" is the "event for which the insured becomes liable, and not some antecedent cause of the injury." Champion International Corp. v. Continental Casualty Co., 546 F.2d 502, 508 (2d Cir. 1976) (Newman, J., dissenting), cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977). Farkas' act of driving in the incorrect lane did not in itself trigger liability on her part. The defendants are correct in arguing that Farkas' liability was triggered by the Cammilletti's collision with the guardrail and Farkas' collision with Antunes. Whether the two collisions are in fact the same "event" and therefore "occurrence," however, requires further analysis. Nevertheless, under the event test, the act of negligent driving cannot be the relevant "event."
The court must determine whether the two collisions triggering Farkas' liability do or do not constitute one "occurrence" as a matter of law or, alternatively, whether the issue requires resolution by the trier of fact. To determine this, three factors are relevant: the existence of a close (1) temporal and (2) spatial proximity between the two collisions, and (3) whether the two collisions were part of the same "causal continuum," unbroken by intervening factors. See Appalachian Ins. Co. v. General Electric Co., 8 N.Y.3d 162, 171-72, 863 N.E.2d 994, 831 N.Y.S.2d 742 (2007). In other words, considering whether the first collision was a cause of the second and how close together they were in space and time, would an average person deem them to constitute one accident? See Hartford Accident Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 174, 305 N.E.2d 907, 350 N.Y.S.2d 895 (1973) ("We think in common understanding and parlance there was here but a single, inseparable `three-car accident.'" (Emphasis added.)).
Each of the three factors militates against finding the existence of a single "occurrence. The temporal relationship between the two collisions was hardly "close." The two-minute time difference is much greater than contemplated by the case law for a single "occurrence." Compare, e.g., Hartford Accident Indemnity Co. v. Wesolowski, supra, 33 N.Y.2d 174 (noting that second of two collisions occurred "an instant" after first) with Martanis v. Liberty Mutual Fire Ins. Co., supra, 31 Conn. L. Rptr. 488 (finding issue of fact as to number of occurrences where, five seconds after first collision, third car appears and causes second collision with first car). The 1.95 mile distance between the two collisions could not be considered "close" either, especially since the two collisions occurred far enough apart to warrant two different responding officers and two separate accident reports. Compare Hartford Accident Indemnity Co. v. Wesolowski, supra, 33 N.Y.2d 174 (noting that, for two collisions occurring 100 feet apart that it found to constitute single "occurrence," there was one accident report filed). Finally, there is no causal relationship between the first and second collisions. Cammilletti never collided with Farkas; her injuries occurred because she lost control of her car after swerving out of Farkas' way. Farkas kept driving southbound as before. Had Cammilletti not been on the road that night, the second collision with Antunes would still have occurred. Compare Arthur A. Johnson Corp. v. Indemnity Ins. Co. of North America, supra, 7 N.Y.2d 225, 229-30 (deeming significant, in finding existence of two "occurrences" of flooding in sub-basements of two buildings on adjacent lots, absence of causal relationship between breaches, due to heavy rainstorm, of two independent temporary walls built to protect sub-basements during pendency of subway construction project).
It is clear, based on the above factors, that an average person would believe that the two collisions were not part of the same accident. Therefore, a reasonable fact finder could not conclude that the two collisions were part of the same "occurrence." Accordingly, as a matter of law, the two collisions did not constitute a single "accident" under the terms of the plaintiff's policy with Farkas.
IV CONCLUSION
The court finds, based on the above analysis, that there is no genuine issue of material fact. It also finds that, because, as a matter of law, there was not one "occurrence" and thus not one "accident," the plaintiff is not entitled to judgment as a matter of law while the defendants are entitled to judgment as a matter of law. Therefore, the plaintiff's motion for summary judgment is denied and the defendants' joint cross motion for summary judgment is granted.
It is so ordered this 24th day of June 2010.