Opinion
No. CV 06 5002989
May 30, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The issue before this court is whether the plaintiff's revised complaint should be stricken on the ground that the plaintiff has failed to establish that there were no insurance policies applying to the tortfeasor's vehicle in force at the time of the accident, precluding access to the uninsured/underinsured motorist coverage provided by the defendants.
Background
On January 19, 2007, the plaintiff, Barbara Putko, filed a three-count revised complaint against the defendants, Hewlett-Packard Financial Services (Hewlett-Packard), Old Republic Insurance Company (Old Republic) and Nationwide Insurance (Nationwide) for personal injuries she sustained as a result of a motor vehicle accident. The plaintiff alleges the following facts.
At the time of the accident the plaintiff was driving a vehicle owned by Gelco Corporation that was provided to the plaintiff's husband as part of his employment with Hewlett-Packard. The vehicle was self-insured by Hewlett-Packard, but also carried excess coverage with Old Republic. Both policies contained benefits for uninsured/underinsured motorist coverage and were in full force and effect at the time of the incident.
The tortfeasor in this case is Evelio Pagan. At the time of the incident, Pagan was in the course of his employment with Hostess bakeries and was working for its affiliated/subsidiary company, New England Bakery Distributors, LLC (Bakery). The plaintiff brought an action against Pagan, Allfirst Bank (Allfirst), the owner of Pagan's vehicle at the time of the accident, and Bakery. On November 14, 2005, the defendants Bakery, Pagan and Allfirst filed a suggestion of bankruptcy and notice of automatic stay.
The plaintiff claims in the first count of the revised complaint that as a result of the defendants' filing a suggestion of bankruptcy and automatic stay, the tortfeasor is an uninsured/underinsured motorist within the definition of the laws of our state, and pursuant to General Statutes § 38a-334 et seq. She asserts that, as a result, Hewlett-Packard's self-insurance is therefore liable and responsible for the plaintiff's damages. In the second count of the revised complaint, the plaintiff alleges that Old Republic provides excess insurance coverage to Hewlett-Packard which affords uninsured/underinsured motorist coverage for the vehicle driven by the defendant. In the third count of the complaint, the plaintiff alleges that she had a contract in force with Nationwide which provided coverage for uninsured and underinsured motorist benefits and that, because Pagan was an uninsured/underinsured motorist at the time of the incident, Nationwide is liable and responsible for the plaintiff's damages.
On February 1, 2007, the defendants Hewlett-Packard and Old Republic filed a motion to strike the plaintiff's revised complaint on the ground that the plaintiff has failed to establish that there were no policies in force issued to either the tortfeasor or the owner of the vehicle at the time of the accident. On March 8, 2007, the plaintiff filed a memorandum of law in opposition. On March 9, 2007, the defendants filed a reply to the plaintiff's memorandum of law in opposition.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
The defendants, Hewlett-Packard and Old Republic, argue that the plaintiff's complaint is insufficient as a matter of law as, pursuant to § 38a-336a, the tortfeasor's employer's filing for bankruptcy does not preclude the possibility that there were other liability policies in place at the time of the accident.
The plaintiff counters that, pursuant to § 38a-336 et seq., uninsured motorist protection must be extended to her as the tortfeasor's insurer is insolvent. Due to the Bakery, Pagan and Allfirst filing a suggestion of bankruptcy and notice of automatic stay, the plaintiff asserts she is prevented from proceeding against them, particularly as the bankruptcy court extended the automatic stay to claims against the debtors' employees where the conduct alleged was out of the course of, and within the scope of, employment with the debtors. In addition, the plaintiff states that there is a hold harmless agreement in place between Bakery and Allfirst as they are represented by the same counsel thus precluding any action against Allfirst.
Conn. Gen. Stat. § 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, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom." (Emphasis added.) When the plaintiff filed her revised complaint, she attached a copy of the defendants' suggestion of bankruptcy and notice of automatic stay as exhibit A. In this notice, all three defendants move the court to recognize the automatic stay, but the notice states that only the action against the debtor/defendant Bakery is stayed under section 362(a) of the bankruptcy code and that relief from the automatic stay must be obtained prior to any action against the Bakery. This notice is sufficient to stay any action against the Bakery as section 38a-334-6 of the Regulations of Connecticut State Agencies provides: "`Uninsured motor vehicle' includes a motor vehicle insured against liability by an insurer that is or becomes insolvent." (Emphasis added.)
However, the notice of automatic stay refers only to one defendant, the Bakery. In the plaintiff's objection to the motion to strike, she adds that on November 23, 2004, the Bankruptcy Court extended the automatic stay to claims against the debtors' employees, where the conduct alleged was out of the course of, and within the scope of, employment with the debtors. A copy of this extended automatic stay is referenced as exhibit B. Although there is no exhibit B attached to the court's copy of the plaintiff's objection, it is irrelevant. As this missing exhibit referencing the extension of the automatic stay to Pagan is not part of revised complaint, it can not be addressed by the court in this motion.
In addition, in the revised complaint, the plaintiff pleads that Pagan should be considered an uninsured and/or underinsured motorist based on the pending bankruptcy of the company that would otherwise be responsible and liable for the damages to the plaintiff, but the plaintiff neglects to plead that Pagan is also a party to the automatic stay. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). As the notice extending the automatic stay to Pagan is not part of the revised complaint nor is it pleaded in the complaint itself, it can not be considered by the court. As such, for the purpose of this motion to strike, it has not been determined if Pagan is an uninsured motorist. Since Pagan, as the tortfeasor, has not been shown to be an uninsured motorist, the court must determine if any liability policy he may have had in effect at the time of the accident must be exhausted before the plaintiff's uninsured motorist coverage can be accessed.
Section 38a-336(b) provides in relevant part: "An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance polices applicable at the time of the accident have been exhausted by payment of judgments or settlements . . ." In Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 663 A.2d 377 (1995), the court undertook an analysis of § 38-336(b) and held that under this section the plaintiff is required to exhaust the liability limits of both the owner and the operator of an at fault vehicle. The court reasoned: "Section 38a-336(b) established the exhaustion requirement for underinsured motorist coverage. This subsection provides that an insurance company is obligated to make payment to its insured `after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . .' (Emphasis added.) The word `all' and the plural words `bonds' and `policies' found in § 38a-336(b) would be rendered meaningless if not read to require exhaustion of all the policies applicable to the underinsured vehicle at the time of the accident. The language of the statute clearly anticipates circumstances under which coverage by more than one liability policy will be available, and a case such as this, in which there is a policy covering the automobile . . . and a different policy covering the liability of the operator . . ." Id., 810-11.
Although Ciarelli v. Commercial Union Ins. Co, supra, 234 Conn. 807, involves the analysis of an underinsured vehicle and not an uninsured vehicle, our Supreme Court has noted in certain instances a discussion of "`underinsured' motorist coverage encompass[es] uninsured motorist coverage as well." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 21 n. 4, 699 A.2d 964 (1997).
The accident in the Ciarelli case is analogous to the instant case. In both cases, the collision involved only one at-fault vehicle and the owner of the vehicle was not the operator of the vehicle at the time of the accident. As the relationship of the parties to the accident in Ciarelli is the same as in the case in hand, the plaintiff is required to exhaust all potential policies, including any policy that Pagan may have had.
Additionally, in Kronberg v. New Hampshire Ins. Co., 69 Conn.App. 330, 335, 794 A.2d 561 (2002), the Appellate Court upheld the trial court's decision that the insured must exhaust the liability insurance of one of the tortfeasors, as required by § 38a-336, regardless of the insured's belief that there was no liability coverage available as this belief was not sustained by a legal determination and was therefore insufficient to prove that he had exhausted all the liability coverage available before accessing uninsured motorist coverage. See also Orkney v. Hanover Ins. Co., Superior Court, judicial district of New London at Norwich, Docket No. 111660 (April 28, 1998, Martin, J.) ( 22 Conn. L. Rptr. 66), aff'd 248 Conn. 195, 727 A.2d 700 (1999) (requiring the plaintiff to exhaust the liability coverage of both the operator and owner of the tortfeasor vehicle before filing a claim for underinsured motorist coverage); Maryland Casualty Co. v. Callahan, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0552409 (March 28, 1996, Hale, J.) ( 16 Conn. L. Rptr. 443) (applying the holding of Ciarelli that § 38a-336(b) requires the plaintiff to "exhaust the policy limits of both the owner and the operator of the tortfeasor vehicle").
In Kronberg v. New Hampshire Ins. Co., supra, 69 Conn.App. 332, the insured was a driving school instructor using a vehicle owned by the school who was injured when the vehicle was being driven by a student driver. As the student was a permissive driver of the school's vehicle, the student was insured under the liability portion of the policy and the instructor should have filed a claim against the school's insurance. The instructor did not bring an action against the student or the school as he did not believe there was liability coverage available.
Section 38a-336c(a) provides: "An insured, when making a claim for uninsured or underinsured motorist benefits, shall make reasonable efforts to establish what liability coverage there is for the owner and operator of an alleged uninsured or underinsured vehicle." In the present case, there is no mention that the plaintiff has made any effort to determine if Pagan had liability coverage at the time of the accident. As the plaintiff is required to exhaust the policies of both the owner and operator of the tortfeasor vehicle, it behooves the plaintiff to make a reasonable inquiry into whether Pagan was covered by any liability policy at the time the incident occurred.
Conclusion
Based on all of the foregoing, the defendants' motion to strike the plaintiff's complaint is granted.
CT Page 7687