Opinion
No. CV 09-5024679
May 5, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
FACTS
The plaintiffs, Jeffrey Reynolds and Michelle Reynolds, husband and wife, initiated this underinsured motorist action against the defendants, Connecticut Interlocal Risk Management Agency (CIRMA) and the town of Suffield, on November 14, 2008. The defendants filed an answer and special defense on April 17, 2009. An amended complaint was filed by the plaintiffs on May 8, 2009. The first count of the amended complaint alleges the following facts.
CIRMA is in the business of providing insurance policies to municipalities in the state of Connecticut. On July 1, 2004, the town of Suffield entered into a contract of insurance with CIRMA (the policy), which included coverage for uninsured and underinsured motorist claims. Jeffrey Reynolds is employed as a police officer by the town of Suffield. On November 19, 2004, Jeffrey Reynolds was stopped in his police cruiser, with his emergency lights activated, behind another vehicle along a street in Suffield. While Jeffrey Reynolds was stopped and sitting in the driver's seat of his vehicle, the operator of another vehicle (the tortfeasor) caused her car to collide into the rear of Jeffrey Reynolds' police cruiser, causing the cruiser to strike the vehicle in front of it. As a result of the collision, caused by the tortfeasor's negligence and carelessness, Jeffrey Reynolds sustained several permanent or likely permanent injuries.
Thereafter, Jeffrey and Michelle Reynolds recovered $100,000 in damages from the tortfeasor, which exhausted all of the tortfeasor's vehicle's bodily injury insurance. Therefore, the vehicle is an "underinsured vehicle" within the meaning of General Statutes § 38a-336 and the policy. Since the amount recovered by Jeffrey and Michelle Reynolds has exhausted all bodily injury insurance policies applicable to the tortfeasor's vehicle, the plaintiffs allege that CIRMA and the town of Suffield are responsible for both Jeffrey and Michelle Reynolds's injuries and losses up to the limit of the town of Suffield's "uninsured/underinsured motorist coverage limits."
Section 38a-336(e) defines an "underinsured motor vehicle" as "a motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person."
Count one of the complaint claims that the defendants are responsible for both Jeffrey and Michelle Reynolds's "injuries, damages and losses," but does not allege any loss or damage as to Michelle Reynolds until count two.
The second count sets forth a loss of consortium claim by Michelle Reynolds. It adopts the allegations of the first count and additionally alleges that, as a result of Jeffrey Reynolds's injuries, Michelle Reynolds has lost the "consort, society, companionship and affection of [Jeffrey] Reynolds." On July 15, 2009, CIRMA filed a motion for summary judgment on count two and a memorandum in support of that motion. In support, CIRMA attached an unauthenticated copy of the policy. On August 5, 2009, the plaintiffs filed a memorandum in opposition to CIRMA's motion. CIRMA filed a reply memorandum to the plaintiffs' memorandum on August 7, 2009.
CIRMA has attached what its asserts to be a copy of the alleged policy to its memorandum in support of its motion for summary judgment, but, in violation of Practice Book § 17-45, there is no indication that it is a certified copy of the document, and CIRMA has not submitted any affidavits or other documentation authenticating the purported policy. See New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005). However, "our Supreme Court has stated that parties may `knowingly [waive] compliance with the procedural provisions of the Practice Book relating to motions for summary judgment.' Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, our Supreme Court has stated, `[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.' Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003)." Fabrizio v. Bristol Housing Authority, Superior Court, judicial district of New Britain, Docket No. CV 05 5000208 (October 21, 2005, Shapiro, J.). In the present case, although the document submitted by the defendant is unauthenticated, there has been no objection to its submission by the plaintiffs. Therefore, this court "concludes that the [plaintiffs have] waived any objection to the unauthenticated evidence and accordingly will consider such evidence in deciding the defendant's motion for summary judgment." Martin v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4002886 (January 17, 2007, Tobin, J.), aff'd, 108 Conn.App. 710, 950 A.2d 19 (2008).
The motion was heard at the short calendar on February 8, 2010.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989); see Practice Book § 17-49. "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 791, 936 A.2d 625 (2007).
CIRMA argues that it is entitled to summary judgment on the ground that Michelle Reynolds cannot recover from CIRMA for her alleged injuries and losses because Michelle Reynolds is not an insured under the terms of the policy or otherwise entitled to recover from CIRMA. The plaintiffs argue that because Jeffrey Reynolds is "an insured" under the policy, and because Michelle Reynolds's loss of consortium claim is "derivative and inextricably attached" to Jeffrey Reynolds' injury claim, Michelle Reynolds should be afforded coverage under the policy.
The only disputed issue before the court is whether Michelle Reynolds is "an insured" under the town of Suffield's uninsured/underinsured motorist policy issued by CIRMA. Section 38a-336 governs uninsured and underinsured motorist coverage. "[T]he public policy of § 38a-336 is to give a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the uninsured motorist had maintained an adequate policy of liability insurance." Conzo v. Aetna Ins. Co., 243 Conn. 677, 686, 705 A.2d 1020 (1998). Section 38a-336(f) explicitly requires coverage for employees of a named insured, providing in pertinent part, "an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured's otherwise applicable uninsured and underinsured motorist coverage." While the language of § 38a-336 explicitly provides for coverage for employees of a named insured such as Jeffrey Reynolds, there is no such statutory provision contained in § 38a-336 for spouses of employees. "[C]onstruction of a contract of insurance presents a question of law for the court . . ." Taylor v. Mucci, 288 Conn. 379, 384, 952 A.2d 776 (2008). Since the only disputed issue is whether Michelle Reynolds is an insured under the terms of the policy, there are no genuine issues of material fact.
In its reply memorandum, CIRMA states, "In this case, the question before the court is not whether benefits for loss of consortium may be recovered under the provisions of an [uninsured/underinsured motorist] policy. Instead, the question before the court is a prerequisite issue; whether Michelle Reynolds is an insured under the CIRMA policy." Accordingly, the court concludes that it is undisputed that if Michelle Reynolds is an insured, that she is entitled to pursue her loss of consortium claim under the policy.
"An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in 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." (Citations omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 257 Conn. 812, 826-27, 778 A.2d 168 (2001).
"[E]ach and every sentence, clause, and word of a contract of insurance should be given operative effect. Since it must be assumed that each word contained in an insurance policy is intended to serve a purpose, every term will be given effect if that can be done by any reasonable construction . . ." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 539, 791 A.2d 489 (2002). "If the words in the policy are plain and unambiguous the established rules for the construction of contracts apply . . . and courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties . . . We note, further, that a court will not torture words to import ambiguity, where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings . . . The fact that the parties advocate different meanings of [policy language] does not necessitate a conclusion that the language is ambiguous . . . There is no presumption that language in insurance contracts is inherently ambiguous. Only if the language manifests some ambiguity do we apply the rule that ambiguous insurance contracts are to be construed in favor of insureds and to provide coverage." (Citations omitted; internal quotation marks omitted.) Id., 545.
The policy language applicable to the disputed issue is contained in coverage section E of the policy, titled "UNINSURED/UNDERINSURED MOTORISTS COVERAGE." Subsection 1 of that section, titled "Coverage Agreement" provides in pertinent part, "a. We will pay all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an ` uninsured/underinsured auto.' The damages must result from ` bodily injury' sustained by the insured caused by an ` occurrence.' The owner's or driver's liability for these damages must result from the ownership, maintenance, or use of the ` uninsured/underinsured auto.'" (Emphasis in original.) Under this subsection, it is unambiguous that to be able to recover for her alleged loss of consortium, Michelle Reynolds must be "an insured" under the policy. The definition of that term is contained in subsection 3 of section E, titled "Who Is An Insured." That subsection provides, in pertinent part, that "an insured" is: "a. You[.] b. If you are an individual, any " family member." c. Anyone else " occupying" a covered " auto" or a temporary substitute for a covered " auto." . . . d. Anyone for damages he or she is entitled to recover because of " bodily injury" sustained by another insured." (Emphasis in original.) Therefore, the policy unambiguously contains four definitions of who is an insured under the uninsured/underinsured motorists coverage section of the policy.
The Supreme Court first recognized the action for loss of consortium in Hopson v. St. Mary's Hospital, 176 Conn. 485, 586, CT Page 10339 408 A.2d 260 (1979). Connecticut Ins. Guaranty Ass'n. v. Fontaine, 278 Conn. 779, 785, 900 A.2d 18 (2006). "A cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions . . . Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse." (Citation omitted; internal quotation marks omitted.) Id., 785-86.
In its memorandum in support of its motion for summary judgment, CIRMA argues that it is entitled to judgment as a matter of law on count two because Michelle Reynolds is not an insured under the policy. But in making that argument in its memorandum, CIRMA misrepresents the extent of the definitions of who is an insured under the policy, in apparent disregard of the obligations for candor in pleading. In detailing the definitions of who is "an insured," rather than setting forth the four definitions contained in the policy, CIRMA represents that only the first three definitions of subsection 3 are contained therein. CIRMA goes on to argue that Michelle Reynolds does not qualify as an insured under those three definitions and therefore concludes that "Michelle Reynolds does not meet any of the definitions of an insured under the CIRMA policy." The court agrees with CIRMA that Michelle Reynolds does not qualify as an insured under the first three definitions of subsection 3. However, Michelle Reynolds does qualify as an insured under the fourth definition.
The fourth definition contained in subsection 3 includes as an insured "[a]nyone for damages he or she is entitled to recover because of " bodily injury" sustained by another insured." (Emphasis in original.) As conceded by CIRMA in its reply memorandum to the plaintiffs' objection, Jeffrey Reynolds qualifies as an insured under the third definition of subsection 3 because he was occupying a covered automobile when he sustained the bodily injury giving rise to his insurance claim. As a result of Jeffrey Reynolds's bodily injury, Michelle Reynolds alleges that she suffered a loss of consortium. Therefore, since Michelle Reynolds claims that she is entitled to damages because of bodily injury sustained by Jeffrey Reynolds, an insured, Michelle Reynolds qualifies as an insured under the explicit terms of section E subsection 3(d) of the policy.
Although it is undisputed that Michelle Reynolds, as an insured, is entitled to bring her loss of consortium claim under the terms of the policy, even if it were challenged, case law supports that conclusion. Section 38a-336 "does not require an insurance company to provide coverage for loss of consortium under an uninsured motorist policy. However, a statute's failure to require uninsured motorist coverage does not mandate a limitation of such coverage. Chmielewski v. Aetna Casualty Surety Co., 218 Conn. 646, [673,] 591 A.2d 101 (1991)." Smith v. Amica Mutual Ins. Co., Superior Court, judicial district of Hartford, Docket No. 703270 (October 29, 1992, Aurigemma, J.) ( 7 Conn. L. Rptr. 539).
See footnote 4.
"A court ordinarily looks to the language of a policy to determine whether loss of consortium is covered by that policy." Marotti v. St. Paul Guardian Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 00 0444878 (February 11, 2002, Zoarski, J.T.R.), citing Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 308-09, 524 A.2d 641 (1987) ("[w]e begin our analysis, as we must, with the applicable language of the insurance policy in effect at the time of the accident"). "Therefore . . . deciding whether [a plaintiff] may recover under a loss of consortium theory would require the court to examine the insurance policy in effect between the parties because, although . . . § 38a-336 sets forth minimum coverage requirements, it is the insurance policy itself that controls." Marotti v. St. Paul Guardian Ins. Co., supra, Superior Court, Docket No. 703270.
This court has held, "[a] spouse of a person injured in an accident may recover for loss of consortium under an uninsured motorist policy covering both spouses for any injuries `sustained by an insured.'" Tucci v. Allstate Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 0052480 (January 24, 1997, Flynn, J.); see also Catalina v. General Accident Ins., Superior Court, judicial district of Waterbury, Docket No. 109676 (May 16, 1994, Sullivan, J.) ( 11 Conn. L. Rptr. 502); Jensen v. Aetna Casualty Surety Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 00110728 (October 22, 1992, Nigro, J.) ( 7 Conn. L. Rptr. 486).
In Catalina v. General Accident Ins., the defendant argued that it was entitled to summary judgment on the plaintiff's husband's claim for loss of consortium because such a claim was not available under underinsured coverage. Catalina v. General Accident Ins., supra, 11 Conn. L. Rptr. 503. The policy defined an `insured' as: "1. You or any `family member'[;] 2. Any other person occupying your covered auto[;] and 3. Any person for damages that person is entitled to recover because of `bodily injury' to which this coverage applies sustained by a person described in 1 or 2 above." Id., 503-04. This court was not persuaded by the defendant's argument and denied its motion because the court found that the plaintiff's husband was an insured under the third definition, which allowed him to bring his loss of consortium claim. Id., 504.
In Jensen v. Aetna Casualty Surety Co., the plaintiffs, husband and wife, sued for damages under uninsured motorist coverage for the wife's physical injuries sustained in an automobile accident, and for the husband's emotional distress and loss of consortium. Jensen v. Aetna Casualty Surety Co., supra, 7 Conn. L. Rptr. 486. The policy defined "covered person" as "1. You or any family member. 2. Any other person occupying your covered auto. 3. Any person for damages that person is entitled to recover because of bodily injury: a. to which this coverage applies; and b. which is sustained by a person described in 1. or 2. above." Id. The court found that both plaintiffs qualified as a covered person and held "[b]ecause the statute does not clearly limit coverage under the mandated uninsured motorist requirements only to claims by the person injured and because the terms of the policy do not clearly exclude claims by a covered person for loss of consortium, the defendant's motion for summary judgment on the second count is denied." Id., 487. Despite CIRMA's attempt to mislead the court, this court holds that, based on the explicit language of the policy and existing case law, Michelle Reynolds is an insured under the policy and is therefore entitled to bring her loss of consortium claim.
Further, even if Michelle Reynolds was not an insured under the policy, binding Connecticut precedent requires this court to deny CIRMA's motion for summary judgment because the policy is ambiguous. See Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 538, 687 A.2d 1262 (1996). In Hansen v. Ohio Casualty Ins. Co., the sole issue on appeal was whether the estate of the decedent was entitled to underinsured motorist benefits, as a covered insured, pursuant to an insurance policy issued to a closely held corporation owned and operated by the decedent and his wife. Id. The "Who Is An Insured" section of the policy in Hansen was identical to the same section in the present matter, subsection 3, while other sections of the policy as described in the decision are similar to sections in the policy presently at issue. See id., 540-42. The named insured of the policy was the corporation. Id., 542. "The plaintiff essentially [argued] that the individual oriented and family oriented language throughout the uninsured motorist endorsement, and elsewhere in the policy, [rendered] the policy ambiguous and [created] uncertainty about who constitutes the `You' covered as an insured under the uninsured motorist endorsement. Therefore, the plaintiff [argued] that because the policy [was] ambiguous, it should be construed against the insurer and in favor of coverage for the plaintiff's decedent." Id.
The Supreme Court began its analysis by comparing the case to Ceci v. National Indemnity Co., 225 Conn. 165, 622 A.2d 545 (1993), in which the court stated, "[b]ecause corporations do not have families, uninsured motorist endorsements containing family member language should not be appended to business automobile liability insurance policies. If they are, then, in keeping with the consumer oriented spirit of the rules of insurance policy construction, the claimed ambiguity should be construed from the standpoint of the reasonable layperson in the position of the insured and not according to the interpretation of trained underwriters." (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 543 (quoting Ceci). The court then noted that in Hansen "the same approach is warranted for language oriented toward individuals." Id.
The court further explained that in Ceci and in the matter before it in Hansen, a rule dictating that ambiguities be resolved in favor of the insured, which is sometimes referred to as the contra-insurer rule, applied. Id., 544-45. Turning to the specific policy language, the court held, "we find several clauses to be ambiguous and, therefore, potentially misleading and confusing." Id., 546. One of the several clauses the court found potentially misleading and confusing was the "Who Is An Insured" section, specifically, the first two definitions which are identical to the first two definitions in the same section in the present case. See id., 545. The court said that the definitions were "inapposite to the situation in which a corporation is issued an uninsured motorist endorsement, but, rather, are consistent with one seeking coverage for shareholders of a family corporation. Although many insurers have revised both the format and the wording of insurance policies with a view to making them significantly more understandable to the consumer . . . leaving a layperson to sort out the ambiguities and misleading inconsistencies in the present policy is precisely the problem that the rules of insurance policy construction were designed to avoid . . . As a matter of law, we hold that the interplay between the provisions in the uninsured motorist endorsement created a situation too misleading to be anything other than ambiguous." (Citation omitted; internal quotation marks omitted.) Id., 546-47 (quoting Ceci in part).
The court in Hansen also quoted Ceci in reasoning that "[i]n some of the coverage disputes involving underinsured motorist insurance, claims have been sustained for individuals on the rationale that when an insurance company elects to use `family-oriented language' in insurance policies issued to partnerships and corporations, such coverage terms are reasonably susceptible of more than one interpretation and, therefore, they will be construed strictly against the insurer and liberally in favor of the insured . . . In effect, when a corporate or governmental entity is identified as the named insured in an insurance policy that uses coverage terms appropriate for coverage issued to individuals, courts chastise insurers for employing those forms rather than using coverage terms that are appropriate for insurance policies issued to various types of businesses or governmental entities." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 547. The court also found the policy's "[i]f you are an individual" language and the provision "You" to be superfluous. Id.
Finally, the Supreme Court concluded, "the individual oriented language, combined with the family oriented language, interspersed throughout the uninsured motorist endorsement provided to the corporation injected confusion and uncertainty into the coverage afforded by the policy. If an insurer uses language that is ambiguous, any uncertainty caused by that ambiguity will be resolved against the insurer . . . Put simply, the defendant should not have used an uninsured motorist endorsement containing language oriented toward individuals and family members when the named insured was a corporation. The plaintiff, individually and as executrix of the decedent's estate, is entitled to coverage under the uninsured motorist endorsement." (Citation omitted; emphasis in original.) Id., 548-49.
In a companion case, decided the same day as Hansen, the Supreme Court applied the reasoning of Hansen to governmental entities. Agosto v. Aetna Casualty Surety Co., 239 Conn. 549, 552, 687 A.2d 1267 (1996). In Agosto v. Aetna Casualty Surety Co., the estate of a decedent sought underinsured motorist benefits, as a covered insured, pursuant to an insurance policy issued to the decedent's employer, the state of Connecticut. Id., 550. The decedent was a state trooper who was killed while effecting a traffic stop on the highway. Id. The trial court found that the decedent was not an insured under the policy because he was not "occupying" his vehicle at the time of his fatal accident. Id., 551. On appeal, the plaintiff argued "that the policy was ambiguous because it contained language oriented toward both individuals and family members and, therefore, it should be construed in favor of coverage for the plaintiff's decedent." Id. The uninsured motorist endorsement in Agosto was "practically identical" to the one in Hansen. Id. The court held, "[o]n the basis of our reasoning in Hansen, the defendant in the present case should not have issued an uninsured motorist endorsement containing language referring to individuals and family members when the named insured was a governmental entity. The plaintiff's decedent is entitled to coverage under the uninsured motorist endorsement." Id., 552.
Agosto is controlling here. The policy language contained in the uninsured/underinsured coverage section of the policy here is nearly identical to the language in the policies in Agosto and Hansen. The language refers to both individuals and family members. Like Agosto, the named insured on the policy is a governmental entity, the town of Suffield. Therefore, even if Michelle Reynolds were not an insured under the policy, because the policy language refers to individuals and family members when the named insured is a governmental entity, the policy language is ambiguous and would have to be construed in favor of coverage for Michelle Reynolds and her loss of consortium claim.
CONCLUSION
For the reasons set forth in this memorandum of decision, the defendant's motion for summary judgment is hereby denied.