Opinion
No. 565773
February 9, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #128
ISSUE
Whether the court should grant the defendant's motion for summary judgment on count three of the plaintiff's five-count amended complaint. This court finds that there exist genuine issues of material fact in two areas 1) because there is an ambiguity in the wording of the informed consent form and 2) because the best evidence as to the amount of the uninsured/underinsured motorist coverage in the coverage sheet of the policy was not provided with the evidence presented by the defendant. Therefore, because disputed issues of fact remain and the defendant is not entitled to judgment as a matter of law, this court hereby denies the defendant's motion for summary judgment.
FACTS
This action arises out of injuries that the plaintiff, Thomas Rossi, sustained as a result of a two-car motor vehicle accident on April 24, 2002, in East Lyme, Connecticut. On January 6, 2004, the plaintiff, Thomas Rossi, filed a five-count complaint against three defendants due to injuries he received in the automobile accident: the defendant Melissa Brodaski, and the two insurance companies National Union Fire Insurance Company ("National") and Kemper Auto and Home Insurance Company ("Kemper"). On the date of the collision, the plaintiff was employed by SBC Communications, Inc. ("SBC") a.k.a. Southern New England Telephone ("SNET") and the SBC vehicle he was driving was insured by National. The plaintiff has since settled against the alleged underinsured motorist, Melissa Brodaski, for her policy limits. In count three, the plaintiff seeks uninsured/underinsured motorist ("UM/UIM") benefits against National pursuant to the insurance coverage afforded by way of its insurance policy purchased by SBC. Additionally, in count five, the plaintiff seeks UM/UIM benefits from Kemper under its policy covering the plaintiff's personal automobile.
On April 15, 2004 the defendant National filed a motion for summary judgment, accompanied by a memorandum of law in support, with respect to the plaintiff's amended complaint and the defendant's special defense. The defendant moves for summary judgment on the grounds that (1) it provided the insured with a policy affording the Connecticut statutory minimum for UM/UIM motorist coverage, whereby, the tortfeasor's vehicle was not an underinsured vehicle within the meaning of § 38a-336; and (2) the defendant was not required to strictly comply with the informed consent provisions of § 38a-336(a)(2) as this section is not applicable to insurance policies issued to cover a fleet of commercial vehicles. On these grounds the defendant argues that there exist no genuine issues of material fact as to the plaintiff's claim, and/or the defendant's special defense, of underinsured motorist benefits and that the defendant is entitled to judgment as a matter of law.
[Editor's Note: Footnote 1, which recites the language of General Statutes § 38a-336 and § 14-112, has not been included in the reported opinion.]
On August 10, 2004, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment. On October 18, 2004, the plaintiff filed a supplemental brief in opposition to the defendant's motion for summary judgment. Subsequently, on October 28, 2004, the defendant filed a supplemental brief in reply to plaintiff's supplemental brief in opposition to the defendant's 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." (Internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
The defendant argues in its memorandum in support of its motion for summary judgment that it acted in accordance with § 38a-336 by (1) complying with statutory requirements and obtaining written informed consent from the named insured to effectively reduce uninsured motorist benefits and by (2) providing UM/UIM motorist coverage to SBC's commercial fleet in an amount equal to the minimum allowed by statute ($20,000/$40,000). The defendant further argues that the defendant Melissa Brodaski's vehicle was not an underinsured vehicle within the meaning of § 38a-336 as her insurance policy provided liability coverage for $25,000, an amount greater than the underinsured motorist coverage provided by National. The defendant submitted a copy of the executed informed consent form titled the "Election of Limit of Liability For Uninsured and Underinsured Motorists Coverage" (hereafter "consent form"). (Memorandum of law in support of defendant's motion for summary judgment, Exhibit G). Moreover, the defendant contends that it is not required to strictly comply with the provisions of § 38a-336 because the requirement of informed consent has little applicability in the context of a commercial fleet policy that covers a large number of motor vehicles. The defendant argues that it is clear by looking at the consent form and the affidavits of Julie K. Long, Executive Director-Risk Management for SBC Communications, Inc., and Michelle Spingler, underwriter for National handling SBC's commercial fleet policy, that the insured's (SBC's) intent was to limit UM/UIM coverage to the statutory minimum. (Memorandum of law in support of defendant's motion for summary judgment, Exhibits E-G.)
In the plaintiff's memorandum in opposition to the defendant's motion for summary judgment the plaintiff argues that the waiver by which the lower UM/UIM coverage was elected was invalid as such waiver failed to obtain informed consent from each of the drivers of its fleet of vehicles, including the plaintiff. The plaintiff argues that § 38a-336(a)(2) provides, in relevant part, that: "[E]ach automobile liability insurance policy issued . . . shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112." (Emphasis added.) General Statutes § 38a-336(a)(2). The plaintiff further argues in his supplemental brief in opposition to the defendant's motion for summary judgment that § 38a-336(a)(2) mandates that UM/UIM coverage cannot be lower than the liability policy limits unless there is a "request in writing" from any "named insured" for said limits to be lower. Therefore, the plaintiff asserts that without such informed consent from those covered by the insurance policy, i.e. the plaintiff as a "named insured," the statute clearly requires that automobile insurance policies "shall" contain UM/UIM coverage in the amount "equal" to the liability limits of the policy.
[Editor's Note: Footnote 2, which recites the language of General Statutes § 38a-336(a)(2), has not been included in the reported opinion.]
The defendant's reply brief argues that the language in the statute is clear and unambiguous and that in order to elect UM/UIM coverage in an amount less than one's general liability coverage (but in no case less than the statutory minimum), "any named insured," must execute an appropriate consent form. The defendant further argues, SBC, as a named insured, executed the requisite consent form. The defendant contends that although the plaintiff may have been covered under said policy and may well be "an insured" as the term is defined in the policy, the plaintiff was not a "named insured," and nothing in the policy confers that status upon the plaintiff (or any other similarly situated driver). The defendant further asserts that the business auto declarations page of SBC's commercial auto policy (attached as Exhibit F to defendant's memorandum of law in support of its motion for summary judgment) and the Policy Endorsement provision (attached as Exhibit 1 to the defendant's supplemental brief in reply to plaintiff's supplemental brief in opposition to the defendant's motion for summary judgment) clearly indicate that "SBC Communications" is the "named insured" under the policy.
The defendant cites to several cases in its brief and supplemental brief in support of its argument that, in the context of commercial fleet insurance, a valid election to reduce UM/UIM coverage to the statutory minimum does not require the signature of "all" named insureds. The defendant argues that in Frantz v. United States Leasing, Inc., 245 Conn. 727, 741, 714 A.2d 1222 (1998), the court noted, that in the commercial setting, the expectations are "significantly different" than those of personal auto insurance. Thus, a request for lower limits is effective if signed by any named insured under the policy. Id., 741-42. Thus, questions have arisen whether the required information for an effective request for lower limits applies to corporate entities.
The defendant further argues that in Simpson v. National Union Fire Insurance Co., Superior Court, judicial district of Hartford, Docket No. CV 98 0578278 (September 8, 2000, Peck, J.) ( 28 Conn. L. Rptr. 64, 67), the court also held that these requirements did not apply to a fleet policy. The court concluded that large "corporations" hire individuals that specialize in legal and insurance matters. Id. The court further concluded, that it was "highly likely" that these individuals were fully aware of the relative costs of the coverages and the implications of selecting the statutory minimum coverage. Id. The court noted that the Connecticut courts have treated the expectations of fleet insurance differently than personal auto policies. See Frantz v. United States Leasing, Inc., supra, 245 Conn. 741-42. The Simpson court adopted the Franz language noting that the concern of informed consent had little applicability in the context of a commercial fleet policy that covered a large number of motor vehicles. See also McDonald v. National Union Fire Insurance Co. of Pittsburgh, 79 Conn.App. 800, 808, 831 A.2d 310, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003). In McDonald, the court focused on the fact that the named insured corporation provided a "clear intention" to select the minimum UM limits. Id., 805. The McDonald court never considered the specific language of the statute or the degree of sophistication of the corporate entity, per se. McDonald, supra, 79 Conn.App. 807. Rather, the court presumed that the intention of the statute — informed and conscious decision as to coverage — does not apply to commercial enterprises. Id. The court concluded that such entities do not fall "within the class of consumers that the legislature sought to protect when it mandated the disclosure of the premium costs" under the statute. Id. The court presumed that personnel who select this lower coverage are fully aware of its relative cost and the implications of their decision. Id.
Under Connecticut law, an insurer must provide UM/UIM motorist limits equal to the limits of liability coverage unless the insured requests a lesser amount in writing. General Statutes § 38a-336(a)(2). In the commercial setting, a written election of lower limits will be effective as long as it is signed by any "named insured." Frantz v. United States Leasing, Inc., supra, 245 Conn. 741. The defendant argues that the language of § 38a-336(a)(2) is clear and unambiguous and that the defendant followed the statutory requirements by effectively reducing SBC's UM/UIM coverage to the statutory minimum only once it had received the statutorily prescribed written informed consent. Moreover, the defendant argues that the concern of informed consent has little applicability in the context of commercial fleet insurance. Even if this constitutes a commercial setting and the defendant is not obligated to strictly comply with the statutory requirements of § 38a-336(a)(2), this court finds that, in reviewing the language of the consent form, there exist fundamental ambiguities in the coverage afforded by the form.
See footnote 1.
The ambiguity arises from the use of the terms "family" and "individual" ("you/your") in the UM/UIM consent form in a business auto context. The consent form provides, in relevant part, that: "Connecticut law, as amended in the Connecticut Insurance Code (Section 38a-336(a)(1)), requires you to buy Uninsured Motorist Coverage (UM/UIM). Generally, this coverage only applies where the person who causes an accident is not an insured under your policy. Anyone injured in an accident may seek to recover damages from the person causing the loss. These losses include your medical bills, loss wages (past and future), as well as payment for your disabilities . . . UM/UIM coverage protects you, your family, and others in your car for injuries caused by someone who did not buy insurance. You have the right to choose the amount of coverage. It can be as low as $20,000 per person and $40,000 per accident, or as high as twice your policy's bodily injury liability coverage. The amount of liability coverage you buy will govern the maximum amount of UM/UIM coverage you can buy." (Emphasis added.) "Who is an insured" under the consent form is also ambiguous. The ambiguity arises from the confusing language in the signature section of the form. The disclaimer directly preceding the signature line provides: "WHEN YOU SIGN THIS FORM AND MAKE A WRITTEN REQUEST FOR A LESSER LIMIT OF LIABILITY, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THE DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISOR." (Emphasis added.) The signature line, authorizing the execution of the document, directs the "insured" party to sign above the caption "Signature of the insured." (Emphasis added.) However, the insured party cannot be ascertained by relying upon the confusing language within the disclaimer, or for that matter, within the body of the form. Moreover, the ambiguity in the consent form is compounded by the placement of the obscure language of the caption besides the equally uncertain language of the disclaimer.
Our Supreme Court has reviewed policy language similar to that in the consent form and has held this language to be ambiguous. In Hansen v. Ohio Casualty Co., 239 Conn. 537, 544-45, 687 A.2d 1262 (1996), the court extended coverage under a business auto policy to a stockholder and employee while occupying a vehicle not owned by the corporation due to ambiguity in the language of the policy. See also Agosto v. Aetna Casualty Surety Co., 239 Conn. 549, 687 A.2d 1267 (1996). In both Hansen and its companion case Agosto, the business auto policies examined by the court contained definitions as to who was an insured under the policy that read:
1. You.
2. If you are individual, any family member.
Hansen v. Ohio Casualty Co., supra, 239 Conn. 541. Analyzing this language of "who is an insured" under the policy, the court held that the first designation of "you" in a corporate policy is "nonsensical because a corporation cannot be compensated for `bodily injury,' which is the subject matter of the coverage." Id., 546. Additionally, in reviewing the language of the policy, the court found that the endorsement providing UM/UIM motorist benefits to a corporation reflected "individual" and "family-oriented" language within the policy. Id., 548. Such a juxtaposition of language "injected confusion and uncertainty into the coverage afforded by the policy." Id.
The ambiguity in the consent form is the same ambiguity the Supreme Court referenced in Agosto and Hansen regarding coverage provided individuals, insured and the family. Moreover, the court also finds that the policy page stating what the plaintiff's UM/UIM coverage has not been included by the defendant. In Exhibit F of the defendant's memorandum of law in support of its motion for summary judgment, the face sheet of the policy entitled "COMMERCIAL AUTO COVERAGE PART-BUSINESS AUTO DECLARATIONS" provides that the maximum uninsured/underinsured motorists coverage limit that the defendant will pay for any one accident or loss is "SEPARATELY STATED ON EACH UM/UIM FORM." However, the policy page referencing individual coverage is not included in the defendant's evidence as per the provisions of the face sheet of the policy. The defendant relies on the wording of the policy to indicate its compliance with UM/UIM statutory coverage minimums, however, the defendant has failed to provide the policy itself. Accordingly, it is not unreasonable for the court to assume that the policy would read in a manner similar to the consent form regarding the coverage provided to individuals, insured and the family. In conclusion, the absence of the policy itself and the paid listing of $20,000/$40,000 UM/UIM coverage for each driver is a further reason to find that there is a genuine issue of material fact as to the coverage.
Therefore, this court finds it cannot overlook the ambiguous language in the consent form which incorporates "individual" and "family-oriented" language. Furthermore, the best evidence of the plaintiff's coverage has not been provided. As such, genuine issues of material fact exist and the defendant's motion for summary judgment is hereby denied.
D. Michael Hurley, JTR