Opinion
No. CV 04-041 27 53 S
May 4, 2006
MEMORANDUM OF DECISION
FACTS
The Plaintiff, Eric Rothstein, brings this action seeking to recover underinsured motorist benefits pursuant to a policy of insurance issued by the Travelers Indemnity Company to his employer, I.R. Industries, Inc.
On June 2, 2001, Eric Rothstein was a passenger in a motor vehicle operated by his friend James Mozingo, when a collision occurred with a vehicle being operated by one Margaret Roberts.
The Roberts vehicle was covered by an insurance policy issued by the Allstate Insurance Company, which carried liability limits of $50,000.
After Allstate paid the Plaintiff the limits of its policy applicable at the time of the accident, Eric Rothstein made a claim for underinsured motorist benefits under a policy issued by the Windsor Insurance Company.
That policy, which covered the vehicle being operated by James Mozingo, had underinsured motorist limits of $100,000. The Plaintiff recovered $50,000 from Windsor Insurance, representing the full limits of $100,000, including a credit for the $50,000, previously paid by Allstate.
Having exhausted the limits of insurance coverage available to the two vehicles involved in the June 2, 2001 accident, Eric Rothstein commenced this action, returnable June 29, 2004.
On June 2, 2001, Eric Rothstein was employed by I.R. Industries, Inc., as a sales manager. The corporation provided him with a 2000 Toyota Landcruiser for use in the course of his employment.
In addition to being an employee of the corporation, Eric Rothstein was a stockholder in the closely held corporation.
Although the Plaintiff admitted, in response to requests for admission filed by the Defendant, that he was not a shareholder of the corporation, he subsequently filed an affidavit stating that he was a shareholder of the corporation, of which Irwin Rothstein is President and majority stockholder. While requests for admission are judicial admissions, they are not irrevokable. The judicial authority may permit withdrawal or amendment to a request for admission. Practice Book § 13-24; East Haven Building Supply. v. Fanton, 80 Conn.App. 734, 744 (2004).
At the time of the accident, the Plaintiff was not acting within the scope of his employment, and was not occupying a vehicle listed as a "covered auto" on the policy issued by the Travelers Indemnity Company.
He was engaged in personal business, relative to an upcoming wedding.
The Defendant moves for summary judgment, claiming that coverage pursuant to the underinsured motorist provisions of its policy is not extended to Eric Rothstein, while a passenger in a vehicle not owned by the named insured, at a time he was engaged in purely personal pursuits.
Travelers argues that the corporate employer, not the Plaintiff, is the "named insured" under its policy, and points to language in the liability portion of that policy which limits coverage to the use of a "covered auto."
The Defendant further contends that coverage is not available to the Plaintiff under the provisions of its policy, because coverage is restricted to "covered" or "owned" vehicles, and that it is permitted to limit coverage to those vehicles owned by the named insured. Gomes v. Massachusetts Bay Insurance Co., 87 Conn.App. 416, 428-29 (2005).
The Plaintiff claims that the applicable provisions of the Travelers' insurance policy are those relating to uninsured and underinsured motorist coverage. That language defines an "Insured" to mean:
B. WHO IS AN INSURED
1. You
2. If you are an individual, any "family member"
3. Anyone else "occupying" a covered auto or a temporary substitute for a covered auto. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction.
The Plaintiff maintains that coverage is available to him, consistent with the holding in Hansen v. Ohio Casualty Company, 239 Conn. 537, 546 (1996), in which the Supreme Court determined that coverage existed in the context of a closely held corporation, based upon language which is identical to that contained in the Travelers Indemnity Company's policy issued to I.R. Rothstein, Inc.
STANDARD OF REVIEW — SUMMARY JUDGMENT
A motion for summary judgment may be granted only when affidavits and other documentary evidence demonstrate that no genuine issue of material fact exists or remains between the parties, and the moving party is entitled to a judgment as a matter of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983); Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990).
The burden is upon the party bringing the summary judgment motion to show quite clearly what the law is, and that all real doubt as to the existence of a material fact has been excluded. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984); Yanow v. Teal Industries, Inc. 178 Conn. 262, 268 (1979). In ruling upon a motion for summary judgment, the court's function is not to adjudicate issues of fact, but instead to determine whether any issues of material facts exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1988).
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith, if the pleadings, affidavits and other proof show that there is no genuine issue as to any material fact. The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969).
QUESTIONS OF FACT EXIST CONCERNING COVERAGE, BASED UPON THE FACTS PRESENTED BY WAY OF SUMMARY JUDGMENT
The Travelers Indemnity Company focuses upon the liability portion of its policy, while eschewing any mention of the language contained in the uninsured motorist portion of the policy, or the Connecticut Supreme Court's decision in Hansen.
These uninsured motorist provisions, as construed by the court in Hansen, are fatal to the summary judgment motion.
In Hansen, the court was asked to determine, based upon the policy issued to a corporation, whether the decedent, Richard Hansen, was to be extended uninsured motorist coverage.
The policy was issued to a closely held corporation, owned by the decedent and his wife. Richard Hansen was killed when the snowmobile in which he was riding collided with an uninsured vehicle.
The court discussed the specific facts of the case, with particular reference to the corporate organization of the named insured, West Wharf Garage, Inc. The decedent was the only employee, while the surviving spouse served as corporate secretary and treasurer.
In finding the uninsured motorist provision "ambiguous," the court determined that the decedent was covered by the provisions of the policy, while riding in a non-owned vehicle. The policy language is identical to that contained in the Travelers policy. Hansen v. Ohio Casualty Company, supra, 545-46.
In the Hansen opinion, the court stated that its decision was a sequel to the holding in Ceci v. Nationwide Indemnity Co., 225 Conn. 165 (1993).
In Ceci, the plaintiff was a pedestrian, injured when struck by an uninsured vehicle. He sought recovery under the uninsured motorist provisions of a policy issued to Victor Ceci Refuse, Inc.
In construing language similar to the provisions in Hansen, the court determined that the pedestrian was covered pursuant to the policy issued to the corporation.
The court elected to construe the policy provisions concerning the unique facts of the case, to afford coverage. The size of the small, family-run business was considered, along with information known to the underwriter of the policy, and the situation of the parties to the contract. Ceci v. Nationwide Indemnity Co., supra, 168-69. On the facts presented here, it cannot be said, as a matter of law, that there is no coverage afforded to the Plaintiff, Eric Rothstein, by the policy of insurance issued to the closely held corporation.
Hansen and Ceci both involved fact-oriented analysis, and neither supplies any guidance concerning how large or extensive a corporate entity must be, before shareholders and employees are ineligible to receive the benefit or uninsured motorist coverage.
Any such determination must be made on a case-by-case basis, and represents a mixed question of law and fact.
COVERAGE UNDER THE POLICY IS NOT LIMITED TO SITUATIONS WHERE A PLAINTIFF IS OCCUPYING A COVERED VEHICLE
The Defendant claims that the language of its policy, coupled with applicable case law, restricts the scope of its policy to those occupying a covered vehicle.
This argument is not persuasive.
The Defendant cites Gomes v. Massachusetts Bay Insurance Co., supra, for the proposition that coverage under a policy may be limited to the occupancy of owned automobiles. Gomes is readily distinguishable.
In Gomes, the Plaintiff was a volunteer fire-policeman, who was struck by an uninsured motor vehicle, while directing traffic. The court held that the claim was barred, based upon the language of the policy, when read in conjunction with the workers' compensation exclusivity provisions, § 31-284(a) of the General Statutes, and the provisions of § 38a-336(f) of the General Statutes.
Section 31-284(a), C.G.S. — "All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation."
Section 38a-336(f), C.G.S. — "Notwithstanding subsection (a) of § 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment, shall be covered by the insured's otherwise applicable uninsured and underinsured motorist coverage."
The court held that the text of § 38a-336(f) of the General Statutes must be construed as an exception to the general rule, as announced in § 31-284(a) of the General Statutes, that resort to workers' compensation represents the exclusive avenue of recovery for personal injuries by one injured out of and in the course of his employment. Gomes v. Massachusetts Bay Insurance Co., supra, 425.
Because § 38a-336(f), by its express terms, applies to one injured while "occupying a covered motor vehicle," coverage was not available to the plaintiff who was not occupying the covered vehicle when struck by the uninsured motorist.
Although it was not raised as an issue before the court, the Supreme Court has found, in a case involving a state police trooper injured while outside his vehicle, a right to recover uninsured motorist benefits, under circumstances where he would also be eligible for workers compensation benefits. Agosto v. Aetna Casualty Surety Co., 239 Conn. 549, 550-51 (1996).
Here, Eric Rothstein was not occupying a covered vehicle, and was not in the course of his employment, at the time of the June 2, 2001 accident. This case is, therefore, governed by Hansen, rather than Gomes.
The Defendant, Travelers Indemnity Company's motion for summary judgment, is DENIED.