Opinion
No. NNI CV05-4002807
April 17, 2007
MEMORANDUM OF DECISION RE DEFENDANT DAIRYLAND INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT (#120)
This memorandum of decision addresses the issues raised in the Motion for Summary Judgment in Favor of Defendant Dairyland Insurance Company (Dairyland) (#120) filed on July 5, 2006, and in the defendant's Memorandum of Law in Support of Motion for Summary Judgment (#121). This memorandum of decision also addresses the issues raised by the plaintiff through his Objection to [Dairyland's] Motion for Summary Judgment (#128) filed on August 18, 2006, and in his accompanying Memorandum of Law in Support of Objection to Motion for Summary Judgment. In addition, this memorandum of decision addresses the issues raised in the Memorandum of Law in Support of Transportation General, Inc.'s Objection to [Dairyland's] Motion for Summary Judgment, filed by the defendant Transportation General, Inc. (Transportation General) on July 17, 2006 (#126). The underlying single-count complaint reflects facts related to the plaintiff's involvement in a motor vehicle accident, and brings forward the plaintiff's action to recover uninsured motorist benefits from the defendant, whom alleges to have been contractually obligated to provide him with such benefits. Through an amended complaint, the plaintiff has brought a second count against Transportation General, Inc. (Transportation General) (#112), alleging that this defendant, as well, is responsible for providing him with uninsured motorist benefits.
Dairyland's motion for summary judgment asserts that "there is no genuine issue of material fact and Dairyland Insurance is entitled to judgment as a matter of law because the $20,000 per person uninsured motorist limits of the vehicle in which the plaintiff was an occupant at the time of the accident are primary to Dairyland's $20,000 per person exposure, and, in the absence of stacking pursuant to General Statutes § 38a-335(d), Dairyland Insurance has no exposure to the plaintiff." (#120.) Through his objection, the plaintiff asserts that Dairyland's motion for summary judgment is premature, as it is dependent upon the court's determination as to whether he is entitled to uninsured motorist benefits from Transportation General. The plaintiff further objects that genuine issues of material fact exist concerning his claim against Dairyland, so that summary judgment should not lie. (#128.)
For the following reasons, the court finds these issues in favor of the defendant Dairyland, and grants its motion for summary judgment (#120); overrules the plaintiff's objection to this motion for summary judgment (#128); and overrules Transportation General's objection to this motion for summary judgment (#126), as well.
I. PROCEDURAL HISTORY
The court's conclusion is based upon the applicable law and upon its reconstruction of the rather labyrinthine state of the pleadings submitted thus far. A review of the relevant contents of the court file will help to place the court's ruling in context.
On April 19, 2005, the plaintiff, John Ryant, first filed a one-count complaint against Dairyland alleging that certain events had occurred on or about December 20, 2003. In part, the original complaint alleged: that the plaintiff was the operator and permissive user of a 1998 Ford automobile owned by Transportation General; that the rear of the vehicle operated by the plaintiff was struck on that date by a vehicle negligently operated by Luis Manosalvas, not a party to this litigation; that the vehicle operated by Luis Manosalvas was owned by Arnulfo Manosalvas, not a party to the litigation; that the plaintiff suffered personal injuries and losses as the result of Luis Manosalvas' negligent operation of the vehicle owned by Arnulfo Manosalvas; that neither Luis Manosalvas nor Arnulfo Manosalvas maintained any automobile insurance coverage at the time of the incident, so that Luis Manosalvas was an uninsured operator at the time his negligence caused the plaintiff's injuries; that Transportation General was self-insured for liability purposes, and had denied availability of uninsured or underinsured motorist benefits to the plaintiff; that the plaintiff then maintained in full force and effect a contract for automobile insurance with Dairyland, which policy included uninsured and underinsured motorist benefits; and that "Pursuant to Connecticut General Statutes § 38a-336 and the terms of said policy issued by Dairyland . . . to the plaintiff . . . the plaintiff is entitled to recover uninsured motorist benefits." (Complaint, April 19, 2005.)
On June 24, 2005, Dairyland filed an answer and asserted four special defenses in response to the original complaint (#102). The first special defense asserts that pursuant to General Statutes § 38a-336(a)(2) and (d), the owner of the vehicle, Transportation General, was obligated to maintain minimum limits of uninsured motorist coverage for the vehicle operated by the plaintiff, so that Dairyland's policy and coverage is secondary to Transportation General's policy and coverage. The second special defense asserts that as it was equal to or exceeded the coverage carried by Dairyland, Transportation General's maintenance of $20,000 worth of uninsured self-coverage provided the total extent of coverage contemplated by § 38a-336(d). The third special defense alleged that any recovery under the Dairyland policy is limited to $20,000 per person. The fourth special defense alleged that Dairyland's liability, if any, must be reduced by any collateral source payments or set-offs to other sources. The plaintiff denied these special defenses on June 27, 2005 (#105).
Section 38a-336(a)(2) provides, in pertinent part: "[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 [$20,000]." Section 38a-336(d) provides, in pertinent part: "Regardless of the number of policies issued, vehicles or premiums shown on a policy, premiums paid, persons covered, vehicles involved in an accident, or claims made, in no event shall the limit of liability for uninsured and underinsured motorist coverage applicable to two or more motor vehicles covered under the same or separate policies be added together to determine the limit of liability for such coverage available to an injured person or persons for any one accident. If a person insured for uninsured and underinsured motorist coverage is an occupant of a nonowned vehicle covered by a policy also providing uninsured and underinsured motorist coverage, the coverage of the occupied vehicle shall be primary and any coverage for which such person is a named insured shall be secondary. All other applicable policies shall be excess. The total amount of uninsured and underinsured motorist coverage recoverable is limited to the highest amount recoverable under the primary policy, the secondary policy or any one of the excess policies." (Emphasis added.)
On March 10, 2006, the plaintiff filed a motion for permission to cite in Transportation General as an additional defendant (#109); that motion was granted (Shluger, J.) on March 27, 2006. On April 13, 2006, the plaintiff filed an amended complaint (#112) effectively repeating the allegations against Dairyland but also asserting new claims against Transportation General in Count II. There, the plaintiff alleges, among other things, that at the time of the accident on December 20, 2003: Transportation General operated a public transportation service, doing business as Metro Taxi; the plaintiff was operating a vehicle owned by Transportation General as a permissive user; this vehicle "was covered by Transportation General, Inc. as a self-insurer for liability, uninsured and underinsured motorists benefits"; and "[p]ursuant to General Statutes §§ 14-29 [requiring insurance coverage for taxicabs and motor vehicles in livery service], 38a-334 [enabling insurance commissioner to adopt regulations establishing minimum amounts of liability insurance for motor vehicles], 38a-336, and 38a-363 [defining terms used in motor vehicle insurance legislation, including "owner" of a vehicle, § 38a-363(d)], Transportation General, Inc. is responsible to provide uninsured motorist benefits to the plaintiff . . . and the plaintiff is entitled to recover from said benefits." (#112.)
For procedural purposes alone, unrelated to the merits of the pending motion for summary judgment, the court notes that in this posture, the mailer involving all three parties was submitted to arbitration; the arbitrator's decision was filed on June 22, 2006, holding Transportation General liable in the amount of $16,022.45, based on the apparent finding that Transportation General was the primary insurance carrier under the circumstances presented (#117). On September 1, 2006, the court (Taylor, J.) ordered the arbitrator's decision to be opened, and the pleadings were restored to the docket (#131).
On July 3, 2006, Transportation General filed an answer to the amended complaint and also raised three special defenses: first, that the plaintiff is not entitled to pursue an uninsured/underinsured motorist claim against Transportation General due to the terms of their lease agreement; second, that Transportation General had no obligation to provide uninsured/underinsured motorist benefits to the plaintiff; and third, that if the plaintiff receives any damage award, "these damages should be offset by the amount of damage sustained to the vehicle owned by Transportation General, Inc., pursuant to the terms of the lease agreement between the parties." (#119.) The plaintiff denied Transportation General's special defenses on July 7, 2006 (#122).
On July 5, 2006, Dairyland filed the pending motion for summary judgment (#120) with an accompanying memorandum of law (#121). In support of its motion, Dairyland submitted five exhibits, as generally contemplated by Practice Book § 17-45. Exhibit A is an uncertified copy of a document purporting to be an agreement allowing the plaintiff to lease a taxicab from Transportation General, and to operate the vehicle owned by that defendant "as an independent contractor/business." Exhibit B is an uncertified copy of a July 16, 2004 letter from Transportation General to counsel for the plaintiff, ostensibly establishing that Metro Taxi is a "self-insured entity." Exhibit C is a certified copy of the motor vehicle insurance policy issued by Dairyland to the plaintiff, reflecting coverage for a 1989 Oldsmobile: Exhibit D is a copy of the memorandum of decision in Arnone v. Transportation General, Inc., Superior Court, judicial district of New Haven, Docket No. CV 03 0479852 (November 30, 2005, Robaina, J.) (denying Transportation General's motion for summary judgment upon finding that the plaintiff-lessor was not the "owner" of the motor vehicle at issue). Exhibit E is a copy of the memorandum of decision in Gambrell v. Phadesus, Superior Court, judicial district of New Haven, Docket No. CV 04 0488561 (January 9, 2006, Silbert, J.) (denying motion for summary judgment brought by Transportation General d/b/a Metro Taxi in part because that defendant as lessor, not plaintiff as lessee, must maintain valid uninsured motorist coverage). (#121.)
Practice Book § 17-45 enumerates the types of materials appropriately used to support summary judgment matters: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings." (Emphasis added.) No party to the present litigation has raised the issue of certification of the lease or the letter submitted by Dairyland in support of its motion for summary judgment. The Supreme Court has "previously . . . 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). As all of the parties have appropriately relied on these documents in presenting their positions regarding the summary judgment issues, the court shall utilize its discretion and follow suit. Both the documents reflected by Exhibit A to defendant Dairyland's memorandum in support of its own motion for summary judgment (#121), and its equivalent, Exhibit C to the plaintiff's submission in opposition to Transportation General's separately pending motion for summary judgment (#129) are each referred to as "the lease."
On July 17, 2006, Transportation General objected to Dairyland's motion for summary judgment (#120) by filing its Memorandum of Law in Support of Transportation General, Inc.'s Objection to Motion for Summary Judgment (#126). As grounds for its objection, Transportation General stated, in part: "Dairyland has moved for summary judgment and claims that it is not liable for uninsured motorist benefits because [Transportation General] is required to provide uninsured motorist coverage to the plaintiff and that such coverage takes priority over the coverage provided under its own policy with the plaintiff. In response to these allegations, [Transportation General] respectfully submits that Dairyland's Motion should be denied because [Transportation General] did not have an obligation to provide uninsured motorist coverage to the plaintiff/lessee, and even if there was such an obligation, it was satisfied because the lease required the plaintiff/lessee to obtain coverage and the plaintiff/lessee did obtain such coverage from Dairyland." (Emphasis added.) (#126).
Transportation General's memorandum states that "a copy of the agreement [between itself and the plaintiff] is attached as hereto as Exhibit 1.)" (#126, p. 5.) No such exhibit is attached to the document filed with the court. However, an analysis of the references to the lease agreement set forth in Transportation General's memorandum leads the court to conclude that the intended exhibit has already been submitted as Exhibit A to Dairyland's Memorandum of Law in Support of Motion for Summary Judgment (#121). See also footnote 3.
On August 18, 2006, the plaintiff responded to Transportation General's objection to Dairyland's motion for summary judgment by filing his Objection to Motion for Summary Judgment (#129). The plaintiff's accompanying Memorandum of Law in Support of Objection to Motion for Summary Judgment presented three exhibits as contemplated by Practice Book § 17-45: Exhibit A is a copy of the memorandum of decision in Przybyloski v. Catholic Mutual Group, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 065436 (January 23, 2002, Alander, J.) [31 Conn. L. Rptr. 235] (ruling that defendant insurer was contractually obliged to provide uninsured motorist benefits only to lessor-owner of a motor vehicle, and had no statutory obligation to provide such coverage to plaintiff-lessee, pursuant to Platcow v. Yadsuda Fire Marine Ins. Co., 59 Conn.App. 47, 55, 755 A.2d 356 (2000); Exhibit B is a copy of the memorandum of decision in Gambrell v. Phasesus, Superior Court, judicial district of New Haven, Docket No. CV 04 0488561, supra; and Exhibit C is an uncertified copy of the lease agreement between the plaintiff and Transportation General, identical to that previously submitted to the court.
See Footnote 3.
Also on August 18, 2006, the plaintiff responded to Dairyland's motion for summary judgment (#120) by filing another document again entitled Objection to Motion for Summary Judgment, with an attached submission again entitled Memorandum of Law in Support of Objection to Motion for Summary Judgment (#128). Therein, the plaintiff effectively acknowledges "that there are no genuine issues of material fact as the primary provider of uninsured motorist benefits is the defendant, Transportation General, Inc. in the amount of $20,000.00 and the policy with the defendant Dairyland Insurance Company only provides for $20,000.00 in benefits." Id. However, the plaintiff contends that until the court "rules on whether the defendant, Transportation General, Inc. is statutorily obligated to provide uninsured motorist benefits to the plaintiff, there are genuine issues of material fact that exist with the plaintiff's claim for uninsured motorist benefits against the defendant, Dairyland Insurance Company." Id.
Transportation General did not file its own motion for summary judgment until August 24, 2006 (#130); it submitted its brief by expressly incorporating by reference its Memorandum of Law in support of Transportation General's objection to (Dairyland's) Motion for Summary Judgment (#126). The plaintiff's Objection (#128) effectively presents the court both with his argument in opposition to Transportation General's opposition to Dairyland's motion for summary judgment (#120), and his argument in opposition to Transportation General's own motion for summary judgment (#130).
II. THE PARTIES' ARGUMENTS AS TO SUMMARY JUDGMENT
The legal predicates for granting summary judgment are well-acknowledged. "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. 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.) Smith v. Greenwich, 278 Conn. 428, 463-64, 899 A.2d 563 (2006). In performing this task, "a trial court . . . draws inferences in favor of the nonmoving party and determines whether the . . . moving party was entitled to a judgment as a matter of law." (Internal quotation marks omitted; internal and external citations omitted.) State v. Burnaka, 61 Conn.App. 45, 52, 762 A.2d 485 (2000). "[I]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006). "A material fact has been defined . . . as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003); also Socha v. Bordeau, supra, 277 Conn. 585-86.
Through its pending motion (#120), Dairyland argues that it is entitled to summary judgment because there is no genuine issue as to whether it had a duty to provide the plaintiff with uninsured motorist coverage. Dairyland claims that despite the allegations of the complaint, it is entitled to judgment as a matter of law on the grounds that the pleadings taken as a whole, with the submitted affidavits and related Superior Court decisions, establish that it had no duty to provide the plaintiff with uninsured motorist coverage. Dairyland asserts that, to the contrary, Transportation General, alone, was required to provide such coverage so that Transportation General's coverage takes priority over Dairyland's policy. According to Dairyland, because Transportation General is the primary insurance provider; because both Dairyland's and Transportation General's coverage was limited to $20,000 for the occurrence at issue; and because § 38a-335(c) prohibits the "stacking" of insurance policies, Dairyland cannot be held liable to the plaintiff under the facts of this case.
Eliminating the previously-promoted principles of "stacking" available policies of insurance coverage to enhance and enlarge the source of compensation for plaintiff's pursuing recovery through motor vehicle liability claims, General Statutes § 38a-335(c) provides in relevant part: "In no event shall any person be entitled to receive duplicate payments for the same element of loss." See, e.g., Renz v. Allstate Ins. Co., 61 Conn.App. 336, 337 fn.1, 763 A.2d 1072, cert. denied, 255 Conn. 945, 769 A.2d 61 (2001) (addressing "stacking" in the context of § 38a-336(d)).
Transportation General counters that Dairyland's motion for summary judgment (#120) should be denied because Transportation General was not obligated to provide uninsured motorist coverage to the plaintiff. Transportation General further argues that even if it was required to provide insurance coverage to protect the plaintiff with regard to the motor vehicle incident in question, any such obligation was satisfied through the language in the lease agreement between Transportation General and the plaintiff as this lease required the plaintiff himself to obtain uninsured motorist coverage. According to Transportation General, this coverage is in effect through the Dairyland policy that the plaintiff maintained in December 2003. (#126.)
Through his Objection to Dairyland's motion for summary judgment (#28), the plaintiff candidly agrees with Dairyland's argument that there are no issues of material fact as to Transportation General's status as the primary provider of uninsured motorist coverage. The plaintiff's objection is based on procedural prematurity, rooted in his claim that until the court's ruling on Transportation General's motion for summary judgment is delivered, there are genuine issues of material fact related to the plaintiff's claim against Dairyland. The court finds Dairyland's summary judgment issues to be separate and distinct from those raised by Transportation General, and thus respectfully declines to adopt the plaintiff's premise that procedural prematurity requires one defendant's motion for summary judgment to be resolved before another's in this case.
Instead, Dairyland's motion for summary judgment, and the plaintiff's objection thereto, are properly resolved through a deliberate and methodical review of the insurance policy purchased by the plaintiff and represented by Exhibit B to Dairyland's Motion for Summary Judgment (#120). The rules for construction of the terms of such an insurance policy are not the subject of any dispute. Therefore, in performing this task, the court adheres to the axiom that "the terms of an insurance policy are to be construed according to the general rules of contract construction . . . 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 . . . 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." (Internal quotation marks omitted.) Galgano v. Metropolitan Property Casualty Ins. Co., 267 Conn. 512, 519, 838 A.2d 993 (2004); cited in Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 785, 900 A.2d 18 (2006). "[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 . . . [giving the] words . . . [of the policy] their natural and ordinary meaning . . . [and construing] any ambiguity in the terms . . . in favor of the insured . . . Moreover, although the legal definition of the disputed claim is relevant in determining whether that claim is covered under the policy language at issue, that policy language remains the touchstone of our inquiry." (Internal and external citations omitted; internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, supra, 278 Conn. 784-85.
Using this measure to assess the policy at issue, it is evident that Dairyland has no obligation to the plaintiff under the particular circumstances of this case, based on the allegations of the complaint with regard to the December 2003 motor vehicle accident. The clear and unambiguous language of the Dairyland insurance extends liability coverage in the amount of $20,000 for each person involved in an accident; the plaintiff does not contest the extent of this coverage, nor does the plaintiff contest the representation that a similarly limited amount of coverage is afforded through Transportation General's self-insurance for the vehicle permissively operated by the plaintiff at the time of the incident. See Exhibit C to Dairyland's Memorandum of Law in Support of Motion for Summary Judgment (Dairyland Policy) (#121); see also "the lease": Exhibit A to Dairyland's Memorandum of Law in Support of Motion for Summary Judgment (#121), and Exhibit C to the plaintiff's Memorandum of Law in Support of Objection to Motion for Summary Judgment (#129). The Dairyland policy lists only one covered vehicle, a 1989 Oldsmobile Regency; the insurance identification card issued by Dairyland lists the 1989 Oldsmobile as the only car covered by that policy. It is undisputed that the plaintiff was not driving the 1989 Oldsmobile at the time of the accident, and the parties do not contest the plaintiff's allegations, set forth in his complaint, that at the time of the December 2003 motor vehicle incident, he was operating the 1998 Ford automobile.
In reaching the determination that there is no genuine question of material fact that could support Dairyland's claimed obligation to provide insurance to cover the plaintiff while he operates the 1998 Ford, the court further notes that, Dairyland policy does cover "Substitute Cars" as well as "Other Cars" that the policy holder uses "with the permission of the owner." See Dairyland Policy, "Your Plain Talk Car Policy: Cars We Insure; Other Cars." Clear exclusions apply, however, even to this extension of insurance to other cars. For instance, Dairyland would, in general, "insure other cars you use with the permission of the owner." Id. However, the language of the policy clearly and unambiguously states that this extension of insurance "doesn't include cars . . . furnished for the regular use of [the policy holder] . . ." Id. In addition to this exclusion for a vehicle furnished to the plaintiff for his regular use, other aspects of the policy language expressly exclude coverage for the plaintiff while operating, as a permissive user, Transportation General's leased vehicle in December 2003. See Exhibit C (#121), Dairyland Policy, "Your Plain Talk Car Policy: Liability Insurance; Excluded Uses of Cars." The policy at issue provides patent notice to the plaintiff that no aspect of Dairyland's coverage would be applicable to him while he was driving Transportation General's 1998 Ford vehicle in the course of providing taxi or livery service for a fee: "While we provide broad protection under this insurance, there are some situations we don't insure . . . We don't insure any car you're driving while it's available or being used to carry persons or property for a fee." (Emphasis in the original.) Id. The lease between the plaintiff and Transportation General eliminates any question as to whether or not the 1998 Ford vehicle was one being used, in December 2003, on a regular basis, or for purposes of earning a fee on behalf of the plaintiff-operator. The first page of the lease, in the provisions entitled "Witnesseth," establishes the plaintiff's representation that he is a licensed taxicab driver in the state of Connecticut, and desires to "lease as an independent contractor/business, a taxicab from . . ." Transportation General. Paragraph 4. of the lease, entitled "Services," expressly contemplates "the fares or other amounts received by [the plaintiff] in connection with the operation of said taxicab," thus directly implicating the overt provisions of the Dairyland policy excluding coverage for any car being driven while it is "being used to carry persons or property for a fee." See Exhibit C (#121), Dairyland Policy. "Your Plain Talk Car Policy: Liability Insurance; Excluded Uses of Cars."
Using the appropriate principles of insurance contract construction, therefore, and viewing the allegations of the complaint in the light most favorable to the non-movant, the court is constrained to conclude that when he was involved in the accident in December of 2003, the plaintiff was driving a motor vehicle leased from Transportation for the purpose of earning him a fee, but that at the time and while he was so using that vehicle, the plaintiff was driving a car that was not covered by the Dairyland insurance policy. See Smith v. Greenwich, supra, 278 Conn. 464. In his August 18, 2006 Objection to [Dairyland's] Motion for Summary Judgment (#128), the plaintiff essentially concedes this point, graciously agreeing that Dairyland's motion should eventually be granted. The plaintiff argues, however, that Dairyland's motion should not be granted because he sees resolution of the issues raised through Transportation General's August 24, 2006 motion for summary judgment (#130) as a necessary predicate to determination of the issues raised by Dairyland. This aspect of the plaintiff's argument may well be referrable to the subject matter of Transportation General's objection to Dairyland's motion for summary judgment (#126), given the fact that Transportation General submitted its opposition arguments to the court on July 17, 2006, before it actually filed its own motion for summary judgment on August 24, 2006. Here, however, the plaintiff has failed to present the court with any valid basis, in law or in fact, for requiring the determination of the summary judgment issues in any particular order.
See footnote 6.
Even if the court adhered to the plaintiff's preferred schedule for resolving the summary judgment issues, the merits of this matter remain constant: the clear and explicit language of the Dairyland policy provides the basis for the court's resolution of the issues raised by that defendant through its motion for summary judgment (#120). The Dairyland policy only covers the 1989 Oldsmobile and specifically eliminates coverage of vehicles used to carry people for a fee. Therefore, there is no question of fact as to whether the plaintiff can recover under Dairyland's policy, which clearly and unambiguously excluded coverage while he was operating the 1998 Ford at the time of the December 2003 motor vehicle accident. See also Section 38a-363(d), defining the statutory requirement "that it is the owner of the motor vehicle, not the insurer, who is obligated to provide uninsured motorist protection." See Przybyloski v. Catholic Mutual Group, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 065436 [31 Conn. L. Rptr. 235], citing Platcow v. Yadsuda Fire Marine Ins. Co., supra, 59 Conn.App. 55.
Viewed in the light most favorable to the plaintiff opponent, and drawing inferences in favor of the nonmoving party, the court concludes "the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that [Dairyland] is entitled to judgment as a matter of law." Smith v. Greenwich, supra, 278 Conn. 463-64; see also State v. Burnaka, supra, 61 Conn.App. 52. Under the circumstances of this case, Dairyland is not liable to provide uninsured motorist coverage to the plaintiff for the incident in question, thereby entitling this defendant to summary judgment as contemplated by Practice Book § 17-49.
III. CONCLUSION
WHEREFORE, for the foregoing reasons, the court hereby GRANTS the Motion for Summary Judgment in Favor of Defendant Dairyland Insurance Company (#120); OVERRULES the plaintiff's Objection to [Dairyland Insurance Company's] Motion for Summary Judgment (#128), and further OVERRULES Transportation General's Objection to [Dairyland Insurance Company's] Motion for Summary Judgment (#126).