Summary
rejecting proposition that an insured's default for failure to plead prevents the injured party, a defendant in the insurer's declaratory judgment action, from moving for summary judgment
Summary of this case from Dorchester Mut. v. Legeyt, NoOpinion
No. CV07-5011800S
August 6, 2008
MEMORANDUM OF DECISION
The court is presented with the interesting issues of whether an injured party, named as a defendant in a declaratory judgment action brought by the tortfeasor's insurer, may obtain summary judgment, where the named insured and the tortfeasor, also named as defendants, have been defaulted, and, additionally, whether the court is compelled to grant the insurer's motions for judgment upon default as against the two defaulted defendants.
The case presently before the court is a declaratory judgment action brought by Sagamore Insurance Company (Sagamore) against Jennifer Deming, Jessica Piczko, and Karen Burch. The matter arises out of a January 13, 2007 motor vehicle accident when, according to the allegations of the complaint, Burch allegedly sustained injuries when her vehicle was struck in the rear by a vehicle owned by Piczko and operated by Deming. The complaint further alleges that Sagamore insured Piczko under an automobile liability policy and that Burch brought suit against Piczko and Deming, which is currently pending in the New Haven Judicial District. In this action, Sagamore seeks to have the court construe its policy of insurance with Piczko and declare that Sagamore is not obligated to provide a defense and/or indemnify Piczko and/or Deming in that underlying action, and that the liability alleged in the Burch complaint is excluded from coverage under the Sagamore policy.
According to the complaint, a true and certified copy of the Sagamore policy, as well as a true copy of the Burch complaint, were attached to the complaint as exhibits; neither document, however, was attached to the complaint or filed with the court.
On April 8, 2008, Burch moved for summary judgment, on the basis that the facts alleged in the Burch complaint are sufficient to compel Sagamore's duty to defend, that Deming had the express permission of Piczko to use the vehicle, and that the accident falls within the coverage provided to Piczko under the Sagamore policy. The plaintiff filed an objection and memorandum of law in opposition on May 13, 2008. The matter was initially argued at the short calendar on June 16, 2008. The defendant filed a supplemental memorandum on July 1, 2008. Ultimately, the matter was docketed on the short calendar again on July 8, 2008 at which time the parties agreed that the court could take the matter on the papers.
Additionally, the plaintiff's motions for judgment as to Piczko and Deming, filed on December 18, 2007, appeared on the short calendar as non-arguable matters on July 14, 2008.
DISCUSSION I
A "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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829, 1989). "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". Practice Book § 17-45.
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.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
"A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "[T]he genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Internal quotation marks omitted.) Id., 378-79.
"A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, supra, 158 Conn. 379. "Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Internal quotation marks omitted.) Id.
"Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46.
"Summary judgment `is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id.
"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.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "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).
In her memorandum of law in support of her motion for summary judgment, Burch posits that summary judgment should enter on the issue of Sagamore's duty to defend because the facts alleged in the Burch complaint "bring the injury within coverage." Burch also claims that because Deming and Piczko admit that Deming was using the vehicle with Piczko's express permission, summary judgment should enter in favor of the defendants on the issue of liability coverage. Sagamore objects, claiming that genuine issues of material fact exist concerning Deming's permission to operate the vehicle, and argues that Burch has no standing to move for summary judgment.
The court will first address Sagamore's argument that Burch is precluded from filing the motion for summary judgment. To start, Sagamore takes issue with Burch's claim that summary judgment should enter in favor of all defendants, as counsel for Burch has not appeared on behalf of Deming and Piczko. While the motion for summary judgment is filed by counsel on behalf of Burch, argument is made in the memorandum of law that summary judgment should enter in favor of all defendants. Sagamore is correct in that counsel for Burch cannot obtain summary judgment on behalf of Deming and Piczko, given that she does not represent them. The court recognizes, however, that a ruling on Burch's summary judgment motion in this declaratory judgment action may impact Deming and Piczko. Sagamore also argues that because Deming and Piczko were previously defaulted for failure to plead (and there are pending motions for judgment against these defendants), Burch is somehow prevented from filing her own motion for summary judgment. The court rejects this argument; the fact that other defendants have been defaulted for failure to plead cannot prevent Burch from moving for summary judgment, nor does it prohibit the court from ruling on the motion, with whatever the attendant implications are, should it be granted.
In United National Indemnity Company v. Zullo, 143 Conn. 124 (1956), a declaratory judgment action, the insurer named as defendants the named insured, the operator of the insured vehicle, and the injured party. Neither the named insured nor the operator of the insured vehicle appeared for trial; the trial court effectively denied the plaintiff's motion for default against those two defendants, and the trial proceeded against the injured party only. Ultimately, the plaintiff obtained a judgment declaring that the policy afforded coverage to the named insured and operator of the insured vehicle. The Connecticut Supreme Court, in affirming the trial court, rejected the insurer's argument that defaults against the named insured and insured operator would have compelled a judgment declaring that the insurer was not liable under the policy, stating as follows:
"An action for a declaratory judgment is an action at law . . ., at least when, as in the present case, the rights or immunities to be declared are such as would normally be decided in an action at law. The effect of the entry of a default is different in an action at law from what it is in an equitable action. In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive. Id. at 129-30 (citations omitted).
The court further stated:
"[T]he prayer for relief in an action for a declaratory judgment . . . is fundamentally different from a prayer for relief in the ordinary action. In a declaratory judgment action, the prayer is not that the court declare that the plaintiff has certain rights and immunities but rather that the court determine the question whether he does have such rights and immunities. So in the present case the prayer of the plaintiff was for a judgment determining whether the conduct of its insured had removed the judgment rendered against him from the coverage of the policy. The prayer was not that the court declare that the plaintiff was so relieved. A judgment which answered the question would satisfy the prayer for relief whether the answer was in favor of the plaintiff or in favor of the defendant . . . Accordingly, if a default had been entered . . . [i]t would have had the effect of an admission only that a question had arisen which entitled the plaintiff to a judgment determining whether the policy covered the accident." Id. At 131-32 (citation omitted). See also Canal Insurance Company v. Haniewski, Superior Court, judicial district of New Haven, Docket No. 417942 (July 3, 2001, Levin, J.) (in declaratory judgment action brought by insurer against the named insured, the operator of insured vehicle and the estate representing the victim in the fatal motor vehicle accident, denying the plaintiff's motion for summary judgment, where the named insured and operator of the insured vehicle had previously been defaulted for failure to appear, and where the only objection to the motion for summary judgment filed was by the estate of the victim); Aetna Casualty and Surety v. Gentile, Superior Court, judicial district of New Haven, Docket No. 353207 (March 22, 1994, Fracasse, J.) (in declaratory judgment action brought by insurer against insureds, tortfeasor, and the injured party, denying insurer's motion for judgment as to tortfeasor who had previously been defaulted for failure to appear, and rejecting the insurer's argument that a default judgment would include the declaratory judgment motion).
Sagamore also urges the court to reject Burch's motion, because she has no "legal right to move for judgment on a contract to which she is not a party," and has no standing. Sagamore is reminded, however, that this is a declaratory judgment action, and that Sagamore has named Burch as a defendant (and presumably someone with a direct interest in the action.)
Sagamore did not append to the complaint a certificate stating that all interested persons have been joined as parties to the action or have been given reasonable notice of the action. See Practice Book 17-56(b).
Connecticut Practice Book § 17-54 et seq., sets forth, inter alia, the scope, conditions, and procedure for declaratory judgment actions. Significantly, § 17-56(b) provides that "[a]ll persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof."
The purpose of a declaratory judgment action is to secure adjudication of rights where there is substantial uncertainty of legal relations between the parties or a substantial question in dispute. Wilson v. Kelley, 224 Conn. 110, 115 (1992); Mannweiler v. LaFlamme, 232 Conn. 27, 33 (1995). The statute authorizing the courts to render declaratory judgments is to be liberally construed. Horton v. Meskill, 172 Conn. 615, 627-28 (1977). An interested person may claim a right to intervene under C.G.S. § 52-29 and Practice Book § 17-56. Electric Cable Compounds, Inc. v. Seymour, 95 Conn.App. 523, 529 (2006).
The declaratory judgment action is frequently used to determine issues of insurance coverage. E.g. Safeco Insurance Co. v. Vetre, 174 Conn. 329 (1978). Courts have routinely decided coverage issues in declaratory judgment actions where the person injured in the underlying action is a party to the declaratory judgment action. E.g. Hanover Insurance Co. v. Halfmann, Superior Court, judicial district of New Haven, Docket No. 0412888 (March 9, 1999, Zoarski, J.) (declaratory judgment action brought by insurer against both the insured and injured third party, denying injured party's motion to strike which posited that the issue of the insured's negligence would be best determined in the underlying action); Vermont Mutual Insurance Co. v. Westwood Condominium Association, Superior Court, judicial district of Hartford, Docket No. 03 0825593 (March 30, 2005, Wagner, J.T.R.) (declaratory judgment action brought by insurer against both the insured and injured third party, where insured cited in its prior insurer; denying the prior insurers motion to dismiss, and stating "the declaratory judgment statute is sufficiently broad to permit the joining in of the two insurance companies for a judicial determination of which coverage applies and the consequent duty to defend or indemnify the insured"; Nationwide Insurance Company v. Bergeron, 8 Conn. L. Trib. No. 12, p. 13 (1981) (declaratory judgment action brought by insurer against its insured, the injured third party, and the third party's insurer; denying motions to strike, holding that an insurance carrier may bring a declaratory judgment action against another carrier to determine the validity of the latter's disclaimer of coverage for its insured).
Additionally, courts, when directly confronted with the issue of whether the injured person is a proper party to a declaratory judgment action determining coverage between an insurer and the insured tortfeasor, have permitted such participation. See Wynn v. Commercial Union Insurance Company, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 93 0135153 (June 13, 1994, Lewis, J.) [12 Conn. L. Rptr. 51], (declaratory judgment action brought by injured third party against tortfeasor's insurers; denying motion to strike of insurer, and rejecting argument that injured party had no standing to bring the declaratory judgment action); Philadelphia Indemnity Insurance Co. v. Atlantic Risk Management, Superior Court, judicial district of New Haven, Docket No. 06 4018752 (September 20, 2006, Robinson, A., J.) (declaratory judgment action brought by insurer against its insured, granting motion to intervene filed by injured party/insurer which had paid over 4 million dollars to satisfy judgment resulting from the defendant's alleged mishandling of claims).
The purpose of the declaratory judgment notice rule is to ensure that all persons with direct interests are able to protect their interests by participating in the action. Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 288 (2007). "Anyone with an interest in the subject matter is entitled to reasonable notice and an opportunity to be heard, whether he supports the plaintiffs' or the defendants' position. This court has indicated a preference for joining interested persons as parties, rather than merely providing them with notice of the action. Simply notifying an interested person of the pendency of the action does not ensure that the person will be bound by the resulting judgment. In fact, the rules of practice, as amended in 2000, specifically provide that "[e]xcept as otherwise provided by law, no declaration shall be binding against any persons not joined as parties. If it appears to the court that the rights of non-parties will be prejudiced by its declaration, it shall order entry of judgment in such form as to affect only the parties to the action." Practice Book § 17-56(d). Thus, the notice requirement ensures that interested persons are aware of the requested declaratory relief and are able to move to intervene to protect their interests, should they choose to do so." Id. at 287-88 (citations omitted; internal quotations omitted).
In AIU Insurance Company v. Brown, supra, a declaratory judgment action brought by the insurer against its insured and the injured third party, our Appellate Court reversed the trial court, and held that the other insurer should be allowed to intervene as a defendant. The court stated:
Where [the interested persons] are reasonably within the reach of the process and are not so numerous that it would impose an unreasonable burden upon the plaintiff they should be made parties; but if they or some of them are not reasonably available for service or to summon them or all of them into the action would put upon the plaintiff a burden he ought not fairly to be asked to assume, the provision for reasonable notice applies . . . Statutes and rules relating to the remedy of declaratory judgments are given liberal construction to effectuate their purposes. One great purpose of the statute is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits. Fully to carry out the purposes intended to be served by such judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening. Even if the right claimed . . . is a contingent one, its present determination may well serve a very real practical need of the parties for guidance in their future conduct. A construction of our statute and rules which would exclude from the field of their operation the determination of rights, powers, privileges and immunities which are contingent upon the happening or not happening of some future event would hamper their useful operation. Id. at 368-69. (Citations omitted; internal quotations omitted.)
See also Canal Insurance Company vs. Haniewski, supra (the defendant estate, representing the victim in the motor vehicle accident, has standing to oppose a motion for summary judgment filed by the plaintiff in a declaratory judgment action regarding insurance coverage). The case law makes clear that Burch, like any other party to a declaratory judgment action, has the right to participate and to be heard. The court rejects Sagamore's argument that Burch has no standing or legal right to file the present motion, and will address Burch's motion for summary judgment on the issue of Sagamore's duty to defend.
In its prayer for relief, Sagamore specifically seeks judgment "[d]eclaring that the plaintiff, Sagamore, is not obligated to defend Piczko and/or Deming under the policy for the claims made against them in the Burch complaint." Burch moves for summary judgment on the basis of Sagamore's duty to defend, and argues that a comparison of the allegations in the underlying complaint to the terms of the insurance policy establishes coverage, and therefore Sagamore's duty to defend. Sagamore does not, in its brief, address this argument, or its duty to defend.
"The question of whether an insurer has a duty to defend its insured is purely a question of law, which is to be determined by comparing the allegations of [the] complaint with the terms of the insurance policy." Community Action for Greater Middlesex County, Inc. v. American Alliance Insurance Company, 254 Conn. 387, 395 (2003) (citation omitted). While the declaratory judgment complaint in this action does contain some of the allegations of the Burch complaint, and the court would be willing to take judicial notice of the contents of the Burch complaint which is pending here, the Sagamore policy was not filed, certified or otherwise, with the motion for summary judgment. As such, the court is unable to undertake the necessary comparison, and must deny Burch's motion for summary judgment as to Sagamore's duty to defend. However, the court is expressly giving Burch permission to file a separate, second motion for summary judgment on the issue should it wish to do so, and Sagamore will then have an opportunity to address the duty to defend issue should it so desire.
Burch's motion and supplemental motion do contain numerous exhibits, including statements, transcripts, request for admissions, and case law. While the court would have been willing to consider the contents of the policy had it been attached to the complaint as a true and certified copy, unfortunately, as indicated in an earlier footnote, the insurance policy was not filed with the complaint nor has it been filed in part or in whole with any other pleading.
Finally, Burch argues that summary judgment should enter in her favor with respect to Sagamore's claim for a declaration that the liability alleged in the Burch complaint is excluded from coverage, because there are no genuine issues of fact as to permissive use. In support of her argument, Burch attached statements of Deming and Piczko to Sagamore, as well as copies of their deposition testimony, arguing that they establish that Deming had express permission from Piczko to use the vehicle and that no genuine issue of fact exists as to permissive use. Additionally, Burch refers to request for admissions she filed on Deming and Piczko, which went unanswered; Burch argues that they, too, establish that no genuine issue of fact exists as to permissive use.
With respect to Burch's request for admissions upon both Deming and Piczko, Burch is correct that insofar as neither Deming nor Piczko responded, the request for admissions are deemed admitted. Practice Book § 13-23(a). See Orenstein v. Old Buckingham Corporation, 205 Conn. 572, 575-77 (1987) (affirming decision of trial court which granted summary judgment in favor of the third-party defendants, against the third-party plaintiff; involving requests for admissions filed by third-party defendants against the third-party plaintiff). Any matter admitted is conclusively established, although the admission of any matter does not waive any objections to its competency or relevancy. Practice Book § 13-24; Baughman v. Collins, 56 Conn.App. 34, 38-39 (1999).
Practice Book § 13-23(a) provides in relevant part that "[e]ach matter of which an admission is requested is admitted unless, within thirty days . . . the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter . . ."
In her motion, Burch specifically argues that Deming had express permission of Piczko to use the vehicle and that therefore it falls within cover of the Sagamore policy. Sagamore, in its objection, points out various contradictions and discrepancies which, it contends, precludes summary judgment in favor of Burch. Sagamore raised no objection to Burch's use of Deming and Piczko's admissions, although admissions by a co-defendant are inadmissible against the plaintiff, who did not make the admission. Palombizio v. Murphy, 146 Conn. 352 (1959) (in trial against remaining defendant, where other defendant was defaulted, held any admission of defaulted defendant inadmissable in trial against remaining defendant); Wentland v. Charette, Superior Court, judicial district of New Britain at New Britain, Docket No. 04-052669 (May 19, 2006, Shapiro, J.) (in defendant's unopposed motion for summary judgment, held unanswered request for admissions filed by defendant against co-defendant could not be used by defendant in his motion for summary judgment against the plaintiff, because the plaintiff did not make the admission; denying the defendant's motion for summary judgment). Despite Sagamore's failure to object to the use of the admissions, and regardless of their admissibility, as a practical matter, the end result is the same — denial of the motion for summary judgment on the issue of whether liability is excluded from coverage.
As Sagamore points out in its objection, it, too, filed requests for admissions against Piczko, which went unanswered. Burch did not object to Sagamore's use of Piczko's admissions against Burch.
The requests for admission filed by Burch and Sagamore against Piczko, were they to be considered, demonstrate conflicting statements from Piczko: the unanswered admissions filed by Burch against Piczko conclusively establish that Piczko gave Deming express permission to drive the vehicle on the day in question; the unanswered admissions filed by Sagamore against Piczko conclusively establish that Piczko said in an earlier recorded statement that she did not give Deming permission to drive the vehicle on the day in question.
Similar discrepancies and contradictions abound in the recorded statements and deposition transcriptions of Piczko and Deming. For example, Piczko testified that she shared the vehicle in question with Deming, and Deming need not ask for permission to use the vehicle; in her recorded statement, Piczko indicated that Deming was required to ask for permission to use the vehicle, and that she did not ask for permission the day in question.
Sagamore did not object to Burch's submission of uncertified deposition transcripts and unsworn recorded statements, and in fact, Sagamore utilized some of the same materials itself in support of its objection. With respect to documents that are submitted in support of or opposition to a motion for summary judgment, the court is limited to considering documents that would be admissible at trial. City of New Haven v. Pantani, 89 Conn.App. 675, 680 (2005). The Pantani court reversed the decision of the trial court which had granted the plaintiff's motion for summary judgment, having considered uncertified, unauthenticated documents:
Practice Book § 17-45 provides in relevant part that "[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 . . ." That section does not mandate that those documents be attached in all cases, but we note that "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). In fact, we have held that "Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." United Services Automobile Ass'n, v. Marburg, 46 Conn.App. 99, 107-08. 698 A.2d 914 (1997). Therefore, before a document may be considered by the court in support of a motion for summary judgment, "there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . ." Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be. In this case, the plaintiff submitted numerous exhibits in support of its motion for summary judgment. The plaintiff failed, however, either to attach an affidavit attesting to the truth and accuracy of the various submissions or to provide certified copies of any of the documents. Id. at 678-79.
However, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts. Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) (holding that trial court did not abuse its discretion in not considering the uncertified deposition testimony submitted by both parties). See also American Home Assurance Company v. Scalise, Superior Court, Judicial District of New Britain, Docket No. 980491778 (December 18, 2000, Shapiro, J.) [28 Conn. L. Rptr. 647] (where the defendant did not object to the plaintiff's submission of an uncertified, unauthenticated copy of portions of a professional liability insurance policy, the court considered the document, ultimately granting the plaintiff's motion for summary judgment); Grant v. Yale University, Superior Court, Judicial District of New Haven, Docket No. 99 0430454 (March 27, 2003, Licari, J.) (where there was no objection from the opposing party, the court considered uncertified copies of letters, interoffice memorandum, employer's statement of earnings, portions of a collective bargaining agreement, and portions of a deposition transcript); Langner v. Stop Shop, superior Court, Judicial District of New Haven, Docket No. 95 0377385 (January 27, 2000, Licari, J.) (the court considered uncertified, unauthenticated documents filed by both movant and non-movant, where neither party objected to the other party's documents.)
In light of the absence of any objection, the court will consider both the recorded statements and deposition transcripts submitted by Burch.
In light of these material contradictions and discrepancies, the defendant has failed to meet its burden of showing the absence of any material fact as to the exclusion from coverage/permissive use issue raised by the defendant.
Accordingly, Burch's motion for summary judgment is denied.
II
The plaintiff has also moved for judgment against Piczko and Deming, who were defaulted for failure to plead on November 30, 2007. The motions are denied. Although Piczko and Deming, by defaulting, admit certain material facts, admitting those material facts do not automatically lead to the conclusion that the liability alleged in the Burch complaint is excluded from coverage under the Sagamore policy, or that Sagamore is not required to defend and/or indemnify Piczko and/or Deming. There remains, for example, a genuine issue of fact as to whether Deming had permission to use Piczko's vehicle.
For those reasons, the plaintiff's motion for judgment as to Piczko and Deming are denied.