Opinion
No. CV96 033 82 40 S
February 6, 1998
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY NO. 128)
The plaintiff, Robert Simpson, filed a five-count complaint on November 20, 1996, against the defendants, Leonard Varvella, Luis Varvella, the City of Bridgeport (city), Citizens Insurance Company of America (Citizens), and Patriot General Insurance Company (Patriot). The plaintiff alleges that on or about April 16, 1995, he was operating an automobile owned by the city in the scope of his employment with the city. The plaintiff's automobile was struck by an automobile owned by Luis Varvella as it was being operated by Leonard Varvella, causing the plaintiff to be injured. The plaintiff further alleges that at the time of the accident, he was a covered person pursuant to the terms of a self-insured automobile liability policy which the city had in effect on the automobile.
On December 11, 1997, the city filed a motion for summary judgment as to the third count of the complaint which alleges that the city wrongfully refused coverage to the plaintiff. The plaintiff filed an objection to the city's motion for summary judgment on December 22, 1997. Patriot also objected to the city's motion on December 29, 1997. The matter was heard by the court on January 5, 1998.
"Practice Book § 384 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. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material fact 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." (Citations omitted.) Thompson Peck, Inc. v. Division Drywall Inc., 241 Conn. 370, 374, 696 A.2d 326 (1997).
The city argues that it is entitled to summary judgment based on the recent case of Bellucci v. City of New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. 376851 (November 17, 1997) (Silbert, J.) (20 CONN. L. RPTR. 289). The city argues that it is undisputed that the plaintiff is a city employee injured in the course of his employment by an alleged uninsured motorist. The city also argues that it is a self-insurer, and has submitted the affidavit of City Attorney Mark T. Anastasi and various other exhibits verifying this claim. The city further argues that based on the Bellucci case, as a self-insurer, it was not required to provide uninsured motorist coverage to the plaintiff under General Statutes § 38a-336 (a)(1).
General Statutes § 38a-336 (a)(1) states: "Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage with limits requested by any named insured upon payment of the appropriate premium, provided each such insurer shall offer such coverage with limits that are twice the limits of the bodily injury coverage of the policy issued to the named insured. The insured's selection of uninsured and underinsured motorist coverage shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No insurer shall be required to provide uninsured and underinsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured."
The plaintiff argues that in the course of discovery, the city disclosed that the plaintiff was an insured and that there was "20/40 UIM" coverage available to him. (Objection To Motion For Summary Judgment; Exhibit A: City of Bridgeport's Response To Plaintiff's Interrogatories.) The plaintiff also refers to documents supplied by the city which indicate that there is $20,000/$40,000 in uninsured motorist coverage available to the plaintiff. (Objection To Motion For Summary Judgment; Exhibit A: City of Bridgeport's Response To Plaintiff's Interrogatories.) The plaintiff further argues that the Bellucci case merely stands for the proposition that a self-insurer need not necessarily provide uninsured motorist coverage, but that the city has chosen to do so here. The plaintiff claims that an issue of fact therefore remains in dispute as to whether coverage has been provided to the plaintiff under the city's policy. The plaintiff also argues that the city was required to provide the plaintiff with uninsured motorist coverage as a self-insurer; acknowledging that there is a split of authority on this issue citing Zak v. Watts, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 564361, CONN. L. RPTR. 668 (June 24, 1997) (Sullivan, J.) for the proposition that there is no indication that 1993 Public Act No. 93-297 is applicable only to outside insurance coverage, but not self-insurers.
Public Act No. 93-297 has been codified in the General Statutes at § 38a-336 (f), and states: "Notwithstanding subsection (a) of section 31-284, an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured's otherwise applicable uninsured and underinsured motorist coverage."
The Supreme Court has expressly reserved ruling on "the effect of No. 93-297 of the 1993 Public Acts on those cases in which an employer is self-insured." Reliance Ins. Co. v. American Ins. Co., 238 Conn. 285, 289 n. 4, 679 A.2d 925 (1996).
"Although the concept of an `insurer' as defined in General Statutes § 38a-363 (b) includes a `self-insurer,' the statutes requiring the provision of uninsured motorist coverage, by their own terms, apply only to `automobile liability insurance polic[ies]' and `insurers licensed to write automobile liability insurance in the state.' General Statutes § 38a-336 (a)(1) provides that, `[e]ach automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . . . Each insurer licensed to write automobile liability insurance policy shall provide uninsured and underinsured motorists coverage . . . .' Although this statute is replete with specific references to insurance companies and insurance policies, there is no specific reference to a self-insurer. Inclusio unius est exclusio alterius. Thus, in short, although the owner of any passenger motor vehicle must provide `security', whether by a motor vehicle liability insurance policy written by a licensed provider or through self-insurance, it is only policies of insurance written by licensed providers that must also provide uninsured motorist coverage. If the legislature had wished to require that a self-insurer provide uninsured and or underinsured motorists coverage, it could easily have done so. If the legislature wishes to require that a self-insurer provide uninsured and or underinsured motorists coverage, it can easily do so. It is not for this court to usurp that role."
Bellucci v. City of New Haven, Superior Court, judicial district of New haven at New Haven, Docket No. 376851 (November 5, 1996) (Silbert, J.) (18 CONN. L. RPTR. 218, 218-19). Thus, the court, in answering the question of whether a self-insured entity has any obligation to provide uninsured motorist benefits, decided that it would not. Id., 219. This language was also quoted by the court in its later Bellucci decision at 20 CONN. L. RPTR. 289-90.
Bellucci stands for the proposition that a self-insured entity is not required to provide uninsured motorist coverage pursuant to § 38a-336. However, those decisions do not go so far as to preclude recovery by a plaintiff under a self-insured policy of an entity which has chosen to carry uninsured coverage at the time of an accident. The court in Bellucci recognized that self-insurers were free to provide uninsured coverage as part of the "security" offered to its insureds.
The court in Zak v. Watts, supra, Superior Court, Docket No. 564361, CONN. L. RPTR. 668, found that Public Act 93-297 applied equally to municipal self-insurers, requiring such entities to provide uninsured coverage as part of the required "security" under General Statutes § 38-175c, now § 38a-336.
Based on the evidence presented by the plaintiff, a material issue of fact remains in dispute as to whether such coverage was provided here by the city to the plaintiff. Accordingly, the defendant City of Bridgeport's motion for summary judgment is denied, as a material issue of fact remains in dispute, and the city is not entitled to judgment as a matter of law.
Given the current state of the pleadings, which as of yet do not resolve the question of whether the city provided uninsured coverage to the plaintiff at the time of the accident, and the nature of the current motion before the court, it is not necessary for the court to address the legal issue raised by the apparent split of authority in the superior court concerning whether the city should have been required to provide uninsured coverage as a self-insurer to the plaintiff.
SKOLNICK, J.