Opinion
No. TTD CV 09 5004597
October 24, 2011
MEMORANDUM OF DECISION
The plaintiff, Kim Soucy, individually and as conservator for the estate of Sean Soucy, sues the Charter Oak Fire Insurance Company, d/b/a Travelers, in two counts for underinsured motorist coverage payments arising from two, distinct insurance policies issued by that same carrier. One policy extended liability coverage to two, family vehicles, and the other to two, commercial vehicles. The policy limit on the personal automobile coverage was $300,000 and on the commercial coverage, $500.000.
The parties concur that the facts of this case are undisputed. Sean Soucy was a passenger in a vehicle owned and driven by Justin Atkins. That vehicle struck a guardrail and flipped over resulting in severe injuries to Sean Soucy. It is agreed that fair compensation for these injuries far exceeds the combined limits for all policies potentially involved. The plaintiff has already received the policy limit of $25,000 from the tortfeasor's insurance company.
The parties have filed cross-motions for summary judgment which address the same legal controversy, viz, whether the anti-stacking provisions of General Statutes § 38a-336(d) apply to the circumstances of this case. The parties acknowledge that if § 38a-336(d) applies, the maximum coverage is $500,000, and if that statute is inapplicable, it is $800,000.
The plaintiff relies on the case of Lane v. Metropolitan Property, 125 Conn.App. 424 (2010), to support its claim of liability. In Lane, supra, the owner and operator of a vehicle was badly hurt when a rampant universal joint smashed through the windshield. Id., 427. Two insurance policies provided uninsured motorist coverage for his vehicle, Id., 427-28. The plaintiff in that action claimed full coverage under both policies which had the same limit. Each insurer, on the other hand, argued that the anti-stacking language of § 38a-336(d) restricted their liability to one-half share of the limit under a single policy.
The Appellate Court held that, because the first sentence of § 38a-336(d) specifically applied to uninsured motorist coverage for two or more motor vehicles, the entire subsection "pertains only to situations involving two or more motor vehicles." Id., 431. In that case, the plaintiff based his claim on two policies covering only one vehicle and not on the stacking of coverages for multiple vehicles. Therefore, § 38a-336(d) was inapplicable. Id., 436. Consequently, that plaintiff was entitled to full coverage from both policies on his single vehicle. Id.
By contrast, the plaintiff in the present action is not basing liability on multiple policies covering a single vehicle, and the Lane holding is inapposite. The plaintiff is attempting to claim the benefit of two policies which cover two, different pairs of vehicles. That claim is precisely within the set of circumstances which the Lane decision stated would activate the anti-stacking prohibitions § 38a-336(d). Id., 435.
As Travelers points out, the controlling caselaw is set forth in Fuchs v. Allstate Insurance Company, 96 Conn.App. 284 (2006). The salient facts of Fuchs are virtually identical to the present scenario. There, the plaintiff was a passenger in her sister's car when it collided with another vehicle. The plaintiff received compensation from her sister's insurance company and that of the owner of the other vehicle. Id., 286. That plaintiff then claimed she was entitled to underinsured motorist coverage as an insured both under a policy insuring her mother's vehicle and a policy covering her father's vehicle. The trial court granted summary judgment in favor of the defendant, who was the father's insurer, based on the anti-stacking provision contained in § 38a-336(d). The Appellate Court affirmed that decision. Id., 285.
Section 38a-336(d) expressly imposes maximum coverage determinations when the insured is injured while in a "nonowned vehicle." Coverage on the nonowned vehicle is deemed primary. "All other applicable policies shall be excess." The statute then sets as the limit to the amount recoverable the highest limit of any single, applicable policy. That recovery is apportioned among the carriers "in accordance with the proportion that the limits of each excess policy bear to the total limits of the excess policies."
In Fuchs, supra, because the plaintiff had previously received insurance payments beyond the highest limit for any individual excess policy, the defendant was entitled to judgment as a matter of law. Id., 292-93. This court holds that the Fuchs decision controls, and § 38a-336(d) applies to restrict the coverage to $500,000, the greater of the two, excess policies.
The parties have also agreed that if § 38a-336(d) applies, then the highest excess policy limit of $500,000 is reduced by the $25,000 which the plaintiff has already received, leaving a total award on both counts of $475,000. The $475,000 is apportioned under § 38a-336(d) as follows: $178,125 on the personal automobile policy which is the subject of the third count; and $296,875 applicable to the commercial policy which is the subject of the fourth count.
Travelers' motion for summary judgment is granted in accordance with this apportionment, and the plaintiff's motion for summary judgment is denied.