Opinion
No. CV 05 5001121
February 14, 2007
MEMORANDUM OF DECISION NO. 112, MOTION TO STRIKE
FACTS
On March 2, 2006, the plaintiff, Erica Todd, filed an amended complaint against the defendant, Nationwide Mutual Insurance Company, claiming underinsured motorist benefits. In her amended complaint, the plaintiff makes the following allegations. On May 31, 2000, the plaintiff's vehicle collided with the vehicle operated by Christopher Bernacchi after he failed to obey the red traffic control signal. The accident was caused by Bernacchi's negligence and carelessness. As a result of the accident, the plaintiff suffered severe personal injuries. At the time of the accident, Bernacchi operated a vehicle owned by American Honda insurance company. Bernacchi was not an authorized driver of that vehicle under the lease agreement. On April 27, 2005, the plaintiff executed a release of her claim against Bernacchi for payment of the sum of $100,000 by Geico insurance company, Bernacchi's liability insurance carrier. The owner of the vehicle, American Honda insurance company "made a contribution to the settlement of $275,000, rendering the total payment of $375,000." American Honda Insurance Company, "had no legal obligation to pay" the plaintiff because Bernacchi was not an authorized driver under the lease agreement. The plaintiff has exhausted all bodily liability bonds or insurance policies applicable at the time of the accident, in accordance with General Statutes § 38a-336a. At the time of the accident, the plaintiff was insured by the defendant for "underinsured motorist coverage, #5106D628481, with limits of $600,000 and conversion coverage of $600,000." The plaintiff gave the defendant timely notice of her underinsured motorist conversion coverage claim.
The plaintiff filed an original complaint on October 24, 2005. After the defendant's previous motion to strike was granted by the court on February 14, 2006, Lopez J., the plaintiff filed an amended complaint.
On May 18, 2006, the defendant filed a motion to strike the plaintiff's amended complaint on the ground that the plaintiff failed to adequately allege that she has exhausted all liability policies as required by General Statutes § 38a-336. The defendant has submitted a memorandum of law in support of the motion. On December 11, 2006, the plaintiff filed a memorandum of law in opposition.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike . . . requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
The defendant moves to strike the plaintiff's amended complaint on the ground that the plaintiff failed to adequately allege the exhaustion of all liability bonds and policies, which is required under General Statutes § 38a-336a in order to recover underinsured motorist benefits. In its memorandum of law, the defendant argues that because General Statutes § 38a-336 requires exhaustion of both the owner's and operator's liability policies applicable to the tortfeasor's vehicle, in order to adequately allege exhaustion the plaintiff should have alleged that the payment by the owner of the vehicle exhausted the owner's liability policy. The defendant further argues that the plaintiff's allegation that the owner was not obligated to pay because the operator of the vehicle was not an authorized driver under the lease agreement is invalid.
The plaintiff counters that she adequately alleged exhaustion by alleging that the owner of the vehicle was not obligated to pay the plaintiff because operator of the vehicle was not an authorized driver under the lease agreement and, therefore, alleging that the owner's policy was not "an applicable policy at the time of the accident" required to be exhausted under General Statutes § 38a-336a.
Underinsured motorist conversion coverage is governed by General Statutes § 38a-336a, which provides in relevant part: "(c) Each insurer shall be obligated to pay to the insured, up to the limits of the policy's underinsured motorist conversion coverage, after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . ." (Emphasis added.) The exhaustion required is both of the owner's and operator's liability insurance applicable to the underinsured motor vehicle. Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 810-11, 663 A.2d 377 (1995). Liability of the owners of the leased vehicles is governed by General Statutes § 14-154a. The Supreme Court "consistently construed [ § 14-154a] as imposing on one who rents or leases a motor vehicle to another the same liability as that of its operator, provided the vehicle, at the time in question, is being operated by one in lawful possession of it pursuant to the terms of the contract of rental." (Emphasis in original; internal quotation marks omitted.) Fojtik v. Hunter, 265 Conn. 385, 391, 828 A.2d 589 (2003). "[T]he driver is in `lawful possession' when he is an authorized driver under the terms of the lease agreement that limit the identity of the drivers authorized to use the vehicle." (Internal quotation marks omitted.) Moncrease v. Chase Manhattan Auto Finance Corp., 98 Conn.App. 665, 669, 911 A.2d 315 (2006).
In her memorandum in opposition, the plaintiff argues that the underinsured motorist coverage at issue in the present case is governed by General Statutes § 38a-336(b). The defendant in its motion to strike relies on the General Statutes § 38a-336a, not on § 38a-336(b). Section 38a-336(b) sets forth the insurer's obligations under underinsured motorist coverage, while § 38a-336a(c) sets forth the insurer's obligations under underinsured motorist conversion coverage. Section 38a-336a(a) provides in relevant part that "[t]he purchase of [the] underinsured motorist conversion coverage shall be in lieu of underinsured motorist coverage pursuant to section 38a-336." (Emphasis added.) In her amended complaint, the plaintiff alleges that she was insured by the [defendant] for underinsured motorist coverage . . . with limits of $600,000 and conversion coverage of $600,000," and that she gave "timely notice of her underinsured and conversion coverage underinsured claim." It appears from the plaintiff's pleadings that she purchased from the defendant the underinsured motorist conversion coverage, which is governed by 38a-336a. The parties are bound by their pleadings. Rudder v. Mamanasco Lake Park Ass'n., Inc., 93 Conn.App. 759, 769, 890 A.2d 645 (2006). Furthermore, the exhaustion language in both sections, § 38a-336a(c) and § 38a-336(b), is identical. Therefore for the purposes of this motion to strike only, whether the court applies the exhaustion requirement set forth in § 38a-336a(c) or the exhaustion requirement set forth in § 38a-336(b) would have no bearing on the court's decision. For the foregoing reasons, the court relies on the exhaustion language of General Statutes § 38a-336a in ruling on the present motion.
General Statutes § 14-154a provides in relevant part: "(a) Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner."
Therefore, where a tortfeasor is not an authorized driver under the lease agreement, a lessor is not liable for the damages caused by the tortfeasor. See Schimmelpfennig v. Cutler, 65 Conn.App. 388, 394-95, 783 A.2d 1033 (lessor not liable for damages caused by person driving leased vehicle when lease specifically stated there were to be no additional drivers), cert. denied, 258 Conn. 934, 785 A.2d 230 (2001); see also Blackwell v. Bryant; 45 Conn.App. 26, 31, 692 A.2d 862 (1997) (lessor not liable for damages caused by driver not listed under terms of lease).
In the present case, the plaintiff alleges that Bernacchi is a tortfeasor, that his liability insurance carrier paid her $100,000 and that all bodily liability bonds or insurance policies applicable at the time of the accident have been exhausted. Construing these allegations in the manner most favorable to sustaining their legal sufficiency, it can be inferred that the plaintiff alleges that she exhausted all applicable tortfeasor's liability policies. Additionally, the plaintiff alleges that the owner of the vehicle, American Honda Insurance Company, was not obligated to pay, i.e., was not liable to the plaintiff for the damages caused by the tortfeasor's actions, because the tortfeasor, Bernacchi, was not an authorized driver under the lease agreement. It is necessarily implied in this allegation that the owner's policies were not the policies "applicable at the time of the accident." Therefore, taking the allegations as true, the plaintiff adequately alleged the exhaustion of all applicable liability bonds and policies.
For the foregoing reasons, the court finds that the plaintiff has sufficiently alleged facts to state the claim for the underinsured motorist conversion benefits and, accordingly, the defendant's motion to strike is denied.
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