Guarino v. Allstate Property & Casualty Ins. Co. ( 2015 )

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MICHELLE GUARINO, ADMINISTRATRIX (ESTATE
OF GEORGETTE DUFRESNE) v. ALLSTATE
PROPERTY AND CASUALTY
INSURANCE COMPANY
(SC 19168)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 19, 2014—officially released January 6, 2015
Gerald S. Sack, with whom, on the brief, was Jona-
than A. Cantor, for the appellant (plaintiff).
Joshua O. Balter, for the appellee (defendant).
Opinion
McDONALD, J. The plaintiff, Michelle Guarino,
administratrix of the estate of Georgette Dufresne,
brought this action against the defendant, Allstate Prop-
erty and Casualty Insurance Company, to recover
underinsured motorist benefits after she settled other
actions against two motorists whose negligence she
alleged had caused Dufresne’s death. The issue before
this court is whether, under such circumstances, it is
necessary for a trier of fact to apportion fault and dam-
ages before coverage may be reduced under Dufresne’s
underinsured motorist policy for amounts paid by or
on behalf of the underinsured motorist, or ‘‘anyone
else responsible.’’
The trial court rejected that proposition and rendered
summary judgment in favor of the defendant, conclud-
ing that Dufresne had no underinsured motorist cover-
age available because the plaintiff’s recovery of
settlement payments in an aggregate sum in excess of
the policy’s underinsured motorist coverage reduced
her coverage to zero. The Appellate Court affirmed the
judgment. Guarino v. Allstate Property & Casualty Ins.
Co., 142 Conn. App. 603, 610–13, 67 A.3d 300 (2013). In
her certified appeal to this court, the plaintiff contends
that the Appellate Court improperly failed to apply bind-
ing precedent under which a fact finder must apportion
fault and damages before an insurer’s liability may be
reduced by settlement payments. We conclude that an
underinsured motorist carrier is entitled to judgment
as a matter of law when all alleged tortfeasors settle
the insured’s claims against them for the injuries giving
rise to the underinsured motorist claim in an aggregate
sum in excess of the policy limits. We further conclude
that the apportionment cases on which the plaintiff
relies are inapposite in such circumstances. Accord-
ingly, we affirm the Appellate Court’s judgment.
The issue before us arises in the context of the follow-
ing undisputed facts. Dufresne died as a result of injur-
ies sustained when her automobile was struck by
another vehicle as she proceeded through an intersec-
tion without stopping at a stop sign posted there. The
plaintiff thereafter filed actions, sounding in negligence,
against Anton Paving, LLC (Anton), and Lombardi Tire
and Auto Repair, LLC (Lombardi), the owners of two
vehicles that she claimed had been parked at the side
of the road in a manner that obstructed Dufresne’s view
of the stop sign.
At the time of the collision, Dufresne carried automo-
bile insurance issued by the defendant that included
coverage for bodily injuries caused by underinsured
motorists. Dufresne’s underinsured motorist coverage
limit was $100,000 per person per accident. The policy
contained the following language: ‘‘The limits of this
coverage will be reduced by . . . all amounts paid by
or on behalf of the owner or operator of the uninsured
auto or underinsured auto or anyone else responsible.’’
The plaintiff commenced the present action against
the defendant after she settled the claim against Anton
in return for a payment of $20,000. The plaintiff alleged
that she was entitled to recover underinsured motorist
benefits under Dufresne’s policy because Anton’s negli-
gence had caused Dufresne’s death and because she
had exhausted Anton’s policy for an amount less than
her policy coverage. Pursuant to the defendant’s
request, the pending action against Lombardi was con-
solidated with the plaintiff’s action against the defen-
dant. Thereafter, the plaintiff settled the claims against
Lombardi in return for a payment of $225,000. As part
of that settlement, she executed a release similar to
that signed as part of her settlement with Anton. Neither
release included a stipulation of fault; in fact, both
releases disclaimed liability.
Following Lombardi’s settlement, the defendant filed
a motion for summary judgment, asserting that the
plaintiff was not entitled to underinsured motorist bene-
fits because she had received payments from Anton
and Lombardi in an amount that exceeded Dufresne’s
$100,000 policy limit. The plaintiff opposed the motion,
contending that there would have to be a finding of
fault and an apportionment of damages before there
could be any reduction in coverage for Lombardi’s pay-
ment. The court agreed with the defendant, granted its
motion and rendered judgment in its favor.
The plaintiff appealed to the Appellate Court, which
affirmed the judgment. Guarino v. Allstate Property &
Casualty Ins. Co., supra, 142 Conn. App. 604. The Appel-
late Court first determined that the policy provision
setting forth the coverage limitation conformed in all
material respects to insurance regulations governing
that matter. Id., 608–10. It then determined that this
court’s decision in Buell v. American Universal Ins.
Co., 224 Conn. 766, 621 A.2d 262 (1993), supported the
trial court’s conclusion that the defendant was entitled
to summary judgment under the undisputed facts of
the case. Guarino v. Allstate Property & Casualty Ins.
Co., supra, 610–13.
In her certified appeal to this court, the plaintiff con-
tends that the trial court and the Appellate Court
improperly failed to follow Garcia v. ITT Hartford Ins.
Co., 72 Conn. App. 588, 805 A.2d 779 (2002), which she
characterizes as applying the law set forth in Collins
v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d
899 (2001). She contends that Garcia held that, in a
multitortfeasor context, a set off cannot be had for
money recovered from a settling tortfeasor until a trier
of fact apportions fault and damages. The plaintiff char-
acterizes Garcia as factually and legally indistinguish-
able from the present case and as implicitly recognizing
that Buell was overruled by Collins. Applying Garcia
to her case, the plaintiff contends that, although a reduc-
tion of damages for the $20,000 settlement with Anton
as the underinsured motorist would be proper, it is not
proper or possible to determine whether and to what
extent Lombardi’s settlement may reduce coverage
unless a trier finds that he is ‘‘responsible’’ for
Dufresne’s injuries and apportions damages for Lom-
bardi’s proportionate responsibility.1 We conclude that
the defendant was entitled to summary judgment under
settled legal principles applied in this court’s decisions.
We further conclude that there is no tension between
those cases and the apportionment cases on which the
plaintiff relies.
We first are guided by the underinsured motorist
statutory and regulatory scheme. Under that scheme,
‘‘[a]n insurance company shall be obligated to make
payment to its insured up to the limits of the policy’s
uninsured and underinsured motorist 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 judg-
ments or settlements . . . .’’ (Emphasis added.) Gen-
eral Statutes § 38a-336 (b). ‘‘The limit of the insurer’s
liability may not be less than the applicable limits for
bodily injury liability specified in subsection (a) of sec-
tion 14-112 of the general statutes [currently $20,000],
except that the policy may provide for the reduction
of limits to the extent that damages have been (A) paid
by or on behalf of any person responsible for the injury
. . . .’’ (Emphasis added.) Regs., Conn. State Agencies
§ 38a-334-6 (d) (1) (A); see, e.g., Fahey v. Safeco Ins.
Co. of America, 49 Conn. App. 306, 312, 714 A.2d 686
(1998) (concluding that claimant was not entitled to
recover under policy when trier of fact awarded dam-
ages in amount less than settlement). It is undisputed
that Dufresne’s underinsured motorist policy conforms
to these requirements because it reduces the $100,000
limit of coverage for each person in each accident by
‘‘all amounts paid by or on behalf of the owner or
operator of the . . . underinsured auto or anyone
else responsible.’’
It has often been stated that ‘‘[t]he public policy estab-
lished by the [under]insured motorist statute is that
every insured is entitled to recover for the damages he
or she would have been able to recover if the [under]in-
sured motorist had maintained [an adequate] policy of
liability insurance.’’ (Internal quotation marks omitted.)
Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 27,
699 A.2d 964 (1997); accord Gormbard v. Zurich Ins.
Co., 279 Conn. 808, 819, 904 A.2d 198 (2006); Harvey
v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d
157 (1982). However, ‘‘[t]he statute does not require that
[under]insured motorist coverage be made available
when the insured has been otherwise protected . . . .
Nor does the statute provide that the [under]insured
motorist coverage shall stand as an independent source
of recovery for the insured, or that the coverage limits
shall not be reduced under appropriate circumstances.
The statute merely requires that a certain minimum
level of protection be provided for those insured under
automobile liability insurance policies . . . .’’ (Internal
quotation marks omitted.) Orkney v. Hanover Ins. Co.,
248 Conn. 195, 205, 727 A.2d 700 (1999).
The aforementioned parameters and policies are the
same irrespective of whether there is a single tortfeasor
or multiple tortfeasors. In either case, the claimant is
required to exhaust the policies of only one tortfeasor
in order to recover underinsured benefits. General Acci-
dent Ins. Co. v. Wheeler, 221 Conn. 206, 207, 603 A.2d
385 (1992). This liberal rule, however, does not super-
sede the insurer’s right under the regulation to limit
coverage by any payments received by the claimant in
settlement of claims for an indivisible injury.
The application of that principle is demonstrated by
our decisions in Buell v. American Universal Ins. Co.,
supra, 224 Conn. 766, and Hartford Casualty Ins. Co.
v. Farrish-LeDuc, 275 Conn. 748, 750–51, 882 A.2d 44
(2005) (Hartford Casualty). In Buell, the claimant
received payments in settlement of actions brought
against two motorists that she claimed had caused her
injuries. Buell v. American Universal Ins. Co., supra,
768. The aggregate sum of the settlements was less
than the claimant’s underinsured motorist coverage.
Id., 768–69. Thereafter, the claimant commenced an
arbitration proceeding against her underinsured motor-
ist carrier. Id., 769. Despite the fact that the arbitral
panel found that one of the two motorists was not at
fault; id.; this court held that the panel properly reduced
the insurer’s liability by the aggregate of both settle-
ments. Id., 773–75. The court rejected the claimant’s
contention that the regulation permitting an insurer to
reduce its liability by amounts paid ‘‘by or on behalf of
any party responsible for the injury’’ was inapplicable
to the settlement by the motorist found by the panel
not to be at fault. (Internal quotation marks omitted.)
Id., 773–74. The court reasoned that the liability of the
settling motorists was never formally litigated, as they
were not parties to the arbitration. Id., 774. The court
further reasoned that permitting the reduction of the
insurer’s liability by both motorists’ settlement pay-
ments was supported by the dual legislative intent of
providing a minimum level of protection to underin-
sured motorists while also preventing double recovery
on the part of the insured. Id., 775.
Hartford Casualty followed the rationale of Buell.
In Hartford Casualty, the claimant had $600,000 in
underinsured motorist coverage at the time she was
injured in an accident allegedly caused by two motor-
ists. Hartford Casualty Ins. Co. v. Farrish-LeDuc,
supra, 275 Conn. 751. The claimant’s action against one
motorist was withdrawn after the case settled for a
total payment of $127,835.30. Id., 752. That payment
exhausted that motorist’s insurance policy limits, thus
allowing the claimant to file a claim for underinsured
motorist benefits. Id., 752–53. The claimant’s action
against the second motorist was dismissed because it
had been brought after the statute of limitations
expired. Id., 752. Thereafter, the claimant received a
$656,581 payment in settlement of a legal malpractice
action she brought against the law firm representing
her in the dismissed action. Id., 753. In the arbitration
of her underinsured motorist claim, the claimant and
the insurer agreed that her coverage had been reduced
by the underinsured motorist’s settlement but disagreed
whether the law firm’s settlement also reduced cover-
age. Id. In a subsequent proceeding entertaining
motions to vacate and to confirm the arbitration award,
the parties reserved the question of law to this court
whether the insurer was statutorily entitled to reduce
the limits of the underinsured motorist coverage by the
$656,581 received in settlement of the claimant’s legal
malpractice complaint. Id., 751.
This court characterized the issue as ‘‘essentially dis-
till[ing] to the question of whether that [settlement]
payment constitutes damages ‘paid by or on behalf of
any person responsible for the injury’ within the mean-
ing of [the governing regulation].’’ Id., 758. In answering
that question in the affirmative, the court first deter-
mined that the settlement of the legal malpractice claim
was ‘‘the functional equivalent of a payment from [the
motorist’s] insurance carrier.’’ Id., 760; see id., 759–60
(reasoning that malpractice claim would have required
claimant to prove that she would have recovered dam-
ages in dismissed action and that damages from mal-
practice action were same as those that would have
been recovered against motorist had law firm properly
pursued negligence action). Accordingly, the court con-
cluded that there was ‘‘no logical reason to treat the
payments as distinct for purposes of [the regulation].
It is true, of course, that neither [the law firm] nor its
professional liability insurance carrier was responsible
for the injuries that [the claimant] had sustained as
a result of [the motorist’s] negligent operation of his
vehicle. Nevertheless, [the law firm] essentially con-
ceded, by virtue of its settlement payments, that it
had caused the economic harm that flowed from the
accident. To preclude the [insurer] from reducing the
limits of the [claimant’s] uninsured/underinsured
motorist coverage by the $656,581 in settlement pay-
ments that the [claimant] had received from [the law
firm’s] professional liability insurer would permit the
[claimant] to recover twice for the same element of
damages, a result that is at odds with the ‘time-honored
rule that an injured party is entitled to full recovery
only once for the harm suffered.’ ’’ (Emphasis added.)
Id., 760–61. The court bolstered its conclusion with the
fact that its resolution of the issue was consistent with
its prior interpretation of the uninsured/underinsured
motorist scheme in cases involving third party settle-
ments, specifically discussing the court’s analysis in
Buell. Id., 761–62.
Thus, Buell and Hartford Casualty collectively stand
for two propositions. First, settlement payments
received in exchange for the relinquishment of a claim
for the damages arising from a motor vehicle accident
constitute a permissible reduction of coverage as a pay-
ment ‘‘by or on behalf of any person responsible for
the injury . . . .’’ Regs., Conn. State Agencies § 38a-
334-6 (d) (1) (A). In other words, the meaning of
‘‘responsible’’ includes persons who assume responsi-
bility for the loss by making a voluntary payment. Cf.
Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 741
(‘‘[w]ithout proof of the negligence of a tortfeasor and
without proof of damages from such negligence or an
inference of negligence and damages that prompts the
uninsured motorist carrier to settle, there can never
be a recovery of uninsured motorist benefits’’ [emphasis
added]); Roy v. Centennial Ins. Co., 171 Conn. 463, 466,
370 A.2d 1011 (1976) (parties agreed that underinsured
motorist coverage would be reduced to zero by aggre-
gate settlements from tortfeasors in excess of such
coverage if insurance regulation permitting reduction
of coverage ‘‘by any amount paid on account of the
bodily injury either by the uninsured motorist himself or
by any other person or organization jointly and severally
liable together with the uninsured motorist for the
bodily injury’’ was valid); Waite v. Godfrey, 106 Cal.
App. 3d 760, 768, 163 Cal. Rptr. 881 (1980) (‘‘[a]lthough
there was no special finding of [the hit-and-run driver’s
negligence] made by the trial court, a de facto finding to
that effect was obviously made by . . . [the] plaintiff’s
insurance carrier, as indicated by its payment of $12,000
in settlement of [the] plaintiff’s uninsured motorist
claim’’). The settlement evidences the assumption of
financial responsibility for the injury, even if the settling
party cannot be deemed legally responsible for that
injury by virtue of that payment for other purposes.2
Second, the cases reflect that, in the multitortfeasor
context, coverage is reduced by the aggregate sum of
the settlement payments without any relationship to the
tortfeasors’ proportionate fault in causing the accident.
To the extent that the plaintiff claims that Buell was
overruled sub silentio by our decision eight years later
in Collins v. Colonial Penn Ins. Co., supra, 257 Conn.
718, because the two cases cannot be reconciled, she
is mistaken. We first point out that Hartford Casualty,
which relied on Buell as support, was decided four
years after we issued our decision in Collins. More
fundamentally, Collins is readily distinguishable from
Buell. Collins was a negligence action in which settle-
ment had been reached on behalf of only one of two
tortfeasors. See Collins v. Colonial Penn Ins. Co., supra,
721. The issue in Collins was whether the nonsettling
tortfeasor’s statutory right to apportionment was
impacted by the fact that the claim against the second
tortfeasor, an unidentified hit-and-run motorist, had
been settled by the plaintiff’s uninsured motorist carrier
as a proxy for that motorist. Id. The trial court con-
cluded that, because the plaintiff had settled an unin-
sured motorist claim, the settlement should be treated
as one arising out of a contract action, to which appor-
tionment does not apply. Id., 726. Thus, the trial court
permitted the plaintiff to keep the settlement and to
recover the entire damages award from the nonsettling
tortfeasor. Id. In reversing the trial court’s judgment,
Collins relied on the unremarkable proposition that,
following the legislature’s rejection of joint and several
liability in favor of apportioned liability, a nonsettling
party in a tort action has a statutory right to have the
trier determine his or her proportionate liability. See
id., 727, 729–32 (considering application of General Stat-
utes § 52-572h under plain error doctrine). The court
concluded that apportionment applied irrespective of
the fact that the uninsured motorist carrier had made
the settlement payment because it did so as a surrogate
for the unidentified motorist and therefore should be
viewed as a joint tortfeasor. Id., 743–44; see id., 743
(underscoring significance of fact that insurer was
‘‘brought into the litigation solely to litigate the blame-
worthiness of the unidentified driver’’ [emphasis in orig-
inal]); id., 738, 742 (referring to ‘‘hybrid nature of
uninsured motorist coverage’’ when insured’s liability
is predicated on negligence of ‘‘phantom’’ driver).
Because the case had to be remanded to determine
the nonsettling tortfeasor’s proportionate liability, this
court expressly declined to address the tortfeasor’s
claim that it would violate the rule against double recov-
ery to allow the plaintiff to keep the settlement and
the damages award. Id., 726. Nonetheless, the court
determined that the settlement payment would not
directly bear on the tortfeasor’s proportionate liability
because § 52-572h expressly requires the reduction of
damages by a released person’s percentage of negli-
gence. Id., 734–35.
It is clear from this discussion that whether a tortfea-
sor has a statutory right to pay only his fair share of
damages for injury he or she has caused in part is an
entirely different matter than whether an insurer has
a contractual right to reduce coverage as a result of
payments tortfeasors have made to the claimant. See
Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695
A.2d 1010 (1997) (‘‘The substance of the cause of action
in the first trial was an action in tort; specifically,
whether [the tortfeasor] was liable to the plaintiff for
the negligent operation of his motor vehicle. An action
to recover under an automobile insurance policy, on
the other hand, is not an action in tort but, rather, an
action in contract.’’); Savoie v. Prudential Property &
Casualty Ins. Co., 84 Conn. App. 594, 601–607, 854 A.2d
786 (recognizing distinction for purpose of apportion-
ment), cert. denied, 271 Conn. 932, 859 A.2d 930 (2004);
see also Bovat v. Waterbury, 258 Conn. 574, 601, 783
A.2d 1001 (2001) (‘‘[w]here a joint tortfeasor is entitled
to apportionment, settlements are not deducted dollar
for dollar from the jury verdict’’).
The plaintiff misconstrues the import of two state-
ments in Collins: (1) that ‘‘[a] plaintiff’s settlement with
one tortfeasor in a multitortfeasor context . . . does
not necessarily represent a claimant’s fair, just and rea-
sonable damages but, rather, represents, in part, the
parties’ assessments of the risks of litigation’’; Collins
v. Colonial Penn Ins. Co., supra, 257 Conn. 735; and
(2) that ‘‘the legislature, in enacting §§ 52-572h and 38a-
336, did not intend to create a separate law of damages
for uninsured motorist claims different from that which
exists for traditional negligence awards.’’ Id., 742. Both
statements are correct, but irrelevant to the issue in
the present case, in which all tortfeasors are identified
and have settled the claims against them. Moreover, a
settlement payment may not reflect a full and fair mea-
sure of damages, but it undoubtedly serves a compensa-
tory purpose. See Buell v. American Universal Ins.
Co., supra, 224 Conn. 773 (payment made in settlement
of action against alleged tortfeasor ‘‘served two pur-
poses—to avoid litigation of the claim against [the
alleged tortfeasor] and to compensate [the claimant]
for her bodily injuries’’).
Accordingly, the plaintiff’s reliance on the Appellate
Court’s decision in Garcia, in which the Appellate Court
viewed the issue as a variant of the one presented in
Collins, is similarly misplaced. In Garcia, the claimant
sustained injuries in an accident caused by an identified
motorist and an unidentified hit-and-run motorist. Gar-
cia v. ITT Hartford Ins. Co., supra, 72 Conn. App. 589.
In reverse of the facts in Collins, the known tortfeasor
settled in an amount that exceeded the uninsured
motorist coverage, and the claimant brought an action
against the underinsured motorist carrier as a surrogate
for the unidentified motorist. Id., 589–90. The Appellate
Court recognized that the carrier was ‘‘standing in the
shoes of the unidentified tortfeasor, whom the [claim-
ant] has not settled with in any amount.’’ Id., 600. The
court framed the issue before it as ‘‘whether, in a multi-
ple tortfeasor context, the injured party is precluded
as a matter of law from recovering under an uninsured
motorists policy where she has settled with one tortfea-
sor for an amount greater than the uninsured motorists
coverage against which she is claiming.’’ Id., 594. It
viewed Collins as ‘‘requir[ing], in the multitortfeasor
context, a fact finder to apportion the plaintiff’s dam-
ages and that any setoff apply to only a percentage of
the damages rather than to a dollar for dollar reduc-
tion.’’ Id., 595. The Appellate Court reasoned that the
order in which a party settles or pursues claims should
not dictate different outcomes. Id., 599. Therefore, it
determined that the claimant had a right to have a trier
of fact apportion the percentage of negligence of the
nonsettling party. Id., 598–99.
We construe Garcia as simply treating the uninsured
motorist carrier as if it were the tortfeasor and applying
the rules of apportionment that apply in the multitort-
feasor context. Although the Appellate Court implicitly
questioned whether Collins might impact this court’s
earlier holding in Buell, it nonetheless recognized that
the cases were inapposite. Id., 600. Indeed, in a subse-
quent case decided by a panel comprised of two of the
three members of the panel in Garcia, the Appellate
Court expressly recognized that the apportionment
analysis in Garcia had no bearing on a case in which
a claimant seeks underinsured motorist benefits after
all tortfeasors have settled. See Savoie v. Prudential
Property & Casualty Ins. Co., supra, 84 Conn. App.
601–607 (holding that recovery barred when payments
from multiple tortfeasors exceeded coverage).3
Ultimately, the plaintiff has confused her right to
recover damages with the right to recover the minimum
guaranteed by underinsured motorist coverage. When
the plaintiff settled her claims with both tortfeasors,
she necessarily relinquished her right to recover dam-
ages. All that was left was her right to recover insurance
benefits, if any coverage remained after a reduction for
the settlement payments. To the extent that the plaintiff
complains that she has not been fairly compensated for
the tortfeasors’ negligence, any such deficiency arises
by virtue of her tactical decision to settle both claims
and the resources of the tortfeasors. With respect to
insurance benefits, the plaintiff has gotten exactly what
Dufresne bargained for—a guarantee that she could
recover up to $100,000 for an injury or death resulting
from an accident caused in whole or in part by an
underinsured motorist. Neither the regulatory scheme
nor her policy required more.4
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The plaintiff does not explain why her coverage can be reduced by her
settlement payment from Anton without a finding of fault and proportionate
responsibility, whereas her settlement payment from Lombardi cannot. It is
unclear, therefore, whether she makes this distinction because her complaint
alleges negligence only by Anton or because she construes the policy limita-
tion and the related regulation as requiring proof of responsibility only as
to someone other than the underinsured motorist. In any event, we conclude
that this distinction is not material to our analysis. To the extent, however,
that the plaintiff’s claim is predicated on the notion that there is a separate
limit of underinsured motorist liability for each tortfeasor, the discussion
that follows indicates that the authority is to the contrary.
2
We note that, in Todd v. Nationwide Mutual Ins. Co., 121 Conn. App.
597, 604, 999 A.2d 761, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010),
the Appellate Court concluded that the claimant’s acceptance of a settlement
payment from a party alleged to be responsible for the tortfeasor’s liability
did not, as a matter of law, establish that party’s liability to the claimant
for purposes of the claimant’s recovery under her own underinsured motorist
conversion coverage. Assuming, without deciding, that this determination
is correct, we find Todd distinguishable from the matter before us. In Todd,
the question was whether the claimant had satisfied the statutorily mandated
precondition to coverage, namely, exhaustion of all insurance policies appli-
cable at the time of the accident. Id., 600–601. In the present case, the issue
is not whether the plaintiff is entitled to bring an underinsured motorist
action, but whether her coverage in such an action is reduced by settlement
payments. The latter implicates the well settled rule barring double recovery;
see Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 22 and n.6; a
concern not implicated in Todd. Indeed, Todd makes no mention of Savoie
v. Prudential Property & Casualty Ins. Co., 84 Conn. App. 594, 601–607,
854 A.2d 786, cert. denied, 271 Conn. 932, 859 A.2d 930 (2004), which held
that settlements are payments made by a person ‘‘responsible for the injury’’
within the meaning of § 38a-334-6 (d) (1) of the Regulations of Connecticut
State Agencies.
3
A treatise often cited by this court has criticized Garcia for failing to
clearly distinguish between a reduction of policy limits (the issue in the
present case) and a reduction of damages, and has suggested that ‘‘Savoie
emasculated, if not overruled, the import of Garcia in the context wherein
reduction of policy limits (not damages) is sought.’’ J. Berk & M. Jainchill,
Connecticut Law of Uninsured and Underinsured Motorist Coverage (4th
Ed. 2010) § 4.9.D, pp. 468–70 n.100. We have no occasion in the present
case to clarify or otherwise comment on the merits of Garcia’s reasoning,
as we are not confronted with an unidentified motorist on whose behalf no
settlement has been reached.
4
This court previously held that an underinsured motorist carrier was
not bound by the liability and damages determination obtained by its insured
in an action against the tortfeasor. See Mazziotti v. Allstate Ins. Co., supra,
240 Conn. 810–19 (determining that doctrine of collateral estoppel did not
apply). Nothing in this opinion should be construed to indicate anything to
the contrary.