Russbach v. Yanez-Ventura ( 2022 )

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DANIEL RUSSBACH v. MARISOL
YANEZ-VENTURA ET AL.
(AC 44232)
Elgo, Alexander and Suarez, Js.
Syllabus
The plaintiff R, who sustained injuries after he was injured in a motor vehicle
collision involving an uninsured motorist, sought to recover uninsured
motorist benefits allegedly due under an automobile insurance policy
issued by the defendant W Co. At the time of the accident, R was
operating a vehicle owned by a car dealership and covered by a commer-
cial garage insurance policy issued by W Co. The trial court granted W
Co.’s motion to bifurcate the issues of the insurance coverage limits
and damages. A bifurcated trial before the court followed, limited to
the issue of uninsured motorist coverage provided by the policy. During
the trial, the sole witness, B, the owner of the dealership, testified
credibly that he did not have education or formal training on risk loss
and insurance purchasing but wanted to have the minimum amounts
of uninsured motorist coverage required by state law as the dealership
was not in the business of loaning or renting cars. B consulted with an
insurance professional, C, to provide him advice, which he considered
in determining the scope of coverage for the dealership. B attested that
he received a waiver form from C, which listed $100,000 in uninsured
motorist coverage, reviewed it, knowingly approved his selection, and
signed his name on the last page of the form and sent it back to C. In
its memorandum of decision, the court determined, inter alia, that the
dealership, the only named insured on the policy, knowingly made an
informed decision to reduce the uninsured motorist coverage from $1
million, the amount of liability coverage under the policy, to $100,000
on the waiver form, and, although the waiver form did not contain a
statement of premium costs for each of the uninsured motorist coverage
options available as required pursuant to the applicable statute (§ 38a-
336 (a) (2)), which permits the named insured to request a lesser amount
of uninsured motorist coverage in writing, such noncompliance was
excused because the policy was for a commercial garage. Thereafter,
R moved for an articulation, which the court granted. The court expressly
indicated that it had determined, based on B’s testimony at trial that
the dealership had knowingly selected $100,000 in standard, rather than
conversion, uninsured motorist coverage. Subsequently, W Co. filed a
motion for summary judgment on the remaining issue of damages, claim-
ing that it was entitled to judgment as a matter of law because R had
received workers’ compensation benefits in excess of $100,000, which
offset the $100,000 in uninsured motorist coverage under the policy.
The court granted W Co.’s motion for summary judgment and rendered
judgment in its favor. Thereafter, following R’s death, the court granted
the motion to substitute the coadministrators of R’s estate as plaintiffs.
Subsequently, the substitute plaintiffs appealed from the judgment of
the trial court, claiming that the court improperly concluded that W
Co.’s failure to comply with the statutory requirements of § 38a-336 (a)
(2) was excused under the particular facts of this case and improperly
concluded that the policy in question provided for standard, rather than
conversion, insurance coverage. On the substitute plaintiffs’ appeal to
this court, held:
1. The trial court improperly concluded that W Co.’s failure to comply with
the statutory requirements of § 38a-336 (a) (2) was excused: contrary
to W Co.’s contention that Frantz v. United States Fleet Leasing, Inc.
(245 Conn. 727), Kinsey v. Pacific Employers Ins. Co. (277 Conn. 398),
and McDonald v. National Union Fire Ins. Co. of Pittsburgh, PA (79
Conn. App. 800), created an exception for every case involving a commer-
cial fleet or garage insurance policy, those cases recognized a limited
exception to the statutory requirements of § 38a-336 (a) (2) that were
fact-specific and predicated on several factors that distinguished com-
mercial entities from typical purchasers of insurance, including that the
policies involved a large commercial entity with departments specializ-
ing in legal and insurance matters, were procured by insurance special-
ists who were fully aware of the relative cost of uninsured motorist
coverage, and covered a mass fleet of automobiles used to conduct
large-scale commercial activities, the unreasonable and impracticable
result of requiring strict adherence to the statutory requirements when
there were numerous named insureds on the policy, whether the com-
mercial entity was self-insured, and the premium amounts paid, and
the present case differed from Frantz, Kinsey, and McDonald, as the
dealership was not a large commercial entity, it was a local business
involved in repair and used car sales with only ten to twenty vehicles
for sale at that time that remained primarily on the dealership property,
it was not self-insured, its annual insurance premium was far less than
the premiums paid by large commercial entities, and the dealership was
the only named insured on the policy; moreover, B, who was responsible
for procuring insurance for the dealership, had no education or formal
training on risk loss and insurance purchasing and was not aware of
the availability, relative costs, and benefits of uninsured motorist cover-
age and, therefore, relied largely on C to advise him, which was further
demonstrated by his testimony that he requested the minimum amount of
uninsured motorist coverage required by state law from C but procured
$100,000 in uninsured motorist coverage—more than double the $40,000
required by state law; accordingly, because the dealership’s uninsured
motorist coverage was not effectively reduced pursuant to § 38a-336 (a)
(2), summary judgment should not have been granted as a triable issue
remained as to the amount of damages, as the $1 million liability coverage
under the policy exceeded the workers’ compensation benefits that
R received.
2. The trial court properly determined that the policy provided for standard,
rather than conversion, uninsured motorist insurance coverage: the pol-
icy was ambiguous as to whether it provided standard or conversion
uninsured motorist insurance coverage, and, because the issue of
whether the dealership purchased standard or conversion coverage pre-
sented a question of historical fact, rather than one of contract construc-
tion, an examination of extrinsic evidence determined the parties’ inten-
tions, B’s testimony at trial having undermined R’s claim that the
dealership intended to purchase enhanced coverage for an additional
premium, as B testified that he wanted to have the minimum amount
of insurance coverage required by state law and that he did not know
what conversion coverage was and never asked C about it; moreover, this
court declined to incorporate by reference language from the preprinted
waiver form, which provided that the policy would be issued with the
highest level of coverage selected if more than one coverage option was
selected, because, as this court determined, the waiver form was an
ineffective attempt to reduce the uninsured motorist coverage under
the policy and the uncontroverted evidence in the record demonstrated
that B did not select any of the boxes for a specific coverage option
and did not intend to purchase conversion coverage for the dealership.
Argued January 18—officially released June 7, 2022
Procedural History
Action to recover, inter alia, uninsured motorist bene-
fits allegedly due under an automobile policy issued by
the defendant Wesco Insurance Company, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven, where the court, Abrams, J.,
granted the defendant Wesco Insurance Company’s
motion to bifurcate the issues of insurance coverage
limits and damages; thereafter, the matter was tried
to the court, Ozalis, J., on the issue of the insurance
coverage limits; judgment for the defendant Wesco
Insurance Company; subsequently, the court, Abrams,
J., granted the defendant Wesco Insurance Company’s
motion for summary judgment on the issue of damages;
thereafter, Kristina Bakes, coadministrator of the estate
of Daniel Russbach, et al. was substituted as the plain-
tiff; subsequently, the substitute plaintiffs appealed to
this court. Reversed in part; further proceedings.
Chet L. Jackson, for the appellants (substitute plain-
tiffs).
John W. Cannavino, Jr., with whom, on the brief,
was Ryan T. Daly, for the appellee (defendant Wesco
Insurance Company).
Opinion
ELGO, J. In this insurance coverage dispute, the sub-
stitute plaintiffs, Kristina Bakes and Marlene Esposito,
coadministrators of the estate of Daniel Russbach
(decedent),1 appeal from the judgment of the trial court
in favor of the defendant Wesco Insurance Company.2
On appeal, the plaintiffs contend that the court improp-
erly concluded that (1) the defendant’s failure to comply
with the statutory requirements of General Statutes
§ 38a-336 (a) (2) was excused under the particular facts
of this case and (2) the insurance policy in question
provided for standard, rather than conversion, insur-
ance coverage.3 We affirm in part and reverse in part
the judgment of the trial court.
The facts of the underlying automobile accident are
not in dispute. On October 26, 2015, the decedent was
operating a vehicle in New Haven owned by West Shore
Motors (dealership), a used car dealership and repair
center in Milford. As the decedent proceeded through a
green light, Marisol Yanez-Ventura, an uninsured driver,
negligently turned her vehicle into the decedent’s lane
of traffic, causing a head-on collision that resulted in
catastrophic injuries to the decedent.
The decedent thereafter commenced the present
action. Relevant to this appeal is the third count of his
complaint,4 which alleged that the vehicle driven by
the decedent on October 26, 2015, was insured by the
defendant under policy number WPP12545600 (policy).
The complaint further alleged that the policy provided
$1 million in uninsured motorist coverage.5 In its
answer, the defendant denied the substance of the latter
allegation. The defendant also alleged, as special
defenses, that any recovery obtained by the decedent
must be reduced by all sums received from collateral
sources and that such recovery ‘‘is limited to the appli-
cable limits of the [policy], namely, $100,000 minus all
applicable credits, reductions and offsets.’’
On June 20, 2017, the defendant filed a motion to
bifurcate the issue of the insurance coverage limits and
the issue of damages, which the court granted. A bifur-
cated trial before the court followed, limited to the issue
of the extent of uninsured motorist coverage under the
policy. The sole witness at trial was Jason Kenneth
Blake, who owned the dealership at all relevant times,
and whose testimony the court ultimately found credi-
ble. Blake offered uncontroverted testimony that he
was solely responsible for procuring and ‘‘making deci-
sions as to insurance coverage’’ for the dealership.
Blake also testified that he did not have ‘‘any education
or formal training on risk loss and insurance purchas-
ing.’’
Blake testified that the dealership was ‘‘not in the
business of loaning cars’’ and that the dealership had
only ‘‘ten [or] twenty’’ cars for sale in the fall of 2015.
Blake explained that ‘‘the majority of [the dealership’s]
business was done on the property’’ and ‘‘operated more
off our lot, even though we did [allow] test drives on
cars . . . we really weren’t in the business of doing
loaner cars. Occasionally we did, and, so I didn’t think
we needed a whole lot of [insurance] coverage for that
area.’’ Because the dealership was not in the business
of loaning or renting cars, Blake testified that he
‘‘wanted to have the minimum amounts [of uninsured
motorist coverage] required by the state of Connecti-
cut.’’
Blake testified that, in procuring insurance coverage
for the dealership, he consulted with Mike Castellini of
McCormick Insurance Agency, an agency located in
New Jersey. The policy obtained by the dealership, a
copy of which was admitted into evidence at trial, was
a commercial garage policy that provided $1 million in
liability coverage. The only named insured on the policy
was the dealership.
Also admitted into evidence was a copy of a docu-
ment titled ‘‘Connecticut Uninsured/Underinsured
Motorists Coverage Selection and Informed Consent
Form’’ (waiver form) signed by Blake on April 23, 2015.6
It is undisputed that the waiver form did not specify
the amount of liability coverage provided by the policy.
The waiver form also did not disclose the premium costs
for any of the eighty-two uninsured motorist coverage
options listed on pages three and four of that form as
required by § 38a-336 (a) (2); the area designated for
the ‘‘Total Coverage Premium’’ for each of those options
on the form was left blank, as Blake admitted at trial.7
Nonetheless, a handwritten check mark appeared next
to the $100,000 ‘‘Combined Single Limit’’ options on the
form, and Blake testified that ‘‘$100,000 was what was
required [under Connecticut law] and that’s what I
wanted.’’ As Blake explained, he ‘‘wanted the minimum
amount of insurance for uninsured motorist’’ coverage
available. Blake also testified that neither the writing
on page one of the waiver form—which listed the name
of the applicant, the policy’s effective date, and the
producer of the policy—nor the check marks on certain
boxes were made by him.8 Rather, he testified that the
only writing on the waiver form that was his was the
signature on page four.
In its January 30, 2018 memorandum of decision, the
court found that Blake ‘‘was the person responsible for
purchasing insurance for [the dealership] in 2015. Blake
testified credibly that he consulted with an insurance
professional to provide him advice, which he consid-
ered in determining the scope of insurance coverage
for the business. Blake wanted low cost insurance and
the lowest possible [uninsured motorist] coverage that
was allowed and made the decision to obtain less [unin-
sured motorist] coverage than the bodily liability limits.
Blake credibly testified at trial that he received the
waiver form which his insurance agent asked him to
review, reviewed it, knowingly approved his selection
and sent it back to the agent. . . . The waiver form
lists $100,000 in [uninsured motorist] coverage. . . .
This court further finds Blake’s testimony to be credible
as to the procurement of this commercial automobile
insurance policy and his desire to have the lowest possi-
ble [uninsured motorist] coverage for such vehicles.
Blake was credible as to his review and understanding
of the waiver form and his knowing selection of the
lower $100,000 [uninsured motorist] coverage.’’ (Cita-
tions omitted; emphasis added.) The court thus con-
cluded that the dealership ‘‘knowingly made an
informed decision to reduce the [uninsured motorist]
coverage to $100,000 from the $1,000,000 bodily injury
liability coverage and that the . . . coverage was prop-
erly reduced to $100,000.’’9 Although it found that the
waiver form ‘‘did not contain a statement of premium
costs,’’ the court concluded that such noncompliance
with the statutory requirements of § 38a-336 (a) (2) was
excused because the policy was for a commercial
garage.
The decedent thereafter filed a motion for articula-
tion, in which he sought clarification as to whether the
court had found that the dealership ‘‘knowingly selected
$100,000 in standard [uninsured motorist] coverage or
$100,000 in conversion . . . coverage’’ and the factual
basis for that determination. The court granted that
motion and, in its April 13, 2018 articulation, expressly
indicated that the dealership had knowingly selected
$100,000 in standard uninsured motorist coverage. The
court further stated that the factual basis for that deter-
mination was Blake’s testimony at trial that he had
selected a policy for $100,000 ‘‘with standard uninsured
motorist coverage . . . and . . . that’s what I under-
stood this to mean. . . . I was picking the $100,000
limit for uninsured motorist.’’
On February 8, 2019, the defendant filed a motion
for summary judgment on the remaining issue of dam-
ages. The defendant argued that no genuine issue of
material fact existed in light of the court’s determination
that the policy contained $100,000 in uninsured motorist
coverage. Because the decedent had received workers’
compensation benefits in excess of $100,000,10 which
operate as an offset to the uninsured motorist coverage
under the policy, the defendant claimed that it was
entitled to judgment as a matter of law.11 In opposing
the motion for summary judgment, the decedent
claimed that a genuine issue of material fact existed as
to whether the waiver form signed by Blake was valid.
In its August 11, 2020 memorandum of decision, the
court first noted the undisputed fact that the decedent
had received $292,540.06 in workers’ compensation
benefits, which ‘‘offset the $100,000 in coverage’’ under
the policy. The court then rejected the decedent’s chal-
lenge to the validity of the waiver form. The court thus
rendered summary judgment in favor of the defendant,
and this appeal followed.
On appeal, the plaintiffs raise two claims related to
the court’s determinations following the bifurcated
trial, as set forth in its January 30, 2018 memorandum
of decision and its April 13, 2018 articulation, on the
extent of uninsured motorist coverage under the policy.
We address each claim in turn.
I
The plaintiffs first contend that the court improperly
concluded that the defendant’s failure to comply with
the statutory requirements of § 38a-336 (a) (2) was
excused. The issue we must decide is whether, as a
matter of law, the construction of § 38a-336 (a) (2)
articulated by our Supreme Court in Frantz v. United
States Fleet Leasing, Inc., 245 Conn. 727, 738–43, 714
A.2d 1222 (1998), applies to the uncontroverted factual
scenario presented by this case. Our review, therefore,
is plenary. Id., 736.
Section 38a-336 (a) (1) (A), the Connecticut unin-
sured motorist statute, requires in relevant part that
‘‘[e]ach automobile liability insurance policy shall pro-
vide insurance, herein called uninsured and underin-
sured motorist coverage, in accordance with the regula-
tions adopted pursuant to section 38a-334 . . . for the
protection of persons insured thereunder who are
legally entitled to recover damages because of bodily
injury, including death resulting therefrom . . . .’’ As
our Supreme Court has explained, ‘‘[t]he public policy
established by the uninsured motorist statute is to
ensure that an insured recovers damages he or she
would have been able to recover if the uninsured motor-
ist had maintained a policy of liability insurance.’’
Sandor v. New Hampshire Ins. Co., 241 Conn. 792,
800, 699 A.2d 96 (1997); see also Doyle v. Metropolitan
Property & Casualty Ins. Co., 252 Conn. 79, 84, 743
A.2d 156 (1999) (‘‘the purpose of underinsured motorist
coverage is to protect the named insured and other
additional insureds from suffering an inadequately com-
pensated injury caused by an accident with an inade-
quately insured automobile’’ (internal quotation marks
omitted)). In light of ‘‘the broad, remedial purpose of
the uninsured motorist statute . . . [our Supreme
Court has] stated that an insurer may [not] circumvent
th[at] public policy . . . .’’ (Citation omitted; internal
quotation marks omitted.) Tannone v. Amica Mutual
Ins. Co., 329 Conn. 665, 673, 189 A.3d 99 (2018).
At issue in this appeal is subdivision (2) of § 38a-336
(a). That subdivision begins by requiring in relevant
part that ‘‘each automobile liability insurance policy
. . . shall provide uninsured and underinsured motor-
ist coverage with limits for bodily injury and death equal
to those purchased to protect against loss resulting
from the liability imposed by law . . . .’’12 (Emphasis
added.) General Statutes § 38a-336 (a) (2). It then quali-
fies that requirement by permitting a ‘‘named insured’’
to request ‘‘a lesser amount’’ in writing. General Statutes
§ 38a-336 (a) (2). Significantly, the statute mandates
that ‘‘[n]o such written request for a lesser amount shall
be effective unless any named insured has signed an
informed consent form that shall contain: (A) An expla-
nation of uninsured and underinsured motorist insur-
ance approved by the commissioner; (B) a list of unin-
sured and underinsured motorist coverage options
available from the insurer; and (C) the premium cost
for each of the coverage options available from the
insurer . . . .’’ (Emphasis added.) General Statutes
§ 38a-336 (a) (2). Because the plain purpose of such a
form is to apprise a purchaser of insurance of that
information, the burden necessarily is on the insuring
party to provide the information specified in § 38a-336
(a) (2) to the purchaser.
In Nationwide Mutual Ins. Co. v. Pasion, 219 Conn.
764, 594 A.2d 468 (1991), our Supreme Court considered
the efficacy of a written request to reduce uninsured
motorist coverage pursuant to General Statutes (Rev.
to 1989) § 38-175c (a) (2), the precursor to § 38a-336
(a) (2).13 The main issue in that appeal was ‘‘whether
a written request to reduce uninsured motorist coverage
by one of two named insureds on an automobile liability
insurance policy is sufficient to satisfy the writing
required’’ under that statute. Id., 765. Although there
were two named insureds on the policy in question, a
husband and wife, only the husband had signed the
request to reduce uninsured motorist coverage. Id., 766.
The court first concluded that the statutory language
in question was ambiguous because, as applied to the
facts of that case, it was unclear whether the term
‘‘insured’’ referred to any named insured or to all named
insureds. Id., 769. The court then reviewed the legisla-
tive history of the statute and concluded: ‘‘The apparent
intent of the legislature . . . was to assure that con-
sumers purchasing automobile liability insurance
would be made aware of the low cost of equal amounts
of uninsured coverage by requiring any reduction in
that coverage to be in writing. . . . [T]o construe the
term ‘insured’ . . . as [the plaintiff insurance com-
pany] urges would thwart the intent of the legislature.
. . . To permit the signature of one named insured to
bind other, possibly uninformed, named insureds would
circumvent the legislature’s intent that the decision to
reduce uninsured motorist coverage by consumers be
an informed one.’’ (Citations omitted.) Id., 770–71.
Accordingly, the court held that the written request to
reduce uninsured motorist coverage ‘‘was ineffective
to reduce the uninsured motorist benefits available to
a third party who had been injured in an accident while
a passenger in a vehicle covered under the policy.’’
Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 712,
714 A.2d 1209 (1998), citing Nationwide Mutual Ins.
Co. v. Pasion, supra, 771.
Seven years later, the Supreme Court considered a
similar claim in a completely different context. As the
court stated, the ‘‘issue that we must decide is whether,
as a matter of law, the construction of [the precursor
to § 38a-336 (a) (2)] that we articulated in [Pasion]
applies to the different factual scenario presented by
this case.’’ Frantz v. United States Fleet Leasing, Inc.,
supra, 245 Conn. 736. Frantz involved a lease agreement
between United States Fleet Leasing, Inc. (Fleet Leas-
ing), which owned a fleet of passenger vehicles, and
General Dynamics Corporation (General Dynamics).
Id., 730. As the court emphasized early in its opinion,
‘‘[b]oth Fleet Leasing and General Dynamics are large
corporations with their own legal and risk management
departments.’’ Id., 730 n.6.
On September 11, 1992, one of the vehicles owned
by Fleet Leasing and leased by General Dynamics was
involved in an accident. Id., 730. That vehicle ‘‘was
insured under an automobile liability insurance policy
that had been issued by the defendant [insurance com-
pany] to General Dynamics.’’ Id. That policy ‘‘covered
approximately 2208 private passenger vehicles that
were either owned or leased by General Dynamics and
that were located in various states’’ and ‘‘provided liabil-
ity coverage of $2 million per accident . . . .’’ Id., 731.
Under the policy, ‘‘[t]he term ‘named insured’ . . .
include[d], subject to certain limitations, various sub-
sidiaries, affiliates and joint ventures of General Dynam-
ics, the United States of America and ‘any other person
or organization for which [General Dynamics] has
agreed in writing to provide insurance . . . .’ ’’ Id., 732.
In procuring that policy, a representative of General
Dynamics had submitted a written request to reduce
its uninsured motorist coverage to $40,000 per accident.
Id., 731, 733.
The plaintiffs, all employees of General Dynamics
who were injured in the September 11, 1992 accident,
subsequently brought suit against Fleet Leasing and
the insurance company to recover uninsured motorist
benefits under the fleet insurance policy issued to Gen-
eral Dynamics. Id., 733. They later moved for summary
judgment, relying principally on the precedent set in
Pasion and arguing that ‘‘General Dynamics’ election
of lower uninsured motorist coverage was invalid
because it had not been signed by Fleet Leasing, a
named insured . . . .’’ Id., 733–34. The trial court
granted that motion, concluding that ‘‘the plaintiffs
were entitled to uninsured motorist coverage of $2 mil-
lion under [the Supreme Court’s] decision in Pasion
because Fleet Leasing, a named insured, had failed to
submit a written request for a reduction in [uninsured
motorist] coverage . . . .’’ Id., 734.
On appeal, the defendants claimed that ‘‘the factual
differences between Pasion and the present case war-
rant a different application of § 38a-336 (a) (2). Specifi-
cally, they argue[d] that the policy considerations
underlying the enactment of § 38a-336 (a) (2) that
formed the basis of [the] holding in Pasion are inappli-
cable in the context of commercial fleet insurance. They
claim[ed], moreover, that to construe that statutory pro-
vision to require the written consent of all named
insureds on a commercial fleet policy would place an
unreasonable and unintended burden on insurers
because, as in this case, the number of prospective
insureds under a fleet policy is likely to be substantial.’’
Id., 738.
The Supreme Court agreed with the defendants and
articulated a narrow exception to the statutory require-
ments of § 38a-336 (a) (2). Applying well established
principles of statutory construction, the court con-
cluded that ‘‘the legislature did not intend to require the
written consent of all named insureds on a commercial
fleet policy as a necessary prerequisite to a reduction
in coverage. First, we are not persuaded that requiring
Fleet Leasing to provide a written request for a reduc-
tion in uninsured motorist coverage under the [insur-
ance] policy would further the legislative goal of ensur-
ing that consumers are informed of the relative cost of
this type of insurance. Although a corporation like Fleet
Leasing may be considered a ‘consumer’ of insurance
in the broadest sense of that word, we do not believe
that a company that, like Fleet Leasing, is covered under
a commercial fleet policy, falls within the class of con-
sumers that the legislature sought to protect in requiring
the signature of all named insureds under § 38a-336 (a)
(2). Fleet Leasing, like many other large corporations
covered under commercial fleet policies, has depart-
ments that specialize in legal and insurance matters. It is
highly likely, therefore, that the Fleet Leasing personnel
who negotiated the insurance provisions of the lease
contract with General Dynamics were fully aware of
the relative cost of uninsured motorist coverage and
the implications of their decision to leave to General
Dynamics the determination of the amount of uninsured
motorist coverage.’’ (Emphasis added.) Id., 738–39.
The court also noted that ‘‘the primary legislative
purpose in requiring a written request for a reduction
in uninsured motorist coverage is to ensure that one
named insured not be bound, to his or her detriment,
by the unilateral decision of another named insured to
seek such a reduction. . . . Furthermore, strict adher-
ence in this case to the rule that we deemed applicable
in Pasion would have required the written consent not
only of Fleet Leasing, but of all other named insureds
on the policy, a result that is both unreasonable and
impracticable. Under the terms of the endorsement to
the policy, ‘named insured’ includes any other person
or organization for which General Dynamics had agreed
in writing to provide insurance and, subject to certain
limitations, the United States of America and various
joint ventures of General Dynamics, as well as partners,
executive officers and directors of those joint ventures.
. . . Identifying all such persons and entities and secur-
ing their written consent to a reduction in uninsured
motorist coverage would have created formidable
administrative burdens for General Dynamics or its
insurance underwriter, burdens that we believe it is
most unlikely our legislature intended to impose under
§ 38a-336 (a) (2).’’ (Citations omitted.) Id., 739–40. For
those reasons, the court concluded that the holding of
Pasion was inapplicable to such fleet insurance poli-
cies. Id., 740.
Our appellate courts have applied the narrow excep-
tion articulated in Frantz on two occasions. In McDon-
ald v. National Union Fire Ins. Co. of Pittsburgh, PA,
79 Conn. App. 800, 801–802, 831 A.2d 310, cert. denied,
266 Conn. 929, 837 A.2d 802 (2003), one of the plaintiffs
was injured in an automobile accident while operating
a car owned by her employer, Cumberland Farms, Inc.,
that was insured under a fleet insurance policy issued
by the defendant. The plaintiff sought to collect underin-
sured motorist benefits pursuant to that policy, claiming
that ‘‘the attempt by Cumberland Farms, Inc., to reduce
the underinsured motorists policy limit . . . was inef-
fective because the informed consent form signed by
Cumberland Farms, Inc., did not comply with the
requirements of § 38a-336 (a) (2). Specifically, the plain-
tiffs argue[d] that the form signed by Cumberland
Farms, Inc., did not ‘contain . . . the premium cost for
each of the coverage options available from the insurer,’
as required by § 38a-336 (a) (2) (C).’’ Id., 804.
On appeal, this court agreed with the trial court’s
determination that Cumberland Farms, Inc., had effec-
tively reduced the limit of underinsured motorist cover-
age under the policy. Id., 805. The court began by noting
that ‘‘[o]ne of the guiding principles underlying the
requirement of a written rejection of higher limits is to
assure that the rejection is the product of a ‘purposeful
and knowing decision’ . . . and that the request is an
‘informed one.’ ’’ (Citation omitted.) Id., 805. The court
then reviewed Frantz in detail and reiterated that ‘‘large
corporations covered under commercial fleet policies
[have] departments that specialize in legal and insur-
ance matters’’ whose ‘‘personnel . . . were fully aware
of the relative cost of uninsured motorist coverage and
the implications of their decision . . . .’’ (Internal quo-
tation marks omitted.) Id., 806. The court also observed
that § 38a-336 (a) (2) ‘‘has been interpreted to impose
lesser requirements on self-insurers.’’ Id.
This court then concluded that the reasoning of
Frantz ‘‘dictates the resolution of the issue in the plain-
tiffs’ appeal. Cumberland Farms, Inc., is a large commer-
cial entity. Its insurance premiums range from $127,459
to $518,207. Here, as in Frantz, [i]t is highly likely . . .
that the . . . personnel who negotiated the insurance
provisions of the [insurance] contract . . . were fully
aware of the relative cost of uninsured motorist cover-
age and the implications of their decision . . . .’’ (Inter-
nal quotation marks omitted.) Id., 807. The court contin-
ued: ‘‘The purpose of § 38a-336 (a) (2), including the
provision requiring that insurers inform consumers of
the premium cost for each of the underinsured motor-
ists coverage options available, is to facilitate consum-
ers’ decision-making process and to ensure that they
give informed consent to reduced coverage. We do not
believe that a company such as Cumberland Farms,
Inc., which insures a fleet of vehicles to carry on a
large commercial enterprise, falls within the class of
consumers that the legislature sought to protect when
it mandated the disclosure of premium costs under
§ 38a-336 (a) (2). Consequently, the fact that the
informed consent form in the present case did not con-
tain a statement of premium costs does not defeat the
election by Cumberland Farms, Inc., to reduce its under-
insured motorists coverage limits . . . .’’ (Emphasis
added.) Id.
The Supreme Court reached a similar result in Kinsey
v. Pacific Employers Ins. Co., 277 Conn. 398, 891 A.2d
959 (2006). The issue in that case was whether a written
request to reduce uninsured motorist coverage under
a fleet insurance policy was effective when ‘‘certain
language in the [written] . . . request was [not] made
. . . in twelve-point type as required by . . . § 38a-336
(a) (2).’’ Id., 400. The plaintiff, ‘‘who was operating a
vehicle owned by his employer and insured under a
commercial fleet automobile insurance policy issued
by the defendant, sustained injuries that were caused by
an underinsured motorist.’’ Id. As the court emphasized,
the plaintiff’s employer was ‘‘a corporation with over
2700 employees’’ that ‘‘was insured under a commercial
fleet automobile insurance policy issued . . . by the
defendant. More than 1000 vehicles were covered under
the policy.’’ Id., 402.
Although the policy contained $1 million in liability
coverage, the defendant claimed that ‘‘the total amount
of underinsured motorist coverage available under [the]
policy was $40,000 . . . . The defendant [claimed]
. . . that, prior to the date of the accident in which the
plaintiff was injured, [the employer] had submitted to
the defendant an ‘Informed Consent Form,’ signed by
[its] vice president of risk, requesting that its uninsured
and underinsured motorist coverage limit be reduced to
$40,000.’’ Id., 402. In response, the plaintiff ‘‘maintained
that the request was ineffective because the informed
consent form . . . did not comply with § 38a-336 (a)
(2). In particular, § 38a-336 (a) (2) requires the inclusion
of certain language, in the form of a heading in twelve-
point type, on the informed consent form; it is undis-
puted that the form that [the employer] had submitted
contained the required language, albeit in eight-point
type rather than twelve-point type.’’ (Footnote omitted.)
Id., 403.
In rejecting the plaintiff’s claim, the court in Kinsey
relied on the precedent set forth in Frantz and McDon-
ald. After discussing those cases in detail, our Supreme
Court stated: ‘‘We reach the same result in the present
case. For the reasons enumerated in Frantz and
McDonald, there is no reason to require strict adherence
to the twelve-point type requirement of § 38a-336 (a)
(2) in the context of a commercial fleet policy. . . .
[The employer], which had more than 2700 employees
and was insured under a commercial fleet policy cov-
ering more than 1000 vehicles, is not a member of the
class of consumers that the legislature sought to protect
when it enacted that typeface requirement. . . . [The
employer’s] vice president of risk, who signed the
informed consent form on behalf of [the employer],
attested to the fact that when she endorsed the form,
she was ‘fully cognizant of the availability, relative costs
and benefits of uninsured and underinsured motorist
coverage as well as the implications of selecting mini-
mum coverage limits,’ and that her endorsement
reflected ‘a conscious decision,’ on behalf of [the
employer], ‘to select uninsured/ underinsured motorist
limits of $40,000 in Connecticut.’ Under the circum-
stances, we are unwilling to conclude that [the employ-
er’s] request for a reduction in uninsured and underin-
sured motorist coverage was ineffective even though,
contrary to the dictates of § 38a-336 (a) (2), the heading
of the informed consent form in which the request
appeared was printed in eight-point type rather than
twelve-point type.’’ (Footnote omitted.) Id., 413–14.
Frantz, McDonald, and Kinsey all recognize a limited
exception to the statutory requirements of § 38a-336 (a)
(2). Contrary to the defendant’s contention, they did
not establish a sweeping exception that is categorically
available in every case involving a fleet insurance pol-
icy. The holdings in those cases were fact-specific and
predicated on a number of factors that distinguished
the commercial entities in question from the typical
purchaser of insurance. In each case, the insurance
policy (1) involved a large commercial entity that had
‘‘departments that specialize in legal and insurance mat-
ters’’; Frantz v. United States Fleet Leasing, Inc., supra,
245 Conn. 739; (2) was procured by insurance special-
ists who ‘‘were fully aware of the relative cost of unin-
sured motorist coverage’’; id.; see also Kinsey v. Pacific
Employers Ins. Co., supra, 277 Conn. 414 (policy negoti-
ated by commercial entity’s ‘‘vice president of risk’’ who
‘‘was fully cognizant of the availability, relative costs
and benefits of uninsured and underinsured motorist
coverage’’ (internal quotation marks omitted)); McDon-
ald v. National Union Fire Ins. Co. of Pittsburgh, PA,
supra, 79 Conn. App. 804 (policy negotiated by commer-
cial entity’s ‘‘risk manager’’); and (3) covered a massive
fleet of automobiles used to conduct large-scale com-
mercial activities.14 Id., 807. In addition, the court in
those cases considered the ‘‘unreasonable and impracti-
cable’’ result of requiring strict adherence to the statu-
tory requirements of § 38a-336 (a) (2) when there are
numerous named insureds on a policy; see Frantz v.
United States Fleet Leasing, Inc., supra, 740; whether
the commercial entity was self-insured; see McDonald v.
National Union Fire Ins. Co. of Pittsburgh, PA, supra,
806–807; and the amount of insurance premiums paid.
Id., 807. In that ‘‘different factual scenario’’; Frantz v.
United States Fleet Leasing, Inc., supra, 736; the appel-
late courts of this state have held that strict compliance
with the statutory requirements of § 38a-336 (a) (2) is
not required because the ‘‘policy considerations under-
lying [its] enactment are . . . inapplicable . . . .’’
(Citations omitted.) Id., 738; see also Kinsey v. Pacific
Employers Ins. Co., supra, 413–14; McDonald v.
National Union Fire Ins. Co. of Pittsburgh, PA, supra,
807, 811.
With those factors in mind, we turn to the undisputed
facts of the present case, which are culled largely from
Blake’s uncontroverted testimony.15 The dealership was
not a large commercial entity but, rather, was a local
business engaged in automotive repair and used car
sales. As the court found, the dealership was ‘‘not in
the business of loaning cars’’ and, unlike the massive
fleets of vehicles in Frantz, McDonald, and Kinsey; see
footnote 14 of this opinion; the dealership had only ten
to twenty vehicles for sale or lease in the fall of 2015.
Equally significant, those vehicles were not used to
conduct ‘‘a large commercial enterprise’’; McDonald v.
National Union Fire Ins. Co. of Pittsburgh, PA, supra,
79 Conn. App. 807; but rather remained primarily on the
dealership property. As Blake testified, ‘‘the majority of
our business was done on the property’’ and ‘‘operated
more off our lot, even though we did [allow] test drives
on cars . . . we really weren’t in the business of doing
loaner cars. Occasionally we did, and, so I didn’t think
we needed a whole lot of [insurance] coverage for that
area.’’ The dealership also was not self-insured; McDon-
ald v. National Union Fire Ins. Co. of Pittsburgh, supra,
806–807; and its $11,465 annual insurance premium was
far less than the $127,459 to $518,207 in premiums paid
by the large commercial entity in McDonald. Id., 807.
In Frantz, our Supreme Court predicated its decision
in part on the fact that the insurance policy in question
contained numerous named insureds. Frantz v. United
States Fleet Leasing, Inc., supra, 245 Conn. 740. Requir-
ing all such named insureds to provide written consent
to reduce the amount of uninsured motorist coverage,
the court concluded, was ‘‘both unreasonable and
impracticable’’ and ‘‘would have created formidable
administrative burdens for [the commercial entity] or
its insurance underwriter, burdens that we believe it is
most unlikely our legislature intended to impose under
§ 38a-336 (a) (2).’’ Id. Those policy concerns are inappli-
cable to the present case, as the dealership was the
only named insured on the policy here.
Perhaps most importantly, unlike the commercial
entities in Frantz, McDonald, and Kinsey, the dealer-
ship did not have ‘‘departments that specialize in legal
and insurance matters’’ or insurance specialists who
‘‘were fully aware of the relative cost of uninsured
motorist coverage . . . .’’ Id., 739. Blake testified that,
although he handled insurance matters for the dealer-
ship, he did not have ‘‘any education or formal training
on risk loss and insurance purchasing.’’ His uncontro-
verted testimony demonstrates that Blake was more
akin to the typical purchaser of insurance.
On direct examination, Blake admitted that he relied
on his insurance broker to advise him as to the costs
relative to the policy and conceded that he was not
familiar with the coverage limits in the policy. Blake
also admitted that he had never read the policy in full,
but ‘‘read the bold and the highlighted areas as I think
most people would.’’ Blake similarly testified that he
did not read the waiver form ‘‘word for word’’; instead,
he ‘‘read the portions that were filled in, and [he] looked
it over in general, and [he] signed it.’’
Blake also testified that he did not know the differ-
ence between liability coverage and uninsured motorist
coverage and that he did not know what conversion
coverage was. Although he admitted to approving an
election for conversion coverage on page four of the
waiver form, Blake qualified that statement by noting,
‘‘I don’t exactly understand how conversion coverage
works.’’ When asked if he knew how much ‘‘it would
cost to have had an equal amount of liability [and unin-
sured motorist] coverage,’’ Blake admitted that he
did not.
Even more revealing is Blake’s testimony that he
‘‘wanted to have the minimum amounts [of uninsured
motorist coverage] required by the state of Connecti-
cut.’’ In its memorandum of decision, the court specifi-
cally found that Blake wanted ‘‘the lowest possible
[uninsured motorist] coverage that was allowed’’ under
Connecticut law. That finding is difficult to reconcile
with the fact that the policy Blake ultimately procured
contained $100,000 in uninsured motorist coverage—
more than double the $40,000 statutory minimum
required under Connecticut law. See General Statutes
(Rev. to 2015) § 14-112 (a). On cross-examination, Blake
testified that he did not know that the statutory mini-
mum was $40,000 in 2015. Upon learning that the statu-
tory minimum was $40,000, Blake again confirmed that
he had requested the minimum amount of uninsured
motorist coverage from his insurance agent and stated,
‘‘up until [what counsel] just said, I was under the
impression that the minimum was $100,000. That was
what I thought it was at the time.’’ That uncontroverted
testimony demonstrates that, unlike the insurance spe-
cialists who negotiated the fleet insurance policies in
Frantz, McDonald, and Kinsey, Blake was not ‘‘fully
cognizant of the availability, relative costs and benefits
of [uninsured] motorist coverage . . . .’’ (Internal quo-
tation marks omitted.) Kinsey v. Pacific Employers
Ins. Co., supra, 277 Conn. 414.
As this court has noted, ‘‘[t]he purpose of § 38a-336
(a) (2), including the provision requiring that insurers
inform consumers of the premium cost for each of the
underinsured motorists coverage options available, is
to facilitate consumers’ decision-making process and
to ensure that they give informed consent to reduced
coverage.’’ McDonald v. National Union Fire Ins. Co.
of Pittsburgh, PA, supra, 79 Conn. App. 807. At its
essence, the limited exception recognized in Frantz
and its progeny is grounded in the presumption that
large commercial entities staffed with dedicated insur-
ance specialists do not fall ‘‘within the class of consum-
ers that the legislature sought to protect when it man-
dated the disclosure of premium costs under § 38a-336
(a) (2).’’ Id. As evidenced by Blake’s uncontroverted
testimony at trial, the dealership was not such an
entity.16
The defendant contends that its noncompliance with
the statutory requirements of § 38a-336 (a) (2) should
be excused because the policy in question was one
for a commercial garage. In so arguing, the defendant
overlooks the fact that the limited exception articulated
in Frantz, McDonald, and Kinsey was fact-specific and
animated by a number of factors, which we already
have detailed. At its essence, the defendant’s contention
asks this court to expand that limited exception to
encompass all commercial fleet and garage policies.
We decline that invitation. If the General Assembly
wishes to categorically exclude every fleet and garage
policy from the mandate of § 38a-336 (a) (2), it knows
how to do so. See Rutter v. Janis, 334 Conn. 722, 734,
224 A.3d 525 (2020) (noting ‘‘well settled principle of
statutory construction that the legislature knows how
to convey its intent expressly . . . or to use broader
or limiting terms when it chooses to do so’’ (internal
quotation marks omitted)); State v. Grant, 294 Conn.
151, 160, 982 A.2d 169 (2009) (legislature knows how
to use limiting terms).
We also are mindful that § 38a-336 is a statute with
‘‘a broad and remedial purpose’’; Doyle v. Metropolitan
Property & Casualty Ins. Co., supra, 252 Conn. 88 n.5;
namely, to ‘‘protect the named insured and other addi-
tional insureds from suffering an inadequately compen-
sated injury caused by an accident with an inadequately
insured automobile.’’ (Internal quotation marks omit-
ted.) Id., 84; see also Williams v. State Farm Mutual
Automobile Ins. Co., 229 Conn. 359, 373, 641 A.2d 783(1994) (‘‘our uninsured motorist statute is remedial in
nature and designed to protect people injured by unin-
sured motorists’’); Harvey v. Travelers Indemnity Co.,
188 Conn. 245, 250–51, 449 A.2d 157 (1982) (‘‘it is the
intent of the legislature to provide broad coverage to
victims of uninsured motorists’’); cf. Gormbard v.
Zurich Ins. Co., 279 Conn. 808, 824, 904 A.2d 198 (2006)
(noting ‘‘the important public policy goals of the unin-
sured motorist statute’’). We therefore must apply § 38a-
336 (a) (2) ‘‘consistent with the maxim that remedial
statutes should be construed liberally in favor of those
whom the law is intended to protect [and that] excep-
tions to those statutes should be construed narrowly.’’
(Internal quotation marks omitted.) Commission on
Human Rights & Opportunities v. Edge Fitness, LLC,
342 Conn. 25, 37, 268 A.3d 630 (2022); see also Johnson
v. Preleski, 335 Conn. 138, 145, 229 A.3d 97 (2020)
(‘‘[r]emedial statutes must be afforded a liberal con-
struction in favor of those whom the legislature
intended to benefit’’ (internal quotation marks omit-
ted)); Gohel v. Allstate Ins. Co., 61 Conn. App. 806, 815,
768 A.2d 950 (2001) (§ 38a-336 is remedial in nature and
‘‘should be construed liberally in favor of those whom
the law is intended to protect’’ (internal quotation marks
omitted)). The requirements imposed upon insurers
under § 38a-336 (a) (2) are intended to protect typical
purchasers of insurance like Blake who do not possess
insurance expertise and are not fully aware of the cover-
age options and relative cost of uninsured motorist
coverage. See Kinsey v. Pacific Employers Ins. Co.,
supra, 277 Conn. 414; Frantz v. United States Fleet
Leasing, Inc., supra, 245 Conn. 739; see also McDonald
v. National Union Fire Ins. Co. of Pittsburgh, PA,
supra, 79 Conn. App. 807 (purpose of § 38a-336 (a) (2)
‘‘is to facilitate consumers’ decision-making process’’).
In light of the foregoing, we conclude that the con-
struction of § 38a-336 (a) (2) articulated by our Supreme
Court in Frantz does not apply to the different factual
scenario presented by this case. The court, therefore,
improperly concluded as a matter of law that the defen-
dant’s noncompliance with § 38a-336 (a) (2) was
excused. Because the dealership’s uninsured motorist
coverage was not effectively reduced due to that non-
compliance, § 38a-336 (a) (2) dictates that the coverage
under the policy was ‘‘equal to [the coverage] purchased
to protect against loss resulting from the liability
imposed by law . . . .’’ Because the record before us
indicates that the liability coverage under the policy
exceeded the $292,540.06 in workers’ compensation
benefits that the decedent received, ‘‘a triable issue
remains as to the amount of damages that should be
awarded [and] summary judgment should not have been
rendered on that issue.’’ Williams v. Breyer, 21 Conn.
App. 380, 385, 573 A.2d 765, cert. denied, 215 Conn. 812,
576 A.2d 542 (1990).
II
The plaintiffs also claim that the court improperly
determined, in its April 13, 2018 articulation following
the bifurcated trial, that the policy provided for stan-
dard, rather than conversion, uninsured motorist insur-
ance coverage. We disagree.
At the outset, we note that conversion coverage is an
‘‘option [that] is available for an additional premium to
consumers who wish to purchase it in lieu of standard
underinsured motorist coverage under § 38a-336
[and] provides enhanced protection to victims of under-
insured motorists . . . .’’ (Emphasis in original.) Flo-
restal v. Government Employees Ins. Co., 236 Conn.
299, 307, 673 A.2d 474 (1996). ‘‘In contrast to traditional
underinsured motorist coverage, underinsured motorist
conversion coverage is not reduced by the amount of
any payment received by or on behalf of the tortfeasor
or a third party.’’ Baranowski v. Safeco Ins. Co. of
America, 119 Conn. App. 85, 88, 986 A.2d 334 (2010). As
our Supreme Court succinctly explained, ‘‘conversion
coverage . . . means that any [uninsured] motorist
benefits [a plaintiff] is entitled to from the defendant
will not be reduced by the amount recovered from the
legally responsible parties.’’ Tannone v. Amica Mutual
Ins. Co., supra, 329 Conn. 670 n.4.
The question before us is whether the policy provided
standard or conversion coverage to the dealership. It
is well established that ‘‘[a]n insurance policy is to be
interpreted by the same general rules that govern the
construction of any written contract . . . . In accor-
dance with those principles, [t]he determinative ques-
tion is the intent of the parties, that is, what coverage
the . . . [insured] expected to receive and what the
[insurer] was to provide, as disclosed by the provisions
of the policy. . . . If the terms of the policy are clear
and unambiguous, then the language, from which the
intention of the parties is to be deduced, must be
accorded its natural and ordinary meaning.’’ (Internal
quotation marks omitted.) Lexington Ins. Co. v. Lexing-
ton Healthcare Group, Inc., 311 Conn. 29, 37–38, 84 A.3d
1167 (2014). ‘‘As with contracts generally, a provision in
an insurance policy is ambiguous when it is reasonably
susceptible to more than one reading. . . . The deter-
mination of whether an insurance policy is ambiguous
is a matter of law for the court to decide.’’ (Citation
omitted; internal quotation marks omitted.) Metropoli-
tan Life Ins. Co. v. Aetna Casualty & Surety Co., 255
Conn. 295, 305–306, 765 A.2d 891 (2001); see also Cruz
v. Visual Perceptions, LLC, 311 Conn. 93, 101, 84 A.3d
828 (2014) (whether contract language is plain and
unambiguous ‘‘is a question of law subject to plenary
review’’). Furthermore, ‘‘[i]t is a basic principle of insur-
ance law that policy language will be construed as lay-
men would understand it and not according to the inter-
pretation of sophisticated underwriters . . . . [T]he
policyholder’s expectations should be protected as long
as they are objectively reasonable from the layman’s
point of view.’’ (Internal quotation marks omitted.) R.T.
Vanderbilt Co. v. Continental Casualty Co., 273 Conn.
448, 462–63, 870 A.2d 1048 (2005).
The policy here is twenty-one pages in length; twenty-
five forms and endorsements spanning approximately
one hundred pages are appended to the policy. The
policy nonetheless is silent as to whether it provides
standard or conversion coverage. Unlike other insur-
ance policies; see, e.g., Serra v. West Haven, 77 Conn.
App. 267, 269 n.3, 822 A.2d 1018 (2003); neither the
policy nor the appended materials contain any provision
indicating whether standard or conversion coverage
applies. The only mention of uninsured motorist cover-
age at all is in the ‘‘GARAGE DECLARATIONS’’ sec-
tion,17 but that section does not specify the nature of
the coverage provided. As a result, a reasonable layper-
son in the position of the purchaser of the policy; see
Israel v. State Farm Mutual Automobile Ins. Co., 259
Conn. 503, 509, 789 A.2d 974 (2002); would not be able
to divine from the written policy the nature of the unin-
sured motorist coverage contained therein. Accord-
ingly, we conclude that the policy is ambiguous as to
whether it provides standard or conversion coverage.
In light of that ambiguity, the plaintiffs contend that
the contra proferentem canon of construction requires
us to construe the policy against the defendant as
drafter of the policy. That canon provides that ‘‘ambigu-
ities in contract documents are resolved against the
party responsible for its drafting . . . . The party who
actually does the writing of an instrument will presum-
ably be guided by his own interests and goals in the
transaction. He may choose shadings of expression,
words more specific or more imprecise, according to
the dictates of these interests. . . . A further, related
rationale for the rule is that [s]ince one who speaks
or writes, can by exactness of expression more easily
prevent mistakes in meaning, than one with whom he
is dealing, doubts arising from ambiguity are resolved
in favor of the latter.’’ (Internal quotation marks omit-
ted.) Id., 508–509.
The plaintiffs ignore the fact that ‘‘when a policy
provision is facially ambiguous, the court should first
apply other tools of construction and, if relevant, con-
sult extrinsic evidence of the parties’ intentions before
construing the [policy] against the drafter.’’ R.T. Vand-
erbilt Co. v. Hartford Accident & Indemnity Co., 171
Conn. App. 61, 90, 156 A.3d 539 (2017), aff’d, 333 Conn.
343, 216 A.3d 629 (2019); see also Gold v. Rowland, 325
Conn. 146, 160, 156 A.3d 477 (2017) (‘‘the application
of contra proferentem is premature in situations [in
which] there has not yet been any attempt to resolve the
ambiguity through the ordinary interpretive guides—
namely, a consideration of the extrinsic evidence’’
(internal quotation marks omitted)); Connecticut Ins.
Guaranty Assn. v. Drown, 314 Conn. 161, 195, 101 A.3d
200 (2014) (Rogers, C. J., concurring) (‘‘the rule [of
contra proferentem] should be applied as a tie breaker
only when all other avenues to determining the parties’
intent have been exhausted’’); 2 S. Plitt et al., Couch on
Insurance (3d Ed. Rev. 2010) § 22:16, pp. 22–93 through
22–94 (‘‘since [the] rule of strict construction of an
ambiguous policy against insurer is a rule of last resort,
and not to be permitted to frustrate parties’ expressed
intention if such intention could be otherwise ascer-
tained, where there is extrinsic evidence of parties’
intention, which is proffered and admissible, and which
resolved ambiguity, albeit in favor of noncoverage, the
rule of strict construction need not be applied’’); M.
Taylor et al., Connecticut Insurance Law (2011) § 2-5:1,
p. 35 (‘‘[o]nce a determination is made that the policy
is ambiguous, then the court may consider any relevant
evidence which demonstrates the intent of the parties
at the time that they entered into the policy’’).
Particularly illustrative is Fiallo v. Allstate Ins. Co.,
138 Conn. App. 325, 51 A.3d 1193 (2012). The insurance
policy in that case contained provisions detailing the
nature of both standard ‘‘ ‘Uninsured Motorist Insur-
ance Underinsured Motorist Insurance Coverage’ ’’ and
‘‘ ‘Uninsured Motorist Insurance Underinsured Motorist
Conversion Insurance Coverage’ ’’ and provided corres-
ponding codes for each type of coverage. Id., 336–37.
The declaration page, however, did not contain a code
or explanation to indicate which type of coverage was
provided. Id., 337–38. As a result, this court concluded
that the policy was ambiguous in that regard. Id., 339.
Because the policy did not specify whether standard
or conversion uninsured motorist coverage applied, this
court explained that ‘‘the issue of whether the plaintiff
purchased standard uninsured . . . motorist coverage
or . . . conversion coverage presents a question of his-
torical fact, rather than one of contract construction.
Accordingly, the canon of contra proferentem need not
be applied automatically. . . . The issue in the present
case does not require an interpretation of a policy term
that is written by the insurer . . . but rather warrants
an inquiry into the circumstances of the purchase of
the policy to determine which variety of uninsured . . .
motorist coverage the plaintiff opted to purchase so
that the intentions of the parties may be discovered
and put into effect.’’ (Citations omitted; footnote omit-
ted.) Id., 340–41. For that reason, the court concluded
that ‘‘[t]he determination of what policy was bought
may be resolved by examining extrinsic evidence.’’ Id.,
341. As it stated: ‘‘Because the reasonable expectations
of the insured control when enforcing insurance con-
tracts . . . we conclude that the process best suited
to effectuate the intent of the parties where the language
is ambiguous as to the issue of historical fact whether
the insured elected to buy a particular policy is to exam-
ine extrinsic evidence to determine the parties’ inten-
tions, and if this examination does not resolve the ques-
tion, other canons of construction, including perhaps
the doctrine of contra proferentem, may be applied.
There is a fundamental distinction between deciding
what policy language means, on the one hand, and
deciding, on the other hand, whether a particular policy
option was bought.’’ (Citation omitted.) Id., 341–42. The
court also emphasized that ‘‘the issue in the present
case called for a factual determination rather than a
construction of the terms of the policy drafted by the
insurer.’’ Id., 347. Because the trial court had not made
‘‘a finding regarding the parties’ intentions other than
its conclusion that the policy and declarations page
were unambiguous,’’ this court ‘‘reverse[d] the judg-
ment in part and remand[ed] the case to the [trial] court
to determine which coverage the parties intended.’’
Id., 348.
Like Fiallo, the present case involves ‘‘a factual deter-
mination rather than a construction of the terms of the
policy drafted by the insurer’’; id., 347; for which resort
to extrinsic evidence such as trial testimony is appro-
priate. In considering such evidence, ‘‘[t]he determina-
tive question is the intent of the parties . . . .’’ (Internal
quotation marks omitted.) Connecticut Ins. Guaranty
Assn. v. Drown, supra, 314 Conn. 187.
Conversion coverage is an ‘‘option [that] is available
for an additional premium to consumers who wish to
purchase it . . . .’’ (Emphasis in original.) Florestal v.
Government Employees Ins. Co., supra, 236 Conn. 307;
see also General Statutes § 38a-336a (a). At trial, Blake
testified that he ‘‘wanted to have the minimum amounts
[of insurance coverage] required by the state of Con-
necticut.’’ Blake further testified that he ‘‘was trying to
find a policy [so] that I could keep the [dealership]
ongoing, because . . . we were getting crushed by
. . . insurance costs.’’18 That evidence undermines the
plaintiffs’ claim that Blake intended to purchase
enhanced coverage for an additional premium pursuant
to § 38a-336a.
Also admitted into evidence was a copy of the waiver
form. It is undisputed that the defendant failed to dis-
close to Blake the premium costs for any of the conver-
sion coverage options listed on page four of that docu-
ment. Although the box for ‘‘$100,000 Combined Single
Limit’’ was checked on that page; see footnote 8 of this
opinion; Blake testified that he did not check that box.
He explained that Castellini, the insurance agent who
helped procure the policy, had faxed the waiver form
to him with an asterisk on page four where the signature
of the named insured was required.19 Blake testified
that the only writing on the waiver form that belonged
to him was the signature on page four.
In addition, Blake testified that he did not know what
conversion coverage was and did not ‘‘understand how
conversion coverage works.’’ In his testimony, Blake
also confirmed that he did not ask Castellini about
conversion coverage. In light of that uncontroverted
evidence, we agree with the trial court’s determination
that Blake did not intend to purchase uninsured motor-
ist insurance conversion coverage for the dealership.
The plaintiffs nevertheless argue that the terms of
the waiver form should be deemed part of the policy,
relying on Harlach v. Metropolitan Property & Liabil-
ity Ins. Co., 221 Conn. 185, 602 A.2d 1007 (1992). It is
a curious position, given their contention in this appeal
that the waiver form was invalid and not the product
of a knowing and informed decision on the part of the
named insured. We conclude that Harlach is factually
and contextually distinguishable from the present case.
In Harlach, our Supreme Court noted that ‘‘[i]t is
well settled that an insurance contract must be read to
include provisions that the law requires be included
and to exclude provisions that the law prohibits. . . .
Unless the agreement indicates otherwise, [an applica-
ble] statute existing at the time an agreement is exe-
cuted becomes a part of it and must be read into it just
as if an express provision to that effect were inserted
therein.’’ (Citation omitted; internal quotation marks
omitted.) Id., 191–92. In light of that precept, the plain-
tiff in Harlach argued that a specific statutory provision
should be read into the insurance policy in question—
namely, the requirement of the precursor to § 38a-336
(a) (2) that uninsured motorist coverage be equal to
the limits of liability coverage unless a lesser amount
is requested in writing. Id., 191. The court then focused
its attention on ‘‘uncontroverted’’ evidence that the
plaintiff had submitted an effective request to lower
the amount of her uninsured motorist coverage, and did
not further discuss the issue of incorporating statutory
language into an insurance policy. Id., 192. Notably, the
cases relied on by Harlach originate from the observa-
tion of our Supreme Court in 1940 that ‘‘statutes existing
at the time a contract is made become a part of it and
must be read into it just as if an express provision
to that effect were inserted therein, except where the
contract discloses a contrary intention.’’ (Emphasis
added.) Ciarleglio v. Benedict & Co., 127 Conn. 291,
293, 16 A.2d 593 (1940).
This case is not Harlach. The plaintiffs here are not
seeking to incorporate any statutory provision into the
policy. Rather, they are seeking to incorporate certain
language from a preprinted waiver form; see footnote
6 of this opinion; to compel the conclusion that Blake
knowingly selected conversion coverage. That language
states in relevant part that ‘‘[i]f you check more than
one [coverage option] box, your policy will be issued
with the highest level of coverage selected.’’ Because
the partially completed waiver form that Castellini sent
to Blake had multiple boxes checked; see footnote 8
of this opinion; the plaintiffs argue that this language
must be incorporated into the policy and strictly con-
strued as an election of conversion coverage by Blake.
Yet the plaintiffs have provided no authority in which
a Connecticut court has held that language from a pre-
printed waiver form—as opposed to a statutory provi-
sion—necessarily must be read into an insurance pol-
icy. We likewise are unaware of any such authority.
Apart from that shortcoming, Harlach is factually
distinguishable. Unlike the present case, the named
insured in Harlach, in addition to signing his name, had
‘‘initialed the minimum coverage option’’ on the written
request to reduce uninsured motorist coverage. Har-
lach v. Metropolitan Property & Liability Ins. Co.,
supra, 221 Conn. 188. By contrast, Blake testified that
he did not select any of the boxes for a specific coverage
option and had simply signed his name on the last
page of the form that his insurance agent had provided.
Moreover, Blake testified that he did not read the waiver
form ‘‘word for word’’; instead, he ‘‘read the portions
that were filled in, and [he] looked it over in general,
and [he] signed it.’’ Blake also testified that he did not
know what conversion coverage was, that he did not
‘‘understand how conversion coverage works,’’ and that
he did not ask Castellini about conversion coverage.
In addition, the written request to reduce uninsured
motorist coverage in Harlach ‘‘made it very clear that
increased amounts of coverage were available at a
higher premium . . . .’’ Harlach v. Metropolitan Prop-
erty & Liability Ins. Co., supra, 221 Conn. 193. In the
present case, the waiver form did not provide premium
costs for any of the eighty-two coverage options listed
on pages three and four of that document; the area
designated for the ‘‘Total Coverage Premium’’ for each
of those options on the form was blank. Accordingly,
unlike in Harlach, the waiver form here did not comply
with the statutory requirements governing requests to
reduce uninsured motorist coverage. See id., 192.
Furthermore, the plaintiff in Harlach was seeking to
invalidate a written request that the named insured had
signed due to his ‘‘mistaken [understanding] as to what
coverage he was surrendering . . . .’’ Id., 190. By con-
trast, the plaintiffs in the present case seek to invalidate
the waiver form signed by Blake due to the failure
of the defendant insurer to comply with the statutory
requirements of § 38a-336 (a) (2), while paradoxically
urging this court to incorporate by reference certain
language contained on that preprinted form. Having
determined in part I of this opinion that the waiver
form was an ineffective attempt to reduce the uninsured
motorist coverage under the policy, and in light of the
uncontroverted evidence in the record before us, we
decline to incorporate the language in question from
that preprinted form into the policy. The trial court,
therefore, properly concluded that the policy provided
for standard, rather than conversion, uninsured motor-
ist insurance coverage.
The judgment is reversed with respect to the issue
of uninsured motorist coverage limitations under the
policy and the case is remanded to the trial court for
further proceedings in accordance with this opinion;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The decedent commenced this civil action on March 2, 2016. Following
his death in 2019, the court granted the motion to substitute the coadministra-
tors of his estate as the plaintiffs, and all references herein to the plaintiffs
are to the substitute plaintiffs.
2
Also named as defendants in the complaint were United Services Automo-
bile Association and Marisol Yanez-Ventura. Prior to trial, the action against
United Services Automobile Association was withdrawn. Yanez-Ventura did
not appear before the Superior Court and has not appeared in this appeal.
For purposes of clarity, we refer to Wesco Insurance Company as the defen-
dant and Yanez-Ventura by name in this opinion.
3
The plaintiffs also claim that the court improperly concluded that a
written request to reduce uninsured motorist coverage executed by an agent
of the dealership was valid and the product of a knowing and informed
decision. In light of our resolution of their principal contention, we do not
address that claim.
4
The first two counts of the complaint pertained to Yanez-Ventura and
United Services Automobile Association, respectively. See footnote 2 of
this opinion.
5
Throughout this opinion, the term uninsured motorist coverage also
encompasses underinsured motorist coverage. See Rydingsword v. Liberty
Mutual Ins. Co., 224 Conn. 8, 14 n.11, 615 A.2d 1032 (1992).
6
That document is a preprinted form that bears the inscription ‘‘ Insur-
ance Services Office, Inc., 2011’’ on the bottom of each of its four pages.
7
At oral argument before this court, the defendant’s counsel conceded
that ‘‘[t]here is no question that the [waiver form] . . . did not comply
strictly with the statute because it . . . was missing the premium amounts.’’
8
The waiver form is four pages in length. The top of the third page
states: ‘‘SELECT ONE OPTION UNDER EITHER STANDARD [UNINSURED
MOTORIST] COVERAGE OR CONVERSION [UNINSURED MOTORIST]
COVERAGE. Do Not Check More Than One Box Below.’’ Nonetheless, the
boxes for $100,000 in coverage were checked on both the standard uninsured
motorist option on page three and the conversion uninsured motorist option
on page four of the waiver form.
9
On February 16, 2018, the decedent filed an appeal of that decision with
this court. By order dated May 23, 2018, this court dismissed that appeal
for lack of a final judgment.
10
In his November 20, 2018 response to interrogatories, the decedent
admitted that he had received $292,540.06 in workers’ compensation bene-
fits. A copy of that pleading was appended to the defendant’s motion for
summary judgment.
11
Section 38a-334-6 (d) (1) of the Regulations of Connecticut State Agen-
cies provides in relevant part: ‘‘The limit of the insurer’s liability may not
be less than the applicable limits for bodily injury liability specified in
subsection (a) of [General Statutes §] 14-112 . . . except that the policy
may provide for the reduction of limits to the extent that damages have been
. . . (B) paid or are payable under any workers’ compensation law . . . .’’
12
The policy here provided $1 million in liability coverage per accident.
13
As the Supreme Court has observed, the statutory language construed
in Pasion ‘‘is virtually identical’’ to the statutory language contained in § 38a-
336 (a) (2). See Frantz v. United States Fleet Leasing, Inc., supra, 245 Conn.
734 n.16.
14
The insurance policy at issue in Frantz covered 2208 vehicles; Frantz
v. United States Fleet Leasing, Inc., supra, 245 Conn. 731; Kinsey involved
coverage of ‘‘more than 1000 vehicles’’; Kinsey v. Pacific Employers Ins.
Co., supra, 277 Conn. 413; and McDonald involved coverage of ‘‘a fleet of
vehicles [used] to carry on a large commercial enterprise . . . .’’ McDonald
v. National Union Fire Ins. Co. of Pittsburgh, PA, supra, 79 Conn. App. 807.
15
We reiterate that, throughout its memorandum of decision, the court
indicated that it had found Blake’s testimony to be credible.
16
That Blake was not fully apprised of the uninsured motorist options
when signing the waiver form is exemplified by the following colloquy on
direct examination:
‘‘[The Defendant’s Counsel]: [S]ir, you’ll notice on pages three and four
[of the waiver form], the [lines] for total coverage premium . . . those are
all blank, correct?
‘‘[Blake]: . . . [T]hat’s correct.
‘‘[The Defendant’s Counsel]: [On pages] three and four . . . where premi-
ums would be listed, those are blank, right?
‘‘[Blake]: That’s correct.
‘‘[The Defendant’s Counsel]: All right. And if those amounts had been
listed, would you have selected a different [uninsured motorist] limit?
‘‘[Blake]: No, I mean—
‘‘[The Defendant’s Counsel]: And why not?
‘‘[Blake]: Well, the $100,000 was what was required . . . .’’
Blake repeatedly testified throughout the trial that he wanted the minimum
amount of uninsured motorist coverage allowable under Connecticut law,
and the court made such a finding in its decision. Blake also confirmed that
he mistakenly believed that the statutory minimum was $100,000 and testified
that he did not know that the statutory minimum actually was $40,000 until
so informed at trial. That testimony suggests that, if he had been advised
of the correct statutory minimum and corresponding premium costs, Blake
may well have selected a different coverage option.
17
‘‘The declarations page is regarded as part of the insurance contract
. . . and contains the terms most likely to have been requested by the
insured . . . .’’ (Internal quotation marks omitted.) Fiallo v. Allstate Ins.
Co., 138 Conn. App. 325, 336 n.3, 51 A.3d 1193 (2012).
18
In light of that testimony, the court made a finding in its memorandum
of decision that Blake wanted ‘‘the lowest possible [uninsured motorist]
coverage that was allowed’’ under Connecticut law.
19
Blake also was asked if any instructions accompanied that correspon-
dence from Castellini. Blake explained that the instructions from Castellini
had stated, ‘‘Is this what you want and, if so, sign it and send it back to me.’’