Berlinski v. Ovellette , 164 Conn. 482 ( 1973 )

MacDonald, J.

(dissenting). I cannot agree with the conclusion of the majority that the trust agreement under consideration is void as against the public policy of the state of Connecticut. Although I do agree that, for all practical purposes, it constitutes an assignment of a tort claim, the common-law objections on public policy grounds are not present here, since the subrogated insurance company obviously is not to be placed in the class of “unscrupulous interlopers and litigious persons” mentioned in the majority opinion, engaged in buying up tort claims. On the contrary, it was obligated by its contract to pay the insured and was required to offer him a contract of the type which created its obligation by regulations issued by the insurance commissioner pursuant to the mandatory provisions of § 38-175a of the General Statutes.⁶ The relevant regulations issued by the commissioner pursuant to this statute and in effect at all times pertinent to this case specifically (1) required that policies issued by the insurer include protection against uninsured motorists and (2) authorized the insurer to require the insured to hold in trust all rights against third parties.⁷ It seems quite clear that the trust agreement was specifically authorized by regulations issued pursuant to legislative mandate and that the legislature, by implication if not by express mandate and authorization to the insurance commissioner, abrogated the common law by authorizing subrogation under the specific circumstances existing in this ease. In view of possible attempts to expand this abrogation or exception to include claims for subrogation in contracts of insurance relating to the so-called Blue Cross and CMS coverage, accident insurance, double indemnity under life insurance, and the like, it would seem desirable for the legislature to clarify and limit this apparent exception to general policy. Pending such clarification, however, the existing statute and regulations make clear the legislative intent that leads to the conclusion expressed here.

Likewise, I cannot agree with the claim of the defendants that the trust agreement is illegal by reason of its specific provision that the insurer has the right to designate counsel and agrees to pay the costs and expenses of suit. The short answer is that both insured and insurer have a financial interest in the litigation. “[Ejven in jurisdictions where the common law of champerty and maintenance prevails the general rule is that any real interest, great or small, certain or uncertain, in the subject-matter of the suit of another, affords a just reason to the party who has such an interest for participating in the suit and exempts him from the charge of illegal maintenance because of Ms giving aid to the suitor.” Bridgeport v. Equitable Title & Mortgage Co., 106 Conn. 542, 550, 138 A. 452. These provisions in the policy are necessary fully to protect the respective rights of the parties who have suffered loss. I see no reason why under these provisions the insurer, Allstate, as one of those parties, should not select counsel and pay the costs of suit since it has a substantial financial interest in recovering its loss. It is, of course, possible that in the course of such litigation a conflict of interest might arise in which the same attorney properly should not represent the interests of both the insurance company and the insured, but, in the present case, there is no suggestion that such a situation existed.

I would affirm the judgment rendered by the trial court.

In tMs opinion Loiselle, J., concurred.

6 “[General Statutes] Sec. 38-175a. minimum provisions in automobile liability policies, (a) Within ninety days from October 1, 1967, and from time to time thereafter, the insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies issued after the eifeetive date of sueh regulations and covering private passenger automobiles . . . registered or principally garaged in this state. Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and unisured motorists coverages under such policies and shall make mandatory the inclusion of bodily injury liability, property damage liability and uninsured motorists coverages. . . .”

7 “[Begs. Conn. State Agencies] Sec. 38-175a-l. required areas op coverage. Policies shall contain at least the following coverages, as hereinafter described: (1) Bodily injury liability and property damage liability; (2) protection against uninsured motorists. Any such policy which, under a separate coverage, undertakes to pay, irrespective of fault, medical expense resulting from bodily injury sustained in automobile accidents, shall provide insurance as hereinafter described for medical payments.”

“[Begs. Conn. State Agencies] Sec. 38-175a-6 (e). recovery over. The insurer may require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim. . . .”