Frager v. Pennsylvania General Insurance

Shapiro, J.

The plaintiff brought an application in January, 1966, to the Superior Court, under General Statutes § 52-410, for an order directing the defendant to proceed with arbitration in compliance with the uninsured motorist provisions in Part IV of an automobile insurance policy issued by the defendant to Page and Doris Porter, husband and wife, covering the operation of their Corvair automobile. Following a hearing on said application and a judgment directing the defendant to proceed with arbitration, the defendant appealed to this court. In Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531, we found error, set aside the judgment, and remanded the case for further proceedings not inconsistent with our opinion. We found error in the trial court’s conclusion that the question whether there was contact between the automobile operated by the plaintiff and an unidentified automobile was a matter to be determined by arbitration. Id., 273-77. Following our decision, a second hearing was held on the plaintiff’s application to compel arbitration. The trial court found, inter alia, that on April 22,1965, there was contact between the Corvair automobile operated by the plaintiff and an unidentified automobile. From the judgment rendered ordering the defendant to arbitrate in accordance with the insurance policy, the defendant has appealed to us.

In this appeal, there is no dispute as to what are the arbitrable issues under the insurance policy issued by the defendant. That matter was decided in the former appeal. There we found that under this insurance policy the only issues to be arbitrated are: (1) the insured’s right to recover damages from the owner or operator of an uninsured automobile and (2) the amount of such damages. Frager v. Pennsylvania General Ins. Co., supra, 275. Furthermore, in this appeal, we are not called on to decide whether the trial court erroneously found that there was contact between the automobile operated by the plaintiff and an unidentified automobile since the defendant has expressly abandoned in its brief its assignments of error directed at the court’s findings of contact.

The defendant assigns as error the trial court’s overruling of its claim of law that “[t]he plaintiff never gave a statement under oath to the defendant indicating that she was hit by an uninsured automobile.” We find that our decision on this assignment of error is dispositive of this appeal.

The policy definition of “uninsured automobile” includes “a hit-and-run automobile,” which is in turn defined as “an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident provided: (1) there cannot be ascertained the identity of either the operator or owner of such ‘hit-and-run automobile,’ (2) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof.” The claim of law raised by the defendant orally in the trial court relates to the provision contained in the above recited definition of a “hit-and-run automobile” requiring that a statement under oath be given to the insured.

It is obvious from the terms of the policy that coverage for the plaintiff for an accident involving an uninsured automobile which is a hit-and-run automobile is dependent, in part, on compliance with the above recited requirement that the insured or someone in his behalf file a statement under oath with the defendant. By the express provisions of the policy, a hit-and-run automobile is not an “uninsured automobile” in the absence of the prescribed sworn statement. In this particular case we need not and do not decide whether an insured’s failure to give a statement under oath within the thirty-day period provided in the policy would in all events defeat an insured’s right to recover from the defendant, since the defendant’s claim of law recites simply that the plaintiff never gave a statement under oath to the defendant and since, from what is before us, it is clear that the plaintiff has never given a statement under oath to the defendant.

Thé trial court overruled the defendant’s claim of law here in issue for the following reasons: (1) “[S]uch an issue was not before the Court pursuant to the order of the Connecticut Supreme Court reported at 155 Conn. 270, even if it were,” (2) “the defendant waived such a claim by failing to raise the foregoing claim by any pleading”; (3) “the defendant waived such a claim by failing to raise the issue at all until mid-way through the limited hearing in the case”; and (4) “the defendant [sic] substantially complied with the subject provision of the policy.” In spite of the trial court’s view that the issue of a statement under oath was not properly before it, from what is before us, it is clear that the issue of requisite notice to the defendant was tried before it. In fact, both the trial court’s memorandum of decision and its judgment ordering arbitration recite that sufficient notice was given to the defendant.

Wé take up first the trial court’s conclusion that the issue of whether the plaintiff gave a statement under oath to the defendant was not a matter before it because of our decision in Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531. The trial court’s conclusion was erroneous. As earlier recited, our rescript stated: “There is error, the judgment is set aside and the case remanded for further proceedings not inconsistent with this opinion.” Id., 279. There is nothing in our opinion in which we indicated, as the plaintiff argues in her brief, that in the further proceedings ordered the trial court was, to adjudicate only whether there was contact between the automobile operated by the plaintiff and an unidentified automobile. As under the terms of the defendant’s policy the question of contact is a question of coverage and is a condition precedent to arbitrability, the question of requisite notice to the defendant by means of a statement under oath is also a question of coverage and is a condition precedent to arbitrability. Possibly, the trial court was misled by the following portion of our opinion in which we said: “[0]n this appeal it is conceded . . . that the only issue is whether the question of contact should be resolved, as the plaintiff claims, by the arbitrators or, as the defendant claims, by the trial court.” Id., 273-74. By the utilization of this language, we did not mean to imply that the defendant in the subsequent proceedings would be restricted to raising only the issue of contact and thus would be precluded from raising other issues of coverage which would be conditions precedent to the applicability of the agreement to arbitrate contained in the policy. In fact, we noted (p. 276) that “[wjhether an unidentified automobile is an “uninsured automobile” within the terms of the policy is a question independent of whether the plaintiff would be legally entitled to recover damages from the owner or operator thereof if he could have been identified and sued,” and (p. 276) that Part IV of the policy, “when construed as a whole and in accordance with settled principles of contract law, contains no provision that coverage of a particular accident is an arbitrable question.”

We turn next to the court’s conclusion that the defendant waived its claim relating to a statement under oath by failing to raise the issue until midway through the hearing before it. What this conclusion seems to imply is that the defendant had not raised the question of notice at the former hearing of this case which culminated in the judgment we set aside and, therefore, the defendant had waived its right to rely on such a defense in the hearing before it. We need not pass on the merits of whether such a course pursued by an insurer would constitute a waiver since the defendant did not pursue such a course. We have taken judicial notice of the appellate record underlying our decision in Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531. That record reveals, contrary to what the plaintiff claims in her brief, that the issue of notice was raised by the defendant before the trial court in the former hearing of the case. A-468 Rec. & Briefs 117 If 53.

We turn to the court’s conclusion that the defendant waived its claim of lack of notice under oath by failing to raise it by any pleading. In a proceeding to compel arbitration under a properly drawn application, our rule as to pleading in ordinary actions seeking recovery under an insurance policy applies. Visselli v. American Fidelity Co., 155 Conn. 622, 626, 237 A.2d 561; Frager v. Pennsylvania General Ins. Co., supra, 278. Under our rules of pleading, one suing on an insurance policy may allege in general terms compliance with all the obligations it imposes on him. The defendant insurer must then allege any breach of the terms of the policy on which it proposes to rely. Such an allegation of a breach does not shift the burden of proof, the plaintiff being bound to prove performance as to the breach alleged. Rochon v. Preferred Accident Ins. Co., 118 Conn. 190, 195, 171 A. 429; Harty v. Eagle Indemnity Co., 108 Conn. 563, 565, 143 A. 847. In its special defense the defendant alleged, inter alia, that the plaintiff “did not follow the proper procedures as outlined by the policy as relates to hit and run aecidents, for coverage.” Whether this allegation, under the circumstances of this case, constitutes effective pleading under Rochon v. Preferred Accident Ins. Co., supra, Harty v. Eagle Indemnity Co., supra, and Sortito v. Prudential Ins. Co., 108 Conn. 163, 168, 142 A. 808, we need not decide. The failure to file a special defense may be treated as waived when it appears that no objection was raised to the offer of evidence on the issue at the trial. Alderman v. Hanover Ins. Group, 155 Conn. 585, 590, 236 A.2d 462; Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698. From what is before us, it appears that no objection was ever made by the plaintiff to the defendant’s offer of evidence that the plaintiff never gave a statement under oath to the defendant. To be certain that justice is done we have consulted the transcript of the hearing. See State v. Costello, 160 Conn. 37, 40, 273 A.2d 687. The transcript reveals that the plaintiff never objected to the defendant’s offer of evidence on the ground that the question of a notice under oath was outside the pleadings. Furthermore, as demonstrated in the appendix to the defendant’s brief, the plaintiff’s counsel, prior to the defendant’s offer of evidence, sought to have admitted into evidence certain letters. The trial court remarked: “You are just trying to get for the record that there was a notice.” The plaintiff’s counsel answered: “Yes, within 30 days.” Under these circumstances, even assuming that the defendant failed properly to plead its defense of a lack of notice under oath, the defect in pleading is deemed to have been waived.

We turn finally to the court’s conclusion that “the defendant [sic] substantially complied with the subject provision of the policy.” Even assuming that the court intended to use the word “plaintiff” instead of “defendant,” we find nothing in the finding which would even tend to support this conclusion of substantial compliance.

There is error, the judgment is set aside and the case is remanded "with direction to render judgment dismissing the application.

In this opinion House, C. J., and Loiselle, J., concurred.