DocketNumber: No. CV99-0150588S
Citation Numbers: 2000 Conn. Super. Ct. 10773-i, 28 Conn. L. Rptr. 81
Judges: WIESE, JUDGE.
Filed Date: 8/1/2000
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiffs' revised complaint contains nine counts. The first, second and third count are assertions of negligence on the part of the defendant Rodriguez by each individual plaintiff. The fourth, fifth and sixth counts are assertions of negligence against the defendant Cullum by CT Page 10773-j each individual plaintiff claiming that the defendant Cullum was negligent in leaving his vehicle running with the doors unlocked in a situation where it was foreseeable that someone would take the vehicle. The seventh, eighth and ninth counts are allegations by each individual plaintiff that the defendant Nationwide Insurance is liable under its uninsured motorist coverage. The plaintiffs have moved for summary judgment on the seventh, eighth and ninth counts of the complaint against Nationwide Insurance for liability only.
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven,
The plaintiffs claim that there are no genuine issues of material fact as to the liability of the defendant Nationwide Insurance pursuant to the plaintiff Rancourt's uninsured motorist coverage because the defendant Rodriguez is clearly at fault and does not have insurance. The plaintiffs claim that because the liability of Rodriguez is not disputed and Rodriguez does not have insurance, the Nationwide Insurance uninsured motorist provision is triggered pursuant to General Statutes §
The defendant Nationwide Insurance has filed an objection to the plaintiffs' motion for summary judgment claiming that the determination of liability under the uninsured motorist provision of the plaintiff Rancourt's insurance policy is premature because the automobile at fault is currently insured under the defendant Cullum's policy and coverage has not yet been declined as to the defendant Cullum. See Defendant's Memorandum of Law in Support of Objection to Motion for Summary Judgment, Exhibit A. The defendant argues that this case is distinguishable from Wheeler because there is only one motor vehicle involved and the two alleged tortfeasers are the owner, Cullum, and the operator, Rodriguez, of the same vehicle. In Wheeler, the insured was pinned between a parked vehicle and a moving vehicle. General Accident Ins. Co. v. Wheeler, supra,
The defendants claim that the only motor vehicle involved does not qualify at this time as an uninsured or underinsured motor vehicle because the owner's insurance company has not denied coverage for the defendant Cullum and the plaintiffs have not met their exhaustion requirement as required in General Statutes §
The Nationwide Insurance policy defines an uninsured motor vehicle in pertinent part as "a) one for which there is no bodily injury liability bond or insurance in effect, applicable to the vehicle owner, operator, and any other liable person or organization, at the time of the accident. b) one for which the insuring company denies coverage or becomes insolvent." Defendant's Memorandum of Law in Support of Objection to Motion for Summary Judgment, Exhibit A, Attachment 1, page U2. The Nationwide Insurance policy defines an underinsured motor vehicle as "one for which bodily injury liability coverage or bonds are in effect; however, their total amount is less than the limits of this coverage provided by this policy." Id. Connecticut has defined an "underinsured motor vehicle" as "a motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section." General Statutes §
"Section
Thus, in determining whether the plaintiffs have exhausted all policy limits with respect to a single tort, the focus is on the motor vehicle and not the owner and operator as individual tortfeasors. The plaintiff must "exhaust the policy limits of both the owner and the operator of the tortfeasor vehicle." Maryland Casualty Co. v. Callahan, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 552409, (March 28, 1996, Hale, J.). "Further, whether the owner is considered an additional tortfeasor with respect to the accident does not affect the plaintiff's obligation to exhaust fully all the applicable liability coverage covering the motor vehicle." Orkney v. Hanover Insurance Company, Superior Court, judicial district of New London at Norwich, Docket No. 111660 (April 28, 1998), aff'd,
Viewing the evidence submitted in the light most favorable to the defendant, Nationwide Insurance, the plaintiffs have failed to show that they have exhausted all the liability coverages available to them on the vehicle driven by the defendant Rodriguez and owned by the defendant Cullum. Although the defendant Rodriguez does not have any liability coverage, the defendant Cullum has not been denied coverage on the motor vehicle, and therefore the plaintiffs must exhaust any liability coverage available to them through the defendant Cullum.
For the foregoing reasons, the plaintiffs' motion for summary judgment is denied.
BY THE COURT
PETER EMMETT WIESE J.