DocketNumber: File No. CV990589368S
Citation Numbers: 763 A.2d 691, 46 Conn. Super. Ct. 614, 46 Conn. Supp. 614
Filed Date: 6/7/2000
Status: Precedential
Modified Date: 1/12/2023
It is well settled law that "[i]t is the function of the court to construe the provisions of the contract of insurance." (Internal quotation marks omitted.) O'Brien v. United States Fidelity Guaranty Co.,
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham,
Counsel for the defendant states that, to the best of his knowledge, no court has squarely addressed this issue before; however, he also cites Edelman v. Pacific Employers Ins. Co.,
In the present case, this court concludes that driving an automobile for the purpose of a drive-by shooting is not a use for which the automobile was ordinarily intended.
The plaintiff claims in his original brief dated March 15, 2000 that "[t]he act of moving the uninsured motor vehicle into a position where it could be used to fire shots towards another vehicle one of which hit the plaintiff occurred in the use and operation of an uninsured motor vehicle." Apparently, he is arguing that driving the vehicle to the location was the ordinary use of the vehicle and the shooting was part of that act. There is no evidence, however, as to whether the operator/owner of the motor vehicle knew or did not know the shooting would take place. In his complaint, the plaintiff describes the shooting as being done by the operator or passenger. The vehicle was facing to the east and the shots were fired to the north, with the unknown vehicle being north of the vehicle in which *Page 619 the plaintiff was a passenger. It is a mystery as how to firing north could have resulted in a bullet going south.1 If the firing were to the north, however, the more logical perpetrator was the driver who was on the northern side of the vehicle. Of course, if the passenger were sitting behind the driver, he could just as easily have been the perpetrator. It is apparent from the facts before the court that the identity of the shooter is unknown.
The court rejects the plaintiff's argument because it is clear from the undisputed facts that it was not the vehicle that caused the accident. It was the firing of the gun that caused the accident. The driving of the vehicle and the firing of the gun were separate acts.
On April 24, 2000, the plaintiff amended his complaint and alleged that "[a]t said time and place, the unknown passenger of said other automobile was acting as the agent of the operator of said other automobile within the scope of his authority." The plaintiff in his brief then stated that the passenger was an agent of the owner/operator because the operator knew or should have known of his passenger's propensity to commit violent acts and knew or should have known that the passenger was in possession of a loaded gun, and that the operator was negligent by permitting the passenger to enter his motor vehicle. In addition, the operator knew or should have known that the passenger was about to commit violent acts and that he was negligent by permitting the passenger to enter his motor vehicle. As for agency, the brief states that the "operator was in control of the passenger and did consent to the acts *Page 620 of [the] passenger in that he knew or should have known that the passenger was going to commit a violent act while riding in [the] motor vehicle." No factual basis has been offered by the plaintiff to support the allegations that the operator knew or should have known that the passenger had violent tendencies and had a gun on his person. The plaintiff has also offered no evidence that the operator was in control of the passenger. To complicate this issue further is the fact that the plaintiff does not know who fired the shots. In his amended complaint, the plaintiff states: "At said time and place, the operator or passenger of said other automobile fired some gunshots . . . ." (Emphasis added.)
It is clear that the plaintiff does not know whether it was the operator or the passenger who fired the shots. The agency theory, therefore, is not supported by any facts offered by the plaintiff, who has a duty in a motion for summary judgment to offer an affidavit and/or other evidence to support his legal conclusions. In opposing a motion for summary judgment, the plaintiff must "provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact" and not merely rely on unsubstantiated allegations. Thompson Peck, Inc. v. Division Drywall, Inc.,
Finally, as the defendant points out, this case rests on the interpretation of the policy. "The [i]nterpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent *Page 621
of the parties as expressed by the language of the policy." (Emphasis added; internal quotation marks omitted.) Springdale Donuts, Inc. v. Aetna Casualty Surety Co. of Illinois,
Under "PART B. UNINSURED AND UNDERINSURED MOTORIST COVERAGE" the language of the policy in the present case, in referring to the uninsured motor vehicle, states in pertinent part, the following: "The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of an uninsured motor vehicle." The court finds that this language is clear and unambiguous. This court further finds this language means damages caused by the ownership, maintenance or use of the vehicle, and this language was never intended to have the insured covered for anything other than an automobile accident. This is an automobile liability policy with uninsured motorist coverage. The intent from the language itself is that the policy was to cover the insured for damages caused by an uninsured vehicle, not by someone in the vehicle shooting a gun.
Further, in the policy's definition of uninsured motor vehicle, paragraph 2 states "a land motor vehicle . . . which is a hit and run vehicle whose operator or owner cannot be identified that hits or causes an accident involving," and then goes on to describe covered parties, which certainly includes the plaintiff. (Emphasis added.) The operative word in paragraph 2 is that it must be the vehicle that hits or causes an accident . . . whose operator or owner cannot be identified." (Emphasis added.) It is the vehicle, not the person, that *Page 622 hits or causes an accident. Here, the vehicle did not cause the accident. It was an individual, either the operator or the passenger, who caused the accident. Further, the vehicle is described as a hit and run vehicle, which would indicate a vehicle that crashes into or collides with the insured's vehicle. This court cannot believe that the legislature intended that uninsured motorist coverage was to cover a situation in which the insured was injured by a pistol shooting emanating from the uninsured vehicle. The court is unaware of any legislative history, and none has been provided by either party, that would indicate such an intent. As stated previously, the actions were separate. The driving of the vehicle to the scene and the firing of the gun were separate. The operator or owner of the vehicle would not be held liable under a liability policy if there were one, and absent the vehicle causing the accident, there is no coverage under the uninsured motorist provision. When asked by the court whether the plaintiff could collect on the other vehicle's liability policy if one existed, the plaintiff's attorney answered: "Probably not."
The court is well aware of the language directly under paragraph 2.c. of the policy which states: "If there is no physical contact with the vehicle causing the accident, the covered person must prove by a fair preponderance of the evidence that the injuries resulted from the negligence of an unidentified motorist." Again, it refers to the vehicle causing the accident. The court does not believe this sentence applies in the present case for the reasons stated previously in interpreting the other provisions of the policy. Once a determination is made that the policy requires that the vehicle cause the accident and that the firing of a gun from the vehicle is a separate and distinct act, the only logical conclusion is that there is no uninsured motorist coverage under the facts of the present case. *Page 623