DocketNumber: No. CV 950373810
Citation Numbers: 1997 Conn. Super. Ct. 2242, 19 Conn. L. Rptr. 64
Judges: SILBERT, J.
Filed Date: 3/10/1997
Status: Non-Precedential
Modified Date: 4/17/2021
American Medical Response, the named plaintiff in this case, is the present owner of what was formerly New Haven Ambulance Service, Inc., which was the entity providing emergency service to Paul Marro. At the time, New Haven Ambulance was insured under a commercial liability policy issued by Western World Insurance Company, which is also a plaintiff in this case. New Haven Ambulance was also insured under two other policies. One was a business automobile policy issued by the defendant New Hampshire Insurance Company, and the other was a comprehensive general liability policy issued by Transamerica Insurance Company. The present action was initiated by Western World to determine New Hampshire and Transamerica's obligation to provide coverage for American Medical Response in the Marro litigation. A declaratory judgment action is an appropriate procedural vehicle for resolving issues of insurance coverage. See, Safeco Insurance v.Vetre,
The plaintiff's have now moved for summary judgment. They contend that based on the undisputed facts, they are entitled as a matter of law to a judgment declaring that the New Hampshire policy provides primary coverage in the Marro litigation. In the alternative, they contend that the Transamerica policy should provide primary coverage if the Marro claim is deemed to be not one arising out of the use of a covered auto or out of the rendering or failure to render emergency services. As a third alternative, they claim that Western World and Transamerica should share responsibility for American Medical Response's coverage on a pro rata basis.
Summary judgment must be granted if the pleadings, affidavits, and other documentary proof show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Conn. Practice Book § 384; Suarez v. Dickmont Plastics Corp.,
The purpose of summary judgment is to eliminate the delay and expense accompanying a trial where there is no real issue to be tried. Dowling v. Kielak,
Once the moving party has submitted evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co.,
The party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denial but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
Several provisions of each of the three policies in question are critical to the resolution of this matter, which requires several levels of analysis. The manufacturer's and contractor's liability insurance portion of the Western World policy excludes CT Page 2245 coverage for "bodily injury and property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile . . . owned or operated by or rented or loaned to an insured, or (2) any other automobile . . . operated by any person in the course of his employment by any insured." The emergency care services/malpractice portion of this policy excludes "any liability of the insured which would be covered by a standard automobile public liability policy." It also provides that Western World's liability for injury "arising out of the rendering or failure to render . . . professional services by one of the insured's personnel" is excess over "any other valid and collectible insurance . . ."
The New Hampshire policy is a business automobile policy that includes standard automobile liability coverage. As such, it provides coverage for injuries "caused by an accident and resulting from the ownership, maintenance or use of a covered auto."
The Transamerica policy contains an exclusion for injury "arising out of the ownership, maintenance, use or entrustment to others of any . . . auto . . . owned or operated by or rented or loaned to any insured." Under this policy, use includes "loading and unloading," but that phrase is defined as relating to "the handling of property." This policy states that its commercial general liability coverage is primary, except when the loss arises out of the use of the automobile that is not subject to the general exclusion for injury arising out the use of an auto. The Transamerica policy also specifically excludes coverage for "bodily injury . . . due to the rendering or failure to render any professional service."
Thus, if Marro's injuries arose out of the "use" of the American Medical Response ambulance, the New Hampshire policy provides coverage, and the Western World and Transamerica policies do not. If the injury resulted from the rendering or failure to render professional services, the Western World policy provides coverage, but only as excess over any other collectible insurance. The New Hampshire policy makes no reference to such coverage, and the Transamerica policy excludes it. If the injury arose out of neither the use of an automobile nor out of the rendering or failure to render professional services, then Western World and Transamerica would share coverage on a pro rata basis, based on the general business liability portions of their policies. CT Page 2246
Central to the plaintiffs' claim is their contention that the Marro incident arose out of the "use" of an automobile, the ambulance. The undisputed facts, however, establish that the emergency service personnel dropped the stretcher on which they were carrying Marro while they were still inside his apartment.
To "use" a motor vehicle means "to put [it] into action or service: to have recourse to or enjoyment of: employ." Aetna Lifeand Casualty Co. v. Bulaong,
To justify their claim of "use," therefore, the plaintiff's must argue that ambulance personnel were in the process of "loading" the vehicle at the time of the injury. The Transamerica policy defines "loading and unloading" in terms of property, so this argument applies only to the New Hampshire policy, which does not include such a qualifier. New Hampshire contends that, given the undisputed facts that Marro and the emergency service personnel were very much inside the Marro apartment at the time of the injury, while the ambulance itself was parked very much outside the apartment, parked on the street, the emergency service personnel can hardly be said to have been "loading" the vehicle at the time of the mishap. New Hampshire thus argues that although the plaintiff's personnel may have been planning to load Marro into the ambulance, they cannot be said conclusively to have been loading him at the time of the accident, and the incident can not be said to have arisen out of the vehicle's use based on a "loading" theory.
Most cases that have considered liability attendant to CT Page 2247 loading and unloading of vehicles have done so in the context of property, not persons. See, generally, annot., "Risks Within ``Loading and Unloading' Clause of Motor Vehicle Liability Insurance Policy," 6 A.L.R. 4th 686. See, also, annot., "Liability of Operator of Ambulance Service for Personal Injuries to Person Being Transported," 68 A.L.R. 4th 14, 88, which considers the question of liability for negligence during such activities, but not in the context of insurance policies providing or excluding coverage for incidents arising out of loading or unloading. One case that has held that the concept of "loading and unloading" in the insurance context does apply to people is Broome CountyCooperative Fire Insurance Co. v. Aetna Life and Casualty Co. etal.,
Although the facts of Broome County and the instant matter are similar, there are several important distinctions. First, this case involves an alleged loading of the ambulance, whereasBroome County involved an unloading. Second, in Niece et al. v.Nationwide Mutual Insurance Co. et al., 419 N.Y.S. 799, 801
The transportation from bed to curb was preparatory to the use of the ambulance, but until the ambulance was reached, its use in the transportation of the patient had not begun. The hazard of the transportation of persons to the ambulance was not within the terms of the contract and was not assumed by the insurer.
Hinton, supra,
This statement appears to this court to be a sound approach to determining when the "use" of the vehicle began with respect to the incident that caused Marro's injuries. Obviously, the incident in this case, which occurred while still inside the Marro apartment, was even more remote from the use of the vehicle than was that in Hinton.
The Transamerica policy makes explicit its understanding that the concept of loading and unloading only involves goods and merchandise. Although the failure of the New Hampshire to provide such a distinction might suggest to some that passengers are included within the concept, it is more reasonable to conclude that the Transamerica policy only made explicit what was unspoken in the New Hampshire policy and what was implicit in even theBroome County decision: that "loading and unloading" is a concept that generally applies to goods and merchandise, and not to people. Even if under certain limited circumstances the concept may be said to include people, that extension is not applicable in this case where the act of alleged negligence was physically and temporally so far removed from the vehicle and its use.
The Emergency Care Services/Malpractice portion of the Western World policy excludes coverage for "liability which would be covered by a standard automobile public liability policy." The New Hampshire policy is such a policy, covering accidents arising out of the "ownership, maintenance or use of a covered auto," and the vehicle in which Marro was to have been transported was indisputably a "covered auto." Because, however, the undisputed facts do not establish that the Marro incident arose out of the "use" of the ambulance, even if "use" is defined as including CT Page 2249 "loading or unloading" and even if "loading and unloading" is determined under these circumstances to embrace passengers,2 the plaintiff's are not entitled to summary judgment holding that either New Hampshire or Transamerica is obligated to provide insurance in this case pursuant to its automobile liability coverage.
The Transamerica policy also excludes coverage for bodily injury resulting from "the rendering or failure to render any professional service." The Western World policy does, however, cover "liability arising out of the rendering, or failure to render . . . professional services by one of the insured's personnel," although such coverage is specifically excess over "any other collectible insurance." The court must therefore now consider whether the undisputed facts demonstrate that Marro's injuries did not arise out of the rendering or failure to render professional services.
The plaintiff's contend that the transportation of Marro from his bed to the ambulance was not a professional service within the meaning of its policy. Recognizing that there is no Connecticut case law on this subject, they point to cases a quarter-century old or older that conclude that such transportation is not a professional service. In Gulf InsuranceCo. v. Gold Cross Ambulance Service Co.,
Ambulance "service" generally is not professional in nature. In cases where ambulance attendants administer oxygen or administer hypodermics the acts may be professional service although the attendants may not be professional men. The word "service" connotes work. Not all work is professional. "Professional service" traditionally, and as generally understood, means work requiring knowledge of an advanced type in a field of learning or science customarily acquired by a prolonged course of study of specialized intellectual instruction as distinguished from training in the performance of routine, manual, or physical processes. Id. at 152.
Ambulance service is primarily manual. It is generally regarded as such. While it may require skill on the part of those who render the service, it does not require knowledge of an advanced type in a field of CT Page 2250 learning customarily acquired after a long period of specialized intellectual instruction. Id. at 154.
If Gulf and those even older cases which it cites were correctly decided at the time of their rendition, their vitality is undermined by significant changes that have occurred in the emergency medical services field over the past twenty-five years, including pervasive state regulation and licensing requirements for emergency service providers, including ambulance services, and training and certification procedures for their personnel. See, e.g., General Statutes Sec.
The plaintiff's are therefore not entitled to summary judgment declaring that Western World is relieved of the obligation to provide coverage based on its contention that Marro's injuries were not the result of a rendering or failure to render professional services. (Nor can it be said to be undisputed that the facts support the conclusion that Transamerica is relieved of any obligation to provide coverage based on its exclusion of professional services related injuries or that Western World's coverage for such injuries is excess over Transamerica's coverage.) All that can be stated with certainty is that, based on those undisputed facts that have been submitted to the court in connection with this motion, the plaintiff's have not shown that either of the defendants is obligated, as a matter of law, to provide any of the insurance coverage that Western World seeks to shed, or, at least, to share. The motion for summary judgment is therefore denied.
Silbert, J.
Telesco v. Telesco , 187 Conn. 715 ( 1982 )
Dowling v. Kielak , 160 Conn. 14 ( 1970 )
Yanow v. Teal Industries, Inc. , 178 Conn. 262 ( 1979 )
Hinton v. Employers' Liability Assurance Corp. , 166 Tenn. 324 ( 1933 )
Farrell v. Farrell , 182 Conn. 34 ( 1980 )
Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )
Hogle v. Hogle , 167 Conn. 572 ( 1975 )
Michaud v. Gurney , 168 Conn. 431 ( 1975 )
Rusco Industries, Inc. v. Hartford Housing Authority , 168 Conn. 1 ( 1975 )
Safeco Insurance v. Vetre , 174 Conn. 329 ( 1978 )
Dorazio v. M. B. Foster Electric Co. , 157 Conn. 226 ( 1968 )
Kasowitz v. Mutual Construction Co. , 154 Conn. 607 ( 1967 )