DocketNumber: No. CV 93-0348339
Citation Numbers: 1995 Conn. Super. Ct. 14368
Judges: ZOARSKI, JUDGE.
Filed Date: 12/27/1995
Status: Non-Precedential
Modified Date: 4/17/2021
The defendant, Nationwide Mutual Insurance Company, insured CT Page 14369 the Rutledge vehicle. This policy provided liability limits of $50,000 per person/$100,000 per occurrence. Vanessa Rutledge is the named insured on such policy.
In January 1994, the plaintiff settled its claims against Heather Rutledge and Vanessa Rutledge in exchange for payment of $40,000 of liability insurance. The defendant made this $40,000 payment to the plaintiff. Furthermore, the defendant also paid $60,000 to settle the claims of the other parties involved in this accident. Accordingly, the limits of Rutledge's insurance policy were exhausted since Nationwide Mutual Insurance paid out $100,000 on this occurrence.
In the amended complaint, the plaintiff claims that the estate has not been fully compensated for the death of Laurel Skratt. The plaintiff presently seeks underinsured motorist benefits from the defendant under the policy issued on the Rutledge vehicle since the liability limits of all available insurance policies were exhausted. According to the plaintiff, Laurel Skratt was an insured under the Rutledge's insurance policy and Heather Rutledge was an underinsured motorist as defined in the policy.
On June 23, 1995, the defendant filed a motion for summary judgment on the grounds that the plaintiff is not entitled to underinsured motorist benefits because the Rutledge vehicle cannot be considered an underinsured motor vehicle within the meaning of General Statutes §
As required by Practice Book § 204, the defendant filed a timely memorandum in support of its motion for summary judgment. In addition, the defendant filed a copy of its insurance contract insuring the Rutledge vehicle involved in the accident. The defendant has not filed any other documents in support of its motion. Additionally, the plaintiff has not filed any documents or a memorandum in opposition to the defendant's motion. CT Page 14370
"The summary judgment procedure is designed to eliminate the delay and expense incident to a trial where there is no real issue to be tried. . . ." (Internal quotation marks omitted.)Mac's Car City, Inc. v. American National Bank,
In Stanton v. Northbrook Property and Casualty Ins. Co.,
Superior Court, judicial district of New Haven at New Haven, Docket No. 349982 (July 29, 1994, Hartmere, J.,
The present case is similar to Stanton v. Northbrook Propertyand Casualty Ins. Co. in that the terms of the defendant's insurance policy are at issue. The defendant claims that the Rutledge vehicle cannot be considered an underinsured motor vehicle under the terms of its insurance policy and thus, the defendant is not liable to the plaintiff for underinsured motorist benefits. Since the terms of the defendant's insurance policy, which the defendant has submitted, are at issue and because "it is the function of the court to construe the provisions of [a] contract of insurance"; Wallingford v. HartfordAccident Indemnity Co.,
Section
In Lowrey v. Valley Forge Ins. Co., the plaintiffs were passengers in a car owned and operated by Alfreda Kozlowski, Id., 154. This automobile was involved in an one car accident while the plaintiffs were passengers. Id. The defendant, Valley Forge Insurance Company, provided $100,000 in liability insurance for the Kozlowski automobile with underinsurance coverage in the amount of $100,000. Id. Valley Forge paid the plaintiffs a total of $100,000 in liability insurance. Id. Since the plaintiffs exhausted the liability coverage in the policy, the plaintiffs sought to recover underinsured benefits provided by the defendant. Id. The defendant denied the plaintiffs such benefits because the insurance policy provided that an "uninsured motor vehicle does not include any vehicle or equipment: 1. Owned by or furnished or available for your regular use." Id.
The court stated, "[t]he plain language of the policy exclusion makes it clear that the exclusion applied to the Kozlowski vehicle. . . . The vehicle involved in the accident was owned by Kozlowski, who was the named insured under the policy issued by the defendant. . . . Thus, the vehicle was not an uninsured motor vehicle under the policy." Id., 156. According to the court, "[l]iability insurance is purchased by an owner of a vehicle to protect passengers in that vehicle from the negligent driving of the owner or another driving the vehicle." (Internal quotation marks omitted.) Id., 157. "Underinsured coverage, however, is intended to protect against a different type of risk, the risk that a negligent driver of another vehicle will have CT Page 14372 failed to purchase adequate liability insurance; that is, it is intended to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile." (Internal quotation marks omitted.) Id. The court further explained that "allowing underinsured coverage in the instant case would, in essence, be allowing an individual to increase liability coverage by purchasing less expensive underinsured coverage." (Internal quotation marks omitted.) Id., 158.
The court further explained that underinsured coverage is first-party coverage that follows the person and not the vehicle. Id. The court stated, "[h]ere, however, the [plaintiffs] have already collected under the liability coverage of the insurer of the [Kozlowski] car. . . . To now collect further under the same insurer's underinsured motorist coverage would be to convert the underinsured motorist coverage into third-party insurance, treating it essentially the same as third-party liability coverage." (Internal quotation marks omitted.) Id. The court went on to uphold the insurance policy's exclusion by stating, "[t]he policy definition defining an underinsured motor vehicle to exclude a vehicle owned by or regularly furnished or available to the named insured properly prevents this conversion of first-party coverage into third-party coverage." (Internal quotation marks omitted.) Id.
In the present case, page nine of the defendant's policy entitled Nationwide's Century II Auto Policy states, "[u]nder this coverage, we will pay bodily injury damages that you or your legal representative are legally entitled to recover from the owner or driver of an uninsured motor vehicle1. . . . Anyone else is protected while occupying your auto." Page three of Endorsement 2277 of the Nationwide policy states that "[w]e will not consider as an uninsured motor vehicle . . . (e) any motor vehicle insured under the liability coverage of this policy. . . ." The Rutledge vehicle is an insured vehicle under the defendant's policy. Therefore, the Rutledge vehicle is not considered an underinsured motor vehicle under the defendant's policy.
Although the exclusion contained in the defendant's policy is not worded exactly the same as the exclusion contained in Lowreyv. Valley Forge Ins. Co., the defendant's exclusion still furthers the policy stated in Lowrey v. Valley Forge Ins Co. and §
Accordingly, the defendant is not liable to the plaintiff for underinsured motorist benefits because the exclusion contained in the defendant's insurance policy is valid and applies to the Rutledge's motor vehicle. Therefore, the defendant's motion for summary judgment is granted.
Howard F. Zoarski, Judge