DocketNumber: No. 106650
Citation Numbers: 1992 Conn. Super. Ct. 5027
Judges: BARNETT, J. CT Page 5028
Filed Date: 6/2/1992
Status: Non-Precedential
Modified Date: 4/17/2021
The two questions presented require different treatment. On the issue of timeliness, the court is the trier of fact for the determination of coverage, however, the court reviews the doings of the arbitrators.
On March 6, 1990, Attorney Moore, representing plaintiff, wrote to Attorney Kernan, defendant's counsel, suggesting that the arbitrators decide first whether there was coverage. Attorney Moore's plan was that if the question of coverage were resolved favorably to the plaintiff, then evidence as to damages could be presented.
On June 19, 1991, Attorney Moore wrote to Arbitrator McDermott, chairman of the panel, with copies to Attorney Kernan and the other two arbitrators, Kennedy and Ide. Attorney Moore's letter stated that he and Attorney Kernan had reached an agreement whereby the case would be bifurcated with the panel deciding the question of coverage first. Attorney Moore's letter went on to say that a hearing would not be required to resolve the question of coverage. Arbitrator McDermott was asked, in the letter, to establish a briefing schedule. A period of forty-five days was requested for initial simultaneous briefs and another fifteen days for reply briefs.
In a letter addressed to Attorney Moore and Attorney Kernan on June 26, 1991, with copies for the other members of the panel, CT Page 5029 Arbitrator McDermott set August 12 and August 28, 1991, as the dates when the parties would provide each arbitrator with copies of their briefs and reply briefs. The date, time and place for the arbitrators' meeting was arranged for September 11, 1991, at 3:00 p.m., in Arbitrator McDermott's office.
On July 3, 1991, Attorney Kernan wrote to Arbitrator McDermott, with copies to Attorney Moore and the other arbitrators, stating that the lawyers for the parties had agreed on an advancement of the date for the reply briefs to September 6, 1991. On July 31, 1991, Attorney Kernan sent copies of the two insurance policies and a transcript of the plaintiff's deposition to each arbitrator.
The meeting of arbitrators scheduled for September 11, 1991, was cancelled by Arbitrator McDermott, who, on September 6, 1991, wrote to co-arbitrator Ide that he and Arbitrator Kennedy would not be able to attend due to conflicting trial schedules. For a substituted date, McDermott suggested October 7, 1991. In an answering letter, dated September 10, 1991, Arbitrator Ide informed Arbitrator McDermott of his unavailability on October 7th, but that he could be present on either of the next two Mondays. As with all other correspondence, copies of the letters between McDermott and Ide were sent to Attorneys Moore and Kernan.
As matters turned out, the arbitrators did not meet until November 18, 1991, when they reviewed the evidence consisting of the two insurance policies and the plaintiffs deposition, as well as the legal briefs submitted by the parties. Two of the arbitrators, McDermott and Ide, in a majority opinion, decided the question of coverage adverse to the plaintiff. Copies of their decision bearing the date of November 18, 1991, were sent to the parties' lawyers on or about November 27, 1991. The dissenting opinion of Arbitrator Kennedy carries the date of December 6, 1991.
General Statutes
(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect CT Page 5030 unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.
(b) The award shall be in writing and signed by the arbitrator or arbitrators, or a majority of them, or by the umpire. Written notice of the award shall be given to each party.
In purported reliance on Artese v. Allstate Insurance, 6 Conn. L. Rptr. No. 2, 37 (1992) and Hayes v. Travelers Indemnity Co.,
Defendant argues that on two grounds the timeliness of the arbitrators' decision should not be an issue. First, because the plaintiff did not raise the question within thirty days from notice of the award as required by General Statutes
A reading of Hayes v. Travelers Indemnity Co., supra shows it to be concerned more with the period of time implied by
To be sure, as mentioned in Artese, the principal issue in Diamond Fertiliser was whether the proceeding was governed by the rules, including time limits, of the Society of Maritime Arbitrators. Our Supreme Court agreed that the arbitration was conducted pursuant to the rules of the SMA, but concluded further that even if it were not, the award was properly confirmed because the plaintiff had waived any right to object the award's lack of timeliness.
The relevance and importance of waiver in this case is underscored by a few additional factual findings. When the parties extended time for filing their reply briefs with the arbitrators to September 6, 1991, the thirty day period allowed by
On present-day decisional law, the court concludes that plaintiff has waived any right to object to the untimeliness of the award. Although the language in
The court also agrees with defendant's contention that
At the outset, the parties are in disagreement as to the nature of the issues that their case presents. The court disagrees with the defendant's assessment that only factual issues are involved. In deciding that when the plaintiff was injured, he was not operating a "replacement vehicle", and hence, there was no uninsured motorist coverage, the arbitrators, of necessity, had to interpret provisions of a policy and to apply them to the facts at hand. Further, the question of whether a factual finding is supported by substantial evidence is itself a question of law requiring de novo review. Chmielewski, supra at 667.
The evidence submitted to the arbitrators consisted of two policies issued to the plaintiff by the defendant, no. AO 2-212-248683-0388 WY and no. AO 2-212-248683-027 and the transcript of the plaintiff's deposition. In policy AO 2-212-248683-038 WY, the insured vehicle was a 1985 Honda automobile and in policy AO 2-212-248683-027, the insured vehicle was a 1985 Honda motorcycle. Both policies were in effect on June 10, 1988, when the defendant was injured.
When the plaintiff was injured, he was operating a 1986 Suzuki motorcycle which he had purchased on May 2, 1988. The Suzuki was not listed as a covered vehicle under either insurance policy. Both policies contained the following provision in the amendments to coverage section under item II, uninsured motorists coverage:
D. Exclusion A.1 is replaced by the following:
We do not provide uninsured motorists coverage for bodily injury sustained by any person:
1. While occupying, or when struck by, any CT Page 5033 motor vehicle or motorcycle owned by that person or owned by you for which the security required by the Connecticut Financial Responsibility Act is not in effect. This includes trailer of any type used with that vehicle.
The arbitrators held that "[i]f the Suzuki motorcycle was not insured or otherwise in compliance with Connecticut's Financial Responsibility Act, the above exclusion would apply." Apparently, the plaintiff has no quarrel with this portion of the arbitrators' decision or with the subsequent finding that "[t]here is no evidence that the Suzuki was insured under any other policy of insurance or had otherwise met the requirements of the Connecticut Financial Responsibility Act."
Policy A0 2-212-248683-027, however, contained the following language under "Definitions":
B. The definition of your covered auto is replaced by the following:
Your covered auto means:
1. Any miscellaneous type vehicle shown in the schedule or in the declarations.
2. Any of the following types of vehicles on the date you become the owner:
a. a private passenger auto;
b. a pickup or van; or
c. any miscellaneous type vehicle of the same type shown in the Schedule or in the declarations.
This provision apples only if:
a. You acquire the vehicle during the policy period.
b. you ask us to insure it within 30 days after you become the owner; and
c. with respect to a pickup or van, or other insurance policy provides coverage for that vehicle. CT Page 5034
If the vehicle you acquire replaces one of the same type shown in the Schedule or in the Declarations, it will have the same coverage as the vehicle it replaced. You must ask us to insure a replacement vehicle within 30 days if:
a. you wish to add or continue coverage for damage to your auto; or
b. it is a pickup or van used in any business other than farming or ranching.
The arbitrators interpreted this clause to mean that "if the new vehicle is not a pickup or van used in any business other than farming or ranching and it is not a vehicle upon which the insured wishes to add or continue ``coverage for damage to your auto', and if it replaces the vehicle identified in the Schedule or in the Declarations, then the insured is relieved of the obligations, within thirty (30) days after he has become the owner to ask the company to insure it. Again, the plaintiff does not disagree with the arbitrators' construction.
The basis of plaintiff's motion to vacate is the conclusion of two of the three arbitrators that the Suzuki was not a replacement vehicle for the Honda motorcycle. Upon deciding that the status of the Suzuki was to be determined as of May 2, 1988, the date of purchase, the majority of the arbitrators found that plaintiff admitted driving the Honda motorcycle at various times, although sporadically, after he purchased the Suzuki, and before the accident on June 10, 1988. Evidence of the continued use of the Honda motorcycle for purposes within the risk covered by policy AO 2-212-278683-027 persuaded the majority that the Suzuki had not actually replaced the Honda motorcycle, and that it was not plaintiff's intent as of May 2, 1988, that the Suzuki, rather than the Honda, should be the insured vehicle. The conclusion that the Suzuki was not a replacement vehicle meant that for it to be a covered vehicle, plaintiff had to request its inclusion in the policy within 30 days after becoming the owner. Such request was concededly not made before the accident.
The issue of when a vehicle is a replacement under automobile insurance provisions of a policy appears not to have been decided by our appellate courts. From other jurisdictions, however, decisions point out that there is a choice of law. In Government Employees Ins. Co. v. Berry,
In Government Employees Ins. Co. v. Berry, there were no Alabama cases upon which the district court could rely. The "alternative" approach was chosen, however, because of pronouncements in other areas of insurance law that had been made by Alabama courts, viz: "Ambiguous language in insurance policies must be construed in light of an interpretation that would be placed on such language by ordinary people; and conditions and provisos in an insurance policy should be construed liberally in favor of the insured." Similar language appears in opinions from our Supreme Court. e.g. Streitweiser v. Middlesex Mutual Assurance Co., supra at 375; Hammer v. Lumbermens Mutual Casualty Co., supra at 583. For this reason and because, on the facts, the plaintiff could not recover under the "formalistic" approach, the court will assume that the "alternative" approach prevails in Connecticut.
Unless otherwise defined in the policy, which is not the situation here, "replace" has the ordinary meaning of "to take the place of, to serve as a substitute or equivalent for or as a successor of a person or thing." Pomares v. Kansas City Southern Ry. Co.,
It appears therefore, that even under the "alternative" approach, plaintiff was properly denied coverage so long as the findings of the arbitrators were supported by substantial evidence. Substantial evidence exists if the record "affords a substantial basis in fact from which the fact in issue can be CT Page 5036 reasonably inferred." Connecticut Building Wrecking Co. v. Carothers,
Moreover, there was substantial evidence for the arbitrators' finding concerning plaintiff's intent, although the date probably should be advanced from May 2, 1988, the date of purchase, to June 4, 1988, when the plaintiff took possession of the Suzuki from Adam's Suzuki in Watertown. Under the "alternative" approach, the insured's intent becomes important. See Rowland v. State Farm Mutual Auto. Ins. Co.,
BARNETT, J.
Continental Insurance v. Entrikin , 9 Kan. App. 2d 384 ( 1984 )
Filaseta v. Pennsylvania Threshermen & Farmers' Mutual ... , 209 Pa. Super. 322 ( 1967 )
Pomares v. Kansas City Southern Ry. Co. , 474 So. 2d 976 ( 1985 )
Textile Workers Union v. Uncas Printing & Finishing Co. , 20 Conn. Super. Ct. 91 ( 1956 )
State v. Mazzadra , 141 Conn. 731 ( 1954 )
Marsala v. Valve Corporation of America , 157 Conn. 362 ( 1969 )