DocketNumber: No. CV94 0357200
Citation Numbers: 1994 Conn. Super. Ct. 8058
Judges: BOOTH, JUDGE.
Filed Date: 8/10/1994
Status: Non-Precedential
Modified Date: 4/18/2021
Harrington Forgione for plaintiff.
Regnier, Taylor, Curran Eddy for defendant. The plaintiffs, Virginia and Leo Stanlake filed an application to vacate an Award of Arbitration dated January 31, 1994. In a companion case United Services Automobile Associationv. Stanlake, Docket No. 357320 the defendants in the present case filed an application to vacate, correct or modify the same Arbitration Award. The defendants in this case are the United Services Automobile Association and Progressive Casualty Insurance Company. The Uninsured Motorist Arbitration Award dated CT Page 8059 December 30, 1993 set forth the following factual stipulations:
"1. On January 6, 1989 the plaintiffs were passengers in a vehicle owned and operated by Cartier Limousine Service (hereinafter Cartier), insured by Progressive, when a car owned by Agency Rent-A-Car Inc. (hereinafter Agency), insured with a certificate of self insurance, operated by Robert Kaczorowski, who had no applicable personal liability insurance and to whom Agency has now declined to provide liability insurance protection, so negligently operated the Agency car so as to cause the same to strike the Cartier car thereby proximately causing the plaintiffs to sustain injuries.
2. On said date, the plaintiffs were insured, on their personal automobile policy, for uninsured and under insured motorist protection with United in the amount of $900,000.00 and with Progressive in the amount of $1,000,000.00 by virtue of their permissive occupancy in the Cartier limousine.
3. Kaczorowski had leased the car he operated from Agency. Agency based its declination of liability coverage to Kaczorowski on `misrepresentations of insurance coverage and alleged operation of the vehicle in violation of the motor vehicle laws.'"
The following issues was submitted by the parties to the arbitration panel for determination:
1. Whether the respondents applicable insurance policies provided uninsured or underinsured motorist coverage to the claimants.
2. Whether Wheeler, is applicable so as to trigger uninsured motorist coverage at this time.
3. Whether the denial of coverage by Agency to Kaczorowski is valid. CT Page 8060
4. Whether Agency is liable for damages caused by Kaczorowski negligence pursuant to §
5. Whether Kaczorowski was legally liable for the collision and proximately resulting injuries and losses suffered by the claimants.
6. What sums constitute fair, just and reasonable damages for injuries and losses suffered by the Stanlakes as a proximate result of the collision.
The arbiters made findings. Those findings concluded: the damages for injuries and losses suffered by Leo and Virginia Stanlake total $17,500.00 and $52,500.00 respectively. Kaczorowski is legally liable for the accident and the injuries and losses suffered by the plaintiffs. The applicable Progressive and United Service Insurance Policies provide uninsured motorist coverage only when both the legally liable operator and the vehicle used by said operator have no applicable liability insurance. A determination as to whether there is liability coverage on the Agency car will depend on whether Agency is legally liable pursuant to General Statutes §
DISCUSSION
I. Applicability of Wheeler
The plaintiffs first addressed the issue of whether the plaintiffs were required to exhaust any coverages available through the self insurance of Agency before proceeding to CT Page 8061 arbitration. The plaintiffs maintain that the present case is controlled by General Accident Company v. Wheeler, and that the driver, Kaczorowski and the owner and self-insured, Agency, are separate tortfeasors. The plaintiffs argue that because one tortfeasor, the driver, is uninsured the plaintiffs are entitled to pursue the protections available to them under the underinsured/uninsured provisions of the defendant's policy without having to exhaust the coverage of remaining tortfeasors. The court holds that Wheeler is not applicable to the present case. For the reasons set forth in Ciarelli,
II. Whether a self-insured vehicle could constitute an underinsured or uninsured vehicle for purposes of triggering underinsured or uninsured motor vehicle coverage.
General Statutes §
"Each automobile liability policy shall provide . . . called uninsured motorist coverage . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and uninsured motor vehicles . . . because of bodily injury. . . ."
"Statutory provisions relating expressly to uninsured motorist coverage apply also to underinsured motorist," AmericanMotorist Ins. Company v. Gould,
Connecticut Regulations §
Pursuant to Connecticut General Statutes §
However, Regulation §
III. Whether an insured must exhaust the tortfeasor's liability insurance before proceeding to arbitration on uninsured motorist coverage.
General Statutes §
However, although Cebe-Habersky requires exhaustion before recovery, the Supreme Court subsequently held that Cebe-Habersky
"did not hold that a claim against a tortfeasor in an arbitration action against an insurer cannot be initiated simultaneously"McGlinchey v. Aetna Casualty and Surety Company,
For the foregoing reasons the Application to Vacate the Arbitration Award is denied and the award is confirmed.
Kevin E. Booth, Judge