Authored by: Joseph Ciollo
Superior Court – Uninsured Motorist Coverage – Identity of Owner/Operator
In Lozano v. United States Automobile Association et al, the plaintiff was involved in a motor vehicle accident on the highway when his vehicle was struck by a tractor-trailer, causing the vehicle to strike the center median. The tractor-trailer reportedly continued down the highway. When deposed, the plaintiff testified that his vehicle was drivable and that he made efforts to follow the tractor-trailer. The plaintiff testified that during his pursuit of the tractor-trailer, he contacted the police, who advised him to take a photograph of the tractor-trailer. The plaintiff was able to photograph the tractor-trailer’s left-side door and license plate. He later met with the police, and a motor vehicle incident report was produced. The plaintiff reported the accident to his insurer, United States Automobile Association “USAA,” which investigated and identified the owner of the tractor-trailer as Pigeon Freight Services (“Pigeon”). USAA also confirmed valid insurance coverage for that tractor-trailer with limits exceeding those of the plaintiff’s policy. USAA subrogated the property damage claim against Pigeon, and Pigeon reimbursed USAA. The plaintiff also submitted a claim for Uninsured Motorist (“UM”) benefits to USAA. When deposed, the owner of Pigeon, testified that his company’s trucks were in the area where accident occurred, but that none reported involvement in an accident despite a mandatory internal reporting policy. The company owner also testified he was able to identify the driver based on the photograph of the license plate taken by the plaintiff. USAA filed a Motion for Summary Judgment arguing that the UM claim lacked merit and that no genuine issue of material fact existed. In the plaintiff’s objection to the motion for summary judgment, he included a sworn affidavit making statements contrary to his deposition testimony, including that he was unsure if the tractor-trailer he caught up to was the one that struck him. The Court considered whether to apply the “sham affidavit” rule and disregard the plaintiff’s affidavit but noted that if a witness provides a reasonable explanation for the contradiction created by the affidavit, such as confusion or discovery of new evidence, the sham affidavit rule should not apply. In reviewing all of the available facts, the Court determined that there was indeed a genuine issue of material fact concerning whether the plaintiff had identified the tractor-trailer that struck his vehicle. The motion for summary judgment was denied.
U.S. District Court – Duty to Defend – Declaratory Judgment
In Atain Specialty Insurance Company v. Nordic Builders Of Tolland, LLC et al, the plaintiff, Atain Specialty Insurance Company (“Atain”), filed a complaint for declaratory judgment seeking a declaration that it has neither a duty to defend nor indemnify the defendant, Nordic Builders Of Tolland (“Nordic”) in an pending personal injury action. The plaintiff in the personal injury action, Edgar Visuma (“Visuma”), alleged that Nordic, a construction company, was the owner, agent, and/or was in possession and control of the subject premises, and that while on the premises, he attempted to negotiate some stairs, at which time he tripped and fell because the stairs were covered with improperly secured cardboard. Nordic subcontracted the project’s flooring work to Dalene Hardwood Flooring Company Inc. (“Dalene”), which in turn subcontracted carpet installation to JMCS Flooring LLC (“JMCS”), Visuma’s employer at the time of the incident. Visuma filed a worker’s compensation claim against JMCS, and was paid worker’s compensation benefits. Atain filed a motion for summary judgment and argued that the Employee Endorsement in the applicable insurance policy excluded from coverage “all causes of action arising out of ‘bodily injury’ to any ‘employee’, subcontractor, employee of any subcontractor, ‘independent contractor’, employee of any ‘independent contractor’, ‘temporary worker’, “leased worker’, ‘volunteer worker’ or any person performing work or services for any insured because of ‘bodily injury’ including care and loss of services.” Atain argued that Visuma was an employee of a subcontractor on the project and his alleged bodily injuries arose out of his work on the project. In response, Nordic argued that there were genuine issues of material fact as to whether Visuma was the employee of a subcontractor at the time of the incident. Nordic implied that a trier of fact could find that JMCS was not a subcontractor on the project, and further argued that Visuma was likely not an employee of JMCS, but rather an independent contractor. Nordic also asserted that the Employee Endorsement did not exclude an “independent contractor of any subcontractor,” such that if Visuma was such an independent contractor of a subcontractor, the exclusion would not apply. Nordic also suggested that if the Exclusion language in this regard was determined to be ambiguous the policy must be construed in favor of coverage. In reviewing the evidence, the Court found that there was no genuine dispute of material fact that Visuma was an employee of a subcontractor and therefore the injuries he allegedly suffered were excluded from coverage under the policy’s Employee Endorsement. Further, the Court found that the policy unambiguously excluded independent contractors, and so Visuma would be excluded even if there was a factual dispute as to whether he was an employee or an independent contractor of a subcontractor. In this regard, the Court found Nordic’s arguments about Visuma’s employment status at the time of his injury and JMCS’s status to be immaterial. Under the broad language of the exclusions in the Employee Endorsement, it was immaterial whether JMCS was a subcontractor or an independent contractor, for the same reasons that it was immaterial whether Visuma was an employee of a subcontractor or an independent contractor of a subcontractor. The motion for summary judgment was granted.
Superior Court – Uninsured Motorist Coverage – Workers’ Compensation Benefits Setoff
In Cotto v. Utica National Assurance Company, the plaintiff was involved in a motor vehicle accident while operating a vehicle owned by his employer, when an unidentified vehicle collided with his vehicle, causing him to sustain injuries as a result of the collision. The employer had an automobile insurance policy with Utica National Assurance Company (“Utica”). The plaintiff submitted a workers’ compensation claim to his employed, and as a result over $100,000 in workers’ compensation benefits was paid to him or on his behalf. The plaintiff submitted a claim for Uninsured Motorist (“UM”) benefits to Utica, which denied coverage on the basis that asserted that no coverage was available because the received workers’ compensation benefits that exceeded the applicable UM policy limit of $75,000. Utica filed a motion for summary judgment on this basis. The plaintiff argued that the policy at issue listed the UM coverage limit as $1,000,000, not $75,000. Utica, in response, argued that the page listing a $1,000,000 UM coverage limit had no applicability to the terms of the policy. The Court found that the language of the insurance policy was unambiguous in providing for a UM coverage limit of $75,000. The declarations page, which was signed and dated and set forth the dates of the policy period, stated the $75,000 UM coverage policy limit and a single liability limit of $1,000,000. The plaintiff nonetheless pointed to another page, which referred to a $1,000,000 UM policy limit. This single page in the extensive policy document, however, was unsigned and undated and was blank in several key areas. The page referred to a policy modification or change, but there was no effective date stated. The Court also found that in the context of the overall insurance policy, this page unambiguously failed to alter the limits stated on the declarations page. The Court noted that even if, however, the insurance policy was viewed as ambiguous because of the page on which the plaintiff relies, the Court would then consider extrinsic evidence concerning the parties’ intent. The evidence included affidavits of the plaintiff’s employer and Utica, both confirming that the parties to the insurance policy intended and agreed to a $75,000 UM coverage limit, which is what the employed paid for. The annual premium for the UM coverage was $1,130, compared to the $92,101 premium for the $1,000,000 single liability limit. Moreover, the affidavits stated that the employer and Utica have contracted for many years and that the employer has always elected a UM coverage limit that is lower than the liability coverage limit. Apart from pointing to a single page that referred to a $1,000,000 UM coverage limit, the plaintiff adduced no evidence to challenge or contradict the affidavits regarding the contracting parties’ intentions. On this record, the Court found that no reasonable factfinder could conclude that the employed and Utica intended to contract for a $1,000,000 UM coverage limit. The Court also rejected the plaintiff’s argument that, if the insurance policy was deemed ambiguous, it must be construed against the drafter, Utica. Here, both parties to the policy agreed on the contract’s meaning and on their intention, and, in any event, the plaintiff cited no authority requiring the interpretation of a contractual ambiguity in favor of a non-party in this context. The motion for summary judgment was granted.
