Streitweiser v. Middlesex Mut. Assur. Co., 14239

• Decision Date: 25 June 1991
• Docket Number: No. 14239,14239
• Citation: 219 Conn. 371,593 A.2d 498
• Court: Connecticut Supreme Court
• Parties: William STREITWEISER v. MIDDLESEX MUTUAL ASSURANCE COMPANY.

Page 498

593 A.2d 498

219 Conn. 371

William STREITWEISER v. MIDDLESEX MUTUAL ASSURANCE COMPANY.

No. 14239.

Supreme Court of Connecticut.

Argued April 24, 1991.

Decided June 25, 1991.

Brian T. Fischer, West Haven, with whom, on the brief, was Robert LaFrance, Certified Legal Intern, for appellant (plaintiff).

Jon S. Berk, for appellee (defendant).

Suzanne G. Martin-Esposito, William I. Garfinkel, Waterbury, and William F. Gallagher, filed a brief, New Haven, for amicus curiae Conn. Trial Lawyers Ass'n.

Before PETERS, C.J., and SHEA, GLASS, COVELLO and FRANCIS X. HENNESSY, JJ.

PETERS, Chief Justice.

The dispositive issue reserved for our advice in this case is whether this state's legislative policy mandating insurance protection for someone injured by an identifiable uninsured motorist extends to an accident caused by an unidentified vehicle that has no physical contact with the injured claimant. The plaintiff, William Streitweiser, brought an action to vacate an arbitration award that had denied his claim for uninsured motorist coverage under a policy issued by the defendant, Middlesex Mutual Assurance Company. The trial court, in accordance with the parties' stipulation of the relevant facts, reserved the applicable question of law concerning insurance coverage to the Appellate Court. We transferred the reserved question ¹ to this court pursuant to Practice Book § 4023. Our answer to the reserved question is "yes."

The parties stipulated that, on May 6, 1989, the plaintiff, while operating his 1979 Cadillac eastbound on I-95 in Guilford, lost control of his car after being cut off by the driver of an unidentified vehicle. The plaintiff's car struck a light stanchion and he suffered personal injuries. There was no physical contact between the plaintiff's car and the unidentified car.

At the time of the accident, the plaintiff was an insured under a personal automobile insurance policy issued by the defendant that provided coverage for injuries caused by an uninsured motorist. The policy's uninsured motorist provisions included coverage for injuries caused by a hit and run vehicle that hit a covered person or vehicle. ²

The arbitrators who were asked to adjudicate this case on the stipulated facts determined, by a divided vote, that the plaintiff's accident was not covered by his uninsured motorist insurance and that the defendant was therefore entitled to prevail. The majority concluded that, in the absence of physical contact, both the terms of the insurance policy and the governing case law required an award in favor of the defendant. The dissenting arbitrator concluded, to the contrary, that "[a] non-contact hit and run vehicle is de facto uninsured" and therefore triggers uninsured motorist insurance coverage.

As a result of the plaintiff's application to vacate the arbitration award, the trial court, at the request of the parties, reserved a question of law for appellate consideration and advice. The reserved question requires us to adjudicate the legal consequences of an accident caused by an unidentified vehicle that, without physical contact, causes injury to an individual or an automobile otherwise covered by uninsured motorist insurance. This question has two subparts: (1) Do the terms of the plaintiff's insurance policy entitle him, as a matter of contract construction, to indemnification for the accident? (2) Does the public policy of this state entitle the plaintiff to indemnification, even if his insurance policy does not so provide?

Because General Statutes (Rev. to 1989) § 38-175c(a)(1) mandates arbitration of issues of coverage relating to uninsured motorist insurance, a "reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators." American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 655 n. 11, 591 A.2d 101 (1991). Undertaking that plenary review, we conclude that, although the plaintiff cannot prevail as a matter of contract law, he is entitled to recover because of the public policy favoring uninsured motorist coverage as set forth in § 38-175a-6(a) of the Regulations of Connecticut State Agencies.

I

Well established rules of contract construction counsel us, in the event of ambiguity, to construe the terms of an insurance policy in favor of insurance coverage because it is the insurance company that has drafted the terms of the policy. Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990); Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987); Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512-13, 442 A.2d 920 (1982); see also 2 Restatement (Second), Contracts (1981) § 206. "[A] limitation of liability on uninsured or underinsured motorist coverage must be construed most strongly against the insurer." American Universal Ins. Co. v. DelGreco, supra, 205 Conn. at 196, 530 A.2d 171. A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 583-84, 573 A.2d 699 (1990).

The plaintiff maintains that the policy issued by the defendant is ambiguous in its definition of a hit and run vehicle for which uninsured motorist coverage is available. The policy purports to limit such coverage to "a hit and run vehicle whose operator or owner cannot be identified and which hits" a covered person or auto. The plaintiff asserts that "hits" is ambiguous because dictionary definitions of "hit" include "affect strongly and adversely" and thus contemplate circumstances other than physical contacts. See Webster's Third New International Dictionary. We are unpersuaded.

In context, the policy's reference to "a hit and run vehicle ... which hits" is not ambiguous. Contractual coverage for any hit and run accident necessarily contemplates that the insured has suffered adverse consequences, because otherwise there would be no occasion for indemnification. The addition of the phrase "which hits" would be superfluous unless it was intended to limit the circumstances under which indemnification is payable for injuries arising out of such accidents. If it is reasonably possible to do so, every provision of an insurance policy must be given operative effect. A.M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 621-22, 220 A.2d 32 (1966). The natural and ordinary meaning of "hits" must therefore be taken to express the intent of the parties. See Hammer v. Lumberman's Mutual Casualty Co., supra. So construed, the coverage afforded to the plaintiff is limited, as a matter of contract law, to hit and run accidents involving physical contact with the tortfeasor.

II

The plaintiff maintains that, as a matter of public policy, the defendant was not entitled contractually to exclude from uninsured motorist coverage his right to indemnification for injuries he sustained as a result of his encounter with the tortfeasor, even though there was an absence of any physical contact between them. He relies on the strong public policy favoring uninsured motorist coverage that has marked our legislative and regulatory history since 1967, and on a trial court opinion by Judge Clark in a factually similar case, Fox v. Fidelity & Casualty Co., Superior Court, judicial district of New Haven, Docket No. 86-0250977S (January 30, 1987).

The legislative policy favoring uninsured motorist coverage is contained in General Statutes (Rev. to 1989) § 38-175c(a)(1), which requires every automobile liability insurance policy to include such coverage "for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles...." The accompanying regulation, § 38-175a-6(a) of the Regulations of Connecticut State Agencies, accordingly provides: "The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle...."

This regulatory pattern establishes the public policy that "every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Insurance companies are powerless to restrict the broad coverage mandated by the statute." Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). To implement this established policy, we have held repeatedly that "an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes." (Emphasis added.) Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986); Dixon v. Empire Mutual Ins. Co., 189 Conn. 449, 452-53, 456 A.2d 335 (1983); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 398-99, 446 A.2d 1059 (1982); Safeco Ins. Co. v. Vetre, 174 Conn. 329, 332-33, 387 A.2d 539 (1978); Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 448-51, 370 A.2d 1006 (1976). Significantly, the applicable regulations do not expressly exclude uninsured motorist coverage for accidents in which the tortfeasor's conduct, without physical contact, causes an otherwise covered insured to sustain personal injuries.

This history would require us to answer the reserved question in favor of insurance coverage, but for two cases in which a majority of this court determined that an accident caused by an unidentified vehicle that made no contact with the vehicle of an injured claimant was not an accident caused by an uninsured motorist. In Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507, 363 A.2d 1055 (1975), the...