Allstate Ins. Co. v. Link

• Decision Date: 20 September 1994
• Docket Number: No. 12486,12486
• Citation: 645 A.2d 1052,35 Conn.App. 338
• Court: Connecticut Court of Appeals
• Parties: ALLSTATE INSURANCE COMPANY v. Regina LINK.

Page 1052

645 A.2d 1052

35 Conn.App. 338

ALLSTATE INSURANCE COMPANY v. Regina LINK.

No. 12486.

Appellate Court of Connecticut.

Argued April 29, 1994.

Decided Aug. 2, 1994.

Certification Denied Sept. 20, 1994.

Raymond T. DeMeo, with whom, on the brief, was Stephen E. Goldman, Hartford, for appellant-appellee (plaintiff).

Bruce D. Jacobs, with whom was Irene P. Jacobs, New Haven, for appellee-appellant (defendant).

Before HEIMAN, SCHALLER and SPEAR, JJ.

HEIMAN, Judge.

The plaintiff, Allstate Insurance Company, appeals from the judgment of the trial court correcting, modifying, and partially vacating an arbitration award of underinsured motorist benefits. On appeal, the plaintiff claims that the trial court improperly (1) stacked ¹ the applicable insurance policy benefits of the defendant, Regina Link, in determining that the tortfeasor's vehicle was underinsured, and (2) declined to review the plaintiff's claim of a right to a set-off against the arbitration award for workers' compensation benefits to be awarded to the defendant in the future. The defendant cross appeals claiming that the trial court improperly reduced the amount of underinsured motorist benefits available to her by crediting to each Allstate policy the total amount paid out by the tortfeasor, thus crediting the plaintiff with double the amount actually expended by the tortfeasor's liability carrier. We affirm the trial court's judgment in part and reverse it in part.

The following facts are necessary for a proper resolution of this appeal and cross appeal. On October 24, 1986, Link was injured when the automobile she was driving was struck by a vehicle operated by Marc DeLuca. The parties agreed that the accident was caused by DeLuca's negligence. DeLuca's insurance company paid $100,000 to the defendant, exhausting the limits of DeLuca's bodily injury liability coverage.

At the time of the accident, Link held two separate automobile insurance policies with Allstate. One policy covered two vehicles, and the other policy covered four vehicles. Each policy carried a separate policy number and provided for uninsured-underinsured motorist coverage limits of $100,000. Link claimed underinsured motorist benefits under both policies.

Link's claims were presented to a panel of arbitrators pursuant to the mandatory arbitration clause contained in the Allstate policies. On June 16, 1992, the arbitrators determined that the tortfeasor was underinsured and that Link was, therefore, entitled to underinsured motorist benefits. The arbitrators determined that the amount of available underinsured motorist coverage was $600,000. From this amount, they credited Allstate with the $100,000 previously paid to Link by the tortfeasor, and $281,244 in workers' compensation benefits received by Link as of May 26, 1992. The arbitrators declined to award Allstate a credit for any future workers' compensation payments to Link.

Allstate thereafter filed an application with the trial court to vacate, correct, or modify the award pursuant to General Statutes §§ 52-418 ² and 52-419. ³ Link filed a counterapplication to confirm the award. A hearing was held and the trial court found that (1) Link was entitled to underinsured motorist coverage under each of the two policies, (2) Allstate failed to provide the trial court with a sufficient record to afford review of the arbitrators' decision to deny Allstate workers' compensation benefits that will be paid to Link in the future, and (3) each policy should have deducted from its cumulative limit the sum of $100,000, thereby increasing by $100,000 the amount of the deduction from the policies originally allowed by the arbitrators.

Subsequent to the trial court decision, Allstate filed a motion to open the judgment for reconsideration and requested leave to file supplemental evidence in order for the trial court to determine the issue of future workers' compensation benefits. That motion was denied.

I

Allstate first claims that the trial court improperly confirmed the decision of the arbitrators that the tortfeasor's vehicle was underinsured. Specifically, Allstate claims that the arbitrators should not have stacked the underinsured motorist coverage for the various vehicles covered by Link's policies in making this initial determination. We disagree.

" 'In reviewing compulsory arbitration cases, this court must conduct a de novo review of the arbitrator's interpretation and application of the law....' (Citations omitted; internal quotation marks omitted.) Buell v. American Universal Ins. Co., 224 Conn. 766, 770, 621 A.2d 262 (1993)." Allstate v. Lenda, 34 Conn.App. 444, 447, 642 A.2d 22 (1994).

General Statutes § 38a-336 ⁴ provides for a two step process for determining underinsured motorist benefits that begins with the initial determination that a tortfeasor's vehicle is underinsured. Covenant Ins. Co. v. Coon, 220 Conn. 30, 36, 594 A.2d 977 (1991). Only after this initial determination is made is the actual award to the insured separately calculated. Id. " '[I]n making the initial determination whether a [tortfeasor's] vehicle is underinsured, § 38a-336 clearly states that the aggregate of the liability limits under all of the tortfeasor's policies are to be compared with the uninsured motorist coverage limit of the policy against which a claim is made. The statute unequivocally refers to the [tortfeasor's] liability provisions in the plural but the [claimant] uninsured motorist provisions in the singular. Consequently, the analysis directed by § 38a-336 requires a comparison between the aggregate of [the tortfeasor's] liability limits available to the victim against the underinsured motorist limits in each single policy against which the victim has a claim.' " (Emphasis in original.) Allstate Ins. Co. v. Lenda, supra, 34 Conn.App. at 448, 642 A.2d 22, quoting Covenant Ins. Co. v. Coon, supra, 220 Conn. at 35-36, 594 A.2d 977. In short, a separate comparison must be made between the total amounts available under any policies held by the tortfeasor and each of the two policies held by Link.

Although the language of General Statutes § 38a-336 as interpreted; Covenant Ins. Co. v. Coon, supra, 220 Conn. at 35-36, 594 A.2d 977; prohibits interpolicy stacking in making the initial determination of whether a tortfeasor's vehicle is underinsured, this court's recent decision in Allstate Ins. Co. v. Lenda, supra, 34 Conn.App. at 448, 642 A.2d 22, has made clear that intrapolicy stacking is permitted. ⁵ "The availability of [intrapolicy] stacking depends upon the reasonable expectations of the parties to the contract, a determination to be gleaned from the facts and circumstances of each case." Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 437, 627 A.2d 1319 (1993).

Neither Link nor Allstate argued or presented evidence to the arbitration panel or the trial court regarding whether Link could have reasonably expected the underinsured motorist coverage under each of her policies to be stacked. The plaintiff does not raise the issue in its brief, and "[a]n appellant who fails to brief a claim abandons it." Practice Book § 4065; State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, --- U.S. ----, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993). We therefore do not address the issue and presume that intrapolicy stacking is proper as the plaintiff has not attacked the decision on these grounds. Allstate v. Lenda, supra, 34 Conn.App. at 448 n. 6, 642 A.2d 22.

The trial court properly determined that the DeLuca automobile was underinsured as to each of Link's policies and that Link was entitled to collect underinsured motorist benefits under each policy. After intrapolicy stacking, Link was entitled to $200,000 in underinsured motorist coverage on the policy that covered two cars, and $400,000 on the policy that covered four cars. Thus, each of these policies was greater than the $100,000 of coverage under the tortfeasor's policy, thereby making the tortfeasor underinsured with respect to both policies.

II

The plaintiff next claims that the trial court improperly declined to review its claim regarding future workers' compensation benefits to be awarded to Link. Generally, § 38a-334-6 of the Regulations of Connecticut State Agencies (formerly § 38-175a-6) provides that an insurer's liability for underinsured motorist coverage may be reduced "to the extent that damages have been ... paid or are payable under any workers' compensation or disability benefits law." The trial court found that Allstate failed to provide the court with a record of the arbitration proceedings and failed to cite to any factual evidence on which the arbitrators could have determined the value of any future award.

The trial court cannot review the award of the arbitration panel regarding the future workers' compensation benefits without an adequate record. General Statutes §§ 52-418 and 52-419 require the trial court to find specific improprieties of the arbitration panel before the award may be vacated, modified, or corrected. It is impossible and unrealistic to require the trial court to make any determination absent the record of the arbitration proceedings. Just as we require an appellant to provide an adequate record for this court to review the trial court upon appeal; see Holmes v. Holmes, 32 Conn.App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); the trial court must require the same. We cannot expect the trial court to have extrasensory powers not possessed by this court.

Allstate also asserts that the trial court improperly denied its motion to open and to file supplemental evidence in the form of Link's projected future medical costs submitted during the arbitration proceedings. We are unpersuaded.

"Once a judgment has been rendered it is to be considered final and it 'should be left undisturbed by post-trial motions except for a good and compelling reason.' Steve Viglione Sheet Metal...