Almeida v. Liberty Mut. Ins. Co.

• Decision Date: 08 August 1995
• Docket Number: No. 14955,14955
• Citation: 234 Conn. 817,663 A.2d 382
• Court: Connecticut Supreme Court
• Parties: Michael ALMEIDA v. LIBERTY MUTUAL INSURANCE COMPANY. LIBERTY MUTUAL INSURANCE COMPANY v. Michael ALMEIDA.

Page 382

663 A.2d 382

234 Conn. 817

Michael ALMEIDA v. LIBERTY MUTUAL INSURANCE COMPANY.

LIBERTY MUTUAL INSURANCE COMPANY v. Michael ALMEIDA.

No. 14955.

Supreme Court of Connecticut.

Argued March 23, 1995.

Decided Aug. 8, 1995.

John K. McDonald, Waterbury, for appellant (Liberty Mut. Ins. Co.).

Daniel D. Skuret, Ansonia, with whom, on the brief, was Daniel D. Skuret III, for appellee (Michael Almeida).

CALLAHAN, BORDEN, NORCOTT, KATZ and PALMER, JJ.

NORCOTT, Associate Justice.

The principal issue in this appeal is whether the trial court properly granted an application to vacate an arbitration award. Michael Almeida, the plaintiff in the first case and the defendant in the second case (plaintiff) was injured in a motor vehicle accident and subsequently filed a claim for underinsured motorists benefits with Liberty Mutual Insurance Company, the defendant in the first case and the plaintiff in the second case (defendant). The defendant denied coverage and the parties submitted the claim to compulsory arbitration. The arbitration panel found for the defendant. The plaintiff filed an application to vacate the arbitration award and the defendant filed an application to confirm the award. The trial court vacated the arbitration award and the defendant appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c), and we reverse the judgment of the trial court.

The following undisputed facts are relevant to this appeal. On September 11, 1987, at approximately 12:43 a.m., on Rubber Avenue in Naugatuck, the plaintiff was seriously injured when he was struck by an insured vehicle driven by Arthur D. Vernon. Vernon was intoxicated, speeding and driving without the aid of headlights. The plaintiff collected $20,000, the maximum coverage on Vernon's liability insurance policy, and then filed a claim with the defendant for underinsured motorist insurance benefits.

On the evening of the accident, the plaintiff had been driving a 1977 Chevrolet Blazer that was owned by Georgette Almeida, the plaintiff's stepmother, and insured by the defendant. The plaintiff contended that, at the time of the accident, he had been "occupying" ¹ the insured vehicle and thus was covered by his stepmother's policy. The defendant denied the plaintiff's claim that he was "occupying" the vehicle. Pursuant to the terms of the policy ² and General Statutes § 38a-336(c), ³ the plaintiff's claim was submitted to compulsory arbitration before a three member arbitration panel.

The specific facts of the accident were vigorously contested at the arbitration hearing. The plaintiff testified that the accident had occurred after he had crossed Rubber Avenue from north to south, and had reached the Blazer, which he claimed had been parked on the southern shoulder of the road. He testified that, as he had placed his hand on the door handle with his thumb on the depressor, his wife had called out to him to warn him of Vernon's vehicle, which was proceeding east on Rubber Avenue. The plaintiff further testified that, in an effort to avoid being struck, he had turned away from the Blazer and had headed north, back across Rubber Avenue. At the time that he was struck by Vernon's vehicle, the plaintiff claimed to have been three or four feet away from the Blazer.

The defendant claimed that the plaintiff's testimony was not credible in that it contradicted the police report, ⁴ the testimony of the investigating police officer, Ken Butler, the plaintiff's prior assertions in his proof of loss statement ⁵ as to how the accident had occurred and the assertions in his complaint in court that he had filed against Vernon. ⁶ According to these statements, the plaintiff had not reached the Blazer prior to the accident, but had been walking south across Rubber Avenue toward the Blazer when he was struck by Vernon's vehicle. In addition, Butler testified that, at the time of impact, the plaintiff had been in the middle of the street and that the Blazer had not been parked on the street as the plaintiff had contended, but instead had been parked in a parking lot adjacent to the road.

On December 17, 1992, the panel issued its unanimous decision denying the plaintiff's claim. The panel's decision provided in relevant part: "The Claimant's testimony was that he had crossed from north to south to the Blazer parked east on Rubber Avenue and had placed his hand on the door handle with his thumb on the depressor getting ready to open the door when, having heard his wife call out to him, he became aware of the Vernon vehicle driving east on Rubber Avenue. In response, he turned away from the Blazer and to his right in the direction of the oncoming truck and headed back across Rubber Avenue in a northerly direction when struck at a point he testified was three to four feet from the Blazer in the eastbound lane of travel.

"The Plaintiff's testimony established he was not, at the time of impact 'in' the vehicle, 'getting in' the vehicle, 'getting on' the vehicle, 'getting out' of the vehicle, or 'getting off' the vehicle since his back was then turned toward the Blazer--which he had not ever entered--and was three to four feet away from it. The Connecticut Supreme Court has concluded the word 'upon' cannot be expanded so as to eliminate the necessity of physical contact with the insured vehicle. Testone v. Allstate Ins. Co., 165 Conn. 126, 133-34, (1973). Absent physical contact with the vehicle, 'it cannot be said that he was "upon" that vehicle.' Id., 134. Prior intent to enter a vehicle is not 'entering' a vehicle within [the] policy meaning. Id. That conclusion is made more inescapable here where the Claimant is struck (accepting the Claimant's version of events as true ) at a point in time when he no longer intended to enter the vehicle but was in fact moving away from it. Testone makes clear the Claimant's status as pedestrian or occupant is determined at the time of impact. Id. The policy definition of 'occupying' establishes the Claimant was not an occupant of the Blazer when struck. The arbitrators are unanimous in finding there can be no recovery." (Emphasis added.)

The plaintiff filed an application in the trial court to vacate the award, claiming that the arbitrators "imperfectly executed their powers," "misconstrued and misapplied the law," and "made legal rulings predicated on factual findings which are contrary to the evidence submitted." The defendant, in a separate action, filed a motion to confirm the award stating that "the [f]inding of the arbitrators conforms to the submission, is in compliance with the law, and is based on substantial evidence." The two actions subsequently were consolidated.

The trial court granted the plaintiff's application to vacate the arbitration award pursuant to General Statutes § 52-418. ⁷ In its decision, the trial court stated: "Accepting that version of events put forth by the arbitrators, the plaintiff reached his vehicle and placed his left hand on the door handle with his thumb on the door handle button and was about to open the door to that motor vehicle when his wife alerted him to the oncoming Vernon vehicle." On the basis of this factual predicate, the trial court concluded that the panel improperly had required actual physical contact with the vehicle under Testone v. Allstate Ins. Co., supra, 165 Conn. [at] 126 . The trial court determined that under certain emergency circumstances, "physical contact may not be required to satisfy a policy's definition of 'occupying'...." See Katz v. Ocean Accident & Guarantee Corp. Ltd., 202 Misc. 745, 112 N.Y.S.2d 737 (1952). The trial court stated that it would be "bizarre and illogical to deny coverage to this plaintiff who attempted to avoid injury while providing coverage to an individual who makes no such effort to avoid injury." The trial court concluded that "under the facts as found by the arbitrators," the plaintiff was entitled to underinsured motorist benefits and, accordingly, granted the plaintiff's motion to vacate the arbitration award. (Emphasis added.)

Thereafter, the defendant moved to open the trial court's judgment on the basis of mutual mistake. As evidence, the defendant submitted an articulation, rendered after the trial court's decision, by two of the three members of the arbitration panel. In their articulation, the arbitrators stated that they had not credited the testimony of the plaintiff. ⁸ The trial court denied the defendant's motion to open, stating that "nowhere in the arbitrator's finding does it indicate that the arbitrators discredited the claimant's version of events." Further, the trial court stated that the attempted articulation by the arbitration panel was signed by only two of the arbitrators and therefore violated General Statutes § 38a-336(c), which requires that "the arbitration proceeding shall be conducted ... by a panel of three arbitrators...."

On appeal, the defendant claims that the trial court improperly granted the plaintiff's motion to vacate the arbitrators' award on the basis of the trial court's erroneous interpretation of the award as a finding that the arbitrators had credited the plaintiff's version of events. The defendant claims that there was substantial evidence in the record to support the arbitrators' award and, therefore, that the trial court should have granted the defendant's motion to confirm the award. We agree.

A party not satisfied with a compulsory arbitration award may move to vacate the award pursuant to § 52-418. See footnote 7. "It is the established policy of the courts to regard awards with liberality." (Internal quotation marks omitted.) Costello Construction Corp. v. Teamsters Local 559, 167 Conn. 315, 320, 355 A.2d 279 (1974). "Every reasonable presumption and intendment will be made in favor of an award of arbitrators and of their acts and proceedings." Ramos...