Bouley v. City of Norwich, 9046

• Citation: 595 A.2d 884,25 Conn.App. 492
• Decision Date: 19 September 1991
• Docket Number: No. 9046,9046
• Court: Connecticut Court of Appeals
• Parties: Bruce A. BOULEY et al. v. CITY OF NORWICH et al.

Page 884

595 A.2d 884

25 Conn.App. 492

Bruce A. BOULEY et al. v. CITY OF NORWICH et al.

No. 9046.

Appellate Court of Connecticut.

Argued Dec. 11, 1990.

Decided July 30, 1991.

Certification Granted Sept. 19, 1991.

Donald R. Beebe, with whom were David O'Dea, Norwich, and, on the brief, Christopher J. Walsh, Derby, for appellants (plaintiffs).

Marc Mandell, Asst. Corp. Counsel, with whom, on the brief, was Ralph Bergman, Asst. Corp. Counsel, Norwich, for appellees (defendants).

Kerin Margaret Woods, New London, and William F. Gallagher, New Haven, filed a brief for the Connecticut Trial Lawyers Ass'n as amicus curiae.

Before DUPONT, C.J., and SPALLONE and LANDAU, JJ.

LANDAU, Judge.

The plaintiff appeals from the trial court's granting of the defendant's motion for summary judgment. We hold that although there was no material fact in issue, the defendant was not entitled to judgment as a matter of law, and, therefore, the court's judgment must be reversed. ¹

The plaintiff was a police officer employed by the defendant. He was injured in the course of his employment when the police car he was operating was involved in a collision with another car. He received workers' compensation benefits and $20,000 from the other driver's insurance carrier, which was the limit of the policy. The plaintiff's economic and medical damages allegedly exceeded $20,000. Claiming that the compensable value of his injuries exceeded the amount of coverage available from the other driver's insurance policy, the plaintiff sought the monetary difference between the two amounts from the defendant, as underinsured motorist benefits. The defendant was self-insured for automobile liability coverage.

The issue to be decided is whether the defendant is obligated to provide uninsured or underinsured motorist benefits, as well as workers' compensation benefits, to an employee injured during the course of his employment notwithstanding General Statutes § 31-284. ² Section 31-284 provides that the Workers' Compensation Act is the exclusive remedy for claims of an employee against an employer, except if the employee has secured additional benefits by agreement with the employer. The plaintiff claims that he is entitled to uninsured motorist coverage pursuant to General Statutes § 38a-336(a)(2) (formerly § 38-175c[a], the uninsured motorist statute. ³ The defendant argues that it is exempt from paying the plaintiff underinsured motorist benefits, not because it is a self-insurer but because the plaintiff has received workers' compensation benefits as a result of the accident, which is the exclusive source of his benefits from the defendant, except as otherwise agreed. The defendant argues that any conflict between the uninsured motorist benefits coverage and the Workers' Compensation Act must be resolved in favor of the exclusivity provision of the latter. The defendant also claims that police patrol cars are not within the statutory category of vehicles that must have uninsured motorist coverage and that, therefore, the plaintiff is not entitled to compensation beyond his workers' compensation benefits. ⁴

We addressed the same issue in Ross v. New Haven, 19 Conn.App. 169, 561 A.2d 457, cert. granted, 212 Conn. 814, 565 A.2d 536 (1989). ⁵ In Ross, we held that the exclusive remedy provision of General Statutes § 31-284 bars an employee from seeking uninsured motorist benefits from his self-insured employer after having already received workers' compensation benefits, in the absence of an agreement with the employer for additional benefits. We conclude that Ross has been effectively overruled by Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 52, 112 L.Ed.2d 28 (1990). ⁶

We further conclude that a self-insured entity, in its capacity as an employer, is required to provide workers' compensation benefits, and, as an insurer, is required to provide uninsured motorist benefits. An employee's receipt of workers' compensation benefits from a self-insured employer does not, therefore, preclude his right to receive uninsured motorist benefits.

A review of the purposes and policies underlying workers' compensation benefits and uninsured motorist benefits indicates that they exist for separate and distinct reasons.

" 'The purpose of the workmen's compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.' Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). The Workers' Compensation Act 'compromise6 an employee's right to a common law tort action for work related injuries in return for relatively quick and certain compensation.' Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); see also 81 Am.Jur.2d, Workmen's Compensation § 2 (1976); 2A A. Larson [Workmen's Compensation Law (1983) ] § 72.61, p. 14-228.49; A. Larson, 'The Nature and Origins of Workmen's Compensation,' 37 Cornell L.Q. 206 (1952)." (Emphasis added.) Panaro v. Electrolux Corporation, 208 Conn. 589, 598-99, 545 A.2d 1086 (1988). It is undisputed that the Workers' Compensation Act, General Statutes § 31-275 et seq., is the exclusive remedy for injuries sustained by an employee "arising out of and in the course of his employment." Except as provided by statute, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished. Wesson v. Milford, 5 Conn.App. 369, 372, 498 A.2d 505, cert. denied, 197 Conn. 817, 500 A.2d 1337 (1985), citing Velardi v. Ryder Truck Rental Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979); see also Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989).

As with all insurance policies, an uninsured motorist policy "is a contract and the risks covered by the policy are determined by the intention of the parties as manifested in the contract." (Emphasis added.) Ryiz v. Federal Ins. Co., 5 Conn.App. 179, 182, 497 A.2d 1001 (1985). Uninsured motorist insurance covers the insured who is injured by an uninsured motorist. Every residual automobile liability policy must provide uninsured motorist coverage pursuant to General Statutes § 38a-336. General Statutes § 38a-370(b) (formerly § 38-326[b]. ⁷ The purpose of this insurance is to give the injured party the same protection as if he had been injured by an insured motorist. Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982); 7 Am.Jur.2d § 293. Under such a policy, an insurer pays the insured the amount that he is legally entitled to recover from the uninsured motorist. General Statutes § 38a-336; Regs., Conn. State Agencies § 38-175a-6(a); ⁸ Harvey v. Travelers Indemnity Co., supra, 247, 449 A.2d 157.

General Statutes (Rev. to 1985) § 38-327(c) (now § 38a-371) permits self-insurance provided a self-insurer files a form to continue to undertake "to pay basic reparations benefits and the liabilities covered by residual liability insurance and to perform all other obligations imposed by said sections...." Section § 38a-370(b) provides that "[r]esidual liability insurance shall afford coverage which satisfies the requirements of sections 38a-334 to 38a-336, 38a-338, and 38a-340 to 38a-343, inclusive." Section 38a-336 requires that automobile liability insurance policies must provide uninsured motorist coverage. Accordingly, self-insurers are required to provide uninsured motorist coverage.

Except for the fact that the defendant is self-insured, the facts in Wilson v. Security Ins. Co., supra, are identical to the facts in the case before us. Wilson involved a Woodbridge police officer who was injured by a hit and run driver while on duty. The defendant insurance company had in force a business automobile liability policy insuring vehicles owned by the town of Woodbridge. Id., 213 Conn. at 533-34, 569 A.2d 40. Although the principal issue involved whether the uninsured motorist coverage could be stacked, on cross appeal the plaintiff raised the issue of the relationship between uninsured motorist benefits and workers' compensation benefits. Id., at 533, 536, 569 A.2d 40.

In his cross appeal, the plaintiff argued that his damages were for pain, suffering, disability, and loss of earning capacity, none of which is recoverable under the workers' compensation laws. He, therefore, asserted that his damages had not been paid and, thus, no reduction in uninsured motorist coverage was required under § 38-175a-6(d) of the Regulations of Connecticut State Agencies. ⁹ Wilson v. Security Ins. Co., supra, 537, 569 A.2d 40. Because the court found that § 38-175a-6(d) did not quantify the kinds of damages that must be paid before a reduction could occur, it concluded that "[i]f damages are paid pursuant to the workers' compensation law, the uninsured motorist coverage may be reduced accordingly. General Statutes § [38a-336] contains no mandate that uninsured motorist coverage benefits may not be reduced." Id., at 538, 569 A.2d 40. Therefore, the amount received under uninsured motorist coverage may be reduced by the amount paid or payable under workers' compensation. Thus, the receipt of workers' compensation benefits does not preclude the receipt of uninsured motorist benefits.

The defendant acknowledged in its brief that "[i]t seems clear from the Connecticut General Statutes that self-insurers, like the City, are required to provide uninsured motorist benefits. As is asserted by the appellant, Conn. General Statute Section [38a-370(b) ] unambiguously requires that residual liability insurance satisfy the requirements of Section [38a-334] et seq, which includes provisions concerning uninsured motorist coverage. However a police patrol car does not fall within the statutory category of vehicles which require uninsured motorist coverage pursuant to Section ...