Chmielewski v. Aetna Cas. and Sur. Co.

Decision Date14 May 1991
Docket NumberNo. 14100,14100
Citation218 Conn. 646,591 A.2d 101
CourtConnecticut Supreme Court
PartiesElizabeth A. CHMIELEWSKI, Executrix (ESTATE OF Robert E. CHMIELEWSKI) v. AETNA CASUALTY AND SURETY COMPANY. AETNA CASUALTY AND SURETY COMPANY v. Elizabeth A. CHMIELEWSKI, Executrix (ESTATE OF Robert E. CHMIELEWSKI).

Arnold J. Bai, Bridgeport, with whom, on the brief, was Philip F. von Kuhn, Ridgefield, for appellee-appellant Aetna Cas. and Sur. Co.

Before PETERS, C.J., and CALLAHAN, GLASS, HULL and BORDEN, JJ.

BORDEN, Associate Justice.

The plaintiff, Elizabeth A. Chmielewski, executrix of the estate of Robert E. Chmielewski, appeals, and the defendant, Aetna Casualty and Surety Company, cross appeals from the judgment of the trial court that: (1) modified an underinsured motorist coverage arbitration award in favor of the plaintiff; and (2) remanded to the same arbitration panel an issue of coverage under an excess coverage policy that the arbitrators had not determined. 1 On appeal, the plaintiff claims that the trial court: (1) violated her constitutional rights to due process of law and access to the courts by failing to undertake a de novo review of certain factual determinations of the arbitrators; and (2) improperly concluded that stacking was not available and accordingly The following facts are not disputed. On April 14, 1987, the decedent was killed when a motorcycle owned and operated by him collided with a pickup truck. The pickup truck carried $100,000 of liability insurance, which was paid in full to the plaintiff. The decedent's motorcycle was insured by Northland Insurance Company, and carried uninsured motorist coverage limits of $20,000 per person and $40,000 per occurrence.

                modified the award by reducing it from $1,400,000 to $500,000.   On cross appeal, the defendant claims that the trial court improperly:  (1) ruled that a certain exclusion from coverage provision of the policy was invalid and, therefore, did not bar the plaintiff's claim for underinsured motorist [218 Conn. 649] coverage;  (2) awarded interest to the plaintiff on the award retroactive to the date of the award;  and (3) remanded the case to the arbitrators.   We affirm in part and reverse in part
                

The decedent, the sole proprietor of a plumbing and heating business, maintained a policy, entitled "Business Auto Policy," issued by the defendant covering nine motor vehicles that were separately listed on the policy and for which separate premiums were charged. The policy provided $500,000 of uninsured and underinsured motorist coverage for each vehicle. The total annual premium for uninsured and underinsured motorist coverage for the nine vehicles was $262. The named insured on the policy was "R E Chmielewski Plumbing & Heating ATIMA." 2 The motorcycle was not listed as a covered vehicle under the policy. The decedent also maintained an excess liability policy with the defendant in the amount of $2,000,000.

The parties proceeded to compulsory arbitration pursuant to General Statutes (Rev. to 1989) § 38-175c 3 before a panel of three arbitrators. The plaintiff claimed that she was entitled to stack the $500,000 of underinsured motorist coverage for each of the nine listed vehicles, for a total coverage of $4,500,000 under both the business auto policy and the excess policy. The defendant denied both coverage and stacking on the bases that: (1) a particular exclusionary provision in the policy applied to the plaintiff's claim; (2) § 38-175c(a)(1) authorized the policy exclusion in question; (3) the policy was a fleet policy to which stacking was not applicable; and (4) the excess policy did not apply because the decedent's motorcycle was specifically endorsed off of its coverage.

The arbitration proceedings, which began on October 24, 1988, and concluded on October 2, 1989, constituted nine days of hearings that were transcribed by a stenographer. Since the arbitration provision of On November 20, 1989, a majority of the arbitrators decided that there was coverage under the business auto policy and that stacking was permitted thereunder. They found that the policy was a "business automobile policy [that] insured nine vehicles with separate premiums paid for underinsured coverage on each vehicle." The arbitrators awarded damages to the plaintiff in the gross amount of $1,666,650, reduced by 10 percent for the comparative negligence of the decedent to $1,500,000, and further reduced by the $100,000 recovered from the tortfeasor's insurer, for a net award of $1,400,000. This amount was further reduced because the arbitrators determined that Northland had $20,000 of underinsured motorist coverage and that Northland had agreed to be bound by the arbitrators' decision regarding the extent of its payment. The arbitrators also determined that Aetna and Northland would share the credit of $100,000 proportionately to their coverage. 5 Because the award was within the stacked coverage provided by the business auto policy, the arbitrators did not address the issue of coverage under the excess policy.

[218 Conn. 651] the policy did not set a time limit within which the arbitrators had to render their decision, the parties agreed to extend to December 1, 1989, the thirty day time period for rendering an arbitration award provided by General Statutes § 52-416. 4

The plaintiff moved to confirm and the defendant moved to vacate the award. The record supplied to the trial court consisted of the arbitration agreement, the parties' written extension of time for the arbitrators to render their award, and the applications to confirm and vacate. After the parties argued the cross applications to the trial court, Stodolink, J., but before the trial court had rendered its decision, the plaintiff moved to supplement the record "to allow additional evidence on the issue of ownership of the vehicles listed on the subject policy." The basis of this motion was that, after the arguments on the cross applications, this court decided Cohn v. Aetna Ins. Co., 213 Conn. 525, 569 A.2d 541 (1990), and Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, --- U.S. ----, 111 S.Ct. 52, 112 L.Ed.2d 28 (1990), where we held that stacking was not available under a policy "covering a number of vehicles owned by a business...." Cohn v. Aetna Ins. Co., supra, 213 Conn. at 530, 569 A.2d at 532; Wilson v. Security Ins. Co., supra, 213 Conn. at 535, 569 A.2d 40. The plaintiff argued that she was entitled to a de novo review of the arbitrators' factual determination that the policy in question was a business automobile policy, and that she was entitled to introduce evidence to establish that it was not such a policy.

On July 13, 1990, the trial court issued its memorandum of decision on the plaintiff's motion to supplement the record and on the cross applications to confirm and vacate the award. With respect to the plaintiff's motion to supplement the record, the court recognized that under American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987), it was required to undertake a de novo review of legal questions. It also concluded that it was "under no binding precedent to conduct a de novo review of the factual finding by the arbitrators that the policy in question is one issued to a business. The court is satisfied by the record that the policy in On the merits of the applications, the court rejected the defendant's claims that the policy exclusion and General Statutes (Rev. to 1989) § 38-175c(a)(1)(A) precluded coverage. The court also determined that, based on the arbitrators' finding, the policy was a fleet policy and that stacking of coverage was barred by Cohn v. Aetna Ins. Co., supra. Thus, the court ruled, "[t]he arbitration award should be modified to reflect the maximum underinsurance coverage of $500,000 available [for one vehicle] under the business auto policy, less applicable credits and a 10 percent reduction for decedent's comparative negligence." With respect to the credit applicable as a result of the tortfeasor's insurer's payment of $100,000, the court indicated that "the most reasonable disposition of [that payment] is to have Aetna and Northland share the credit of $100,000 proportionately to their coverage[s]. While this manner of disposition is reasonable, this issue must be remanded to the arbitrators to make appropriate adjustments based on a maximum coverage under the Aetna policy of $500,000."

                question is a business automobile policy."   The court accordingly denied the plaintiff's motion to supplement the record
                

The court also granted the plaintiff's request for interest on the award retroactive to the date of the award, pursuant to General Statutes § 37-3a. 6 Further, the court determined that the issue of coverage under the excess policy that the arbitrators had not determined "must be remanded to the arbitration panel for their determination." Thereafter, judgments were rendered in conformity with the decision. The parties appealed and cross appealed to the Appellate Court, and we transferred the cases to this court pursuant to Practice Book § 4023.

I STANDARD OF REVIEW

The plaintiff claims that the court improperly: (1) failed to undertake a de novo review of the factual finding of the arbitrators that the policy in question was a policy issued to a business; and (2) refused to permit her to supplement the trial court record in order to demonstrate that the policy in question was not a fleet insurance contract. Since these two claims are closely related, and since the plaintiff offers similar constitutional bases for each of the claims, we consider them together.

The plaintiff argues that the court's failure to undertake a de novo review of the arbitrators' factual finding that the policy in question was issued to a business 7 deprived the plaintiff "of those...

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