Curley v. The Phx. Ins. Co.

• Docket Number: AC 45054
• Decision Date: 01 August 2023
• Parties: DIANA CURLEY v. THE PHOENIX INSURANCE COMPANY
• Court: Connecticut Court of Appeals

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DIANA CURLEY
v.
THE PHOENIX INSURANCE COMPANY

No. AC 45054

Court of Appeals of Connecticut

August 1, 2023

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Argued February 1, 2023.

Procedural History

Action to recover under insured motorist benefits allegedly due under a commercial automobile liability insurance policy issued by the defendant, brought to the Superior Court in the judicial district of Fairfield, where the court, Welch, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Reversed; further proceedings.

MichaelS. Taylor, with whom were Brendan P. Levesque, and, on the brief, Peter C. Bowman, for the appellant (plaintiff).

James E. Wildes, for the appellee (defendant).

Bright, C. J., and Moll and Seeley, Js.

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OPINION

BRIGHT, C. J.

In this action to recover underinsured motorist benefits, the plaintiff, Diana Curley, appeals from the judgment of the trial court rendering summary judgment for the defendant, The Phoenix Insurance Company. The court concluded that the plaintiff was not an insured within the meaning of the commercial automobile liability insurance policy issued by the defendant to the plaintiffs employer, the University of Bridgeport (university), because she was not occupying a covered vehicle for purposes of the underinsured motorist coverage endorsement. On appeal, the plaintiff claims that the court improperly rendered summary judgment for the defendant because (1) the court's construction of the university's policy violates General Statutes § 38a-336 (a) (2), (2) the plaintiff is entitled to underinsured motorist benefits pursuant to the policy's business auto extension endorsement, and (3) denying the plaintiff underinsured motorist benefits would violate public policy. We agree with the plaintiffs first claim and, therefore, reverse the judgment of the trial court.

The record reveals the following undisputed facts, viewed in the light most favorable to the plaintiff, and procedural history. On November 16, 2017, the plaintiff was operating a rental vehicle on Route 15 in Trumbull on her way to an off campus event as part of her duties for the university when her vehicle was struck from behind by a vehicle operated by Jennifer N. Sandoval-Giannone (tortfeasor). The plaintiff suffered various injuries due to the collision and received $250,000 from the tortfeasor, which exhausted the tortfeasor's liability coverage under the tortfeasor's automobile insurance policy. At the time of the accident, the university's insurance policy provided underinsured motorist coverage with a limit of $1 million per person.^[1]

In 2020, the plaintiff initiated the underlying action against the defendant pursuant to § 38a-336, seeking underinsured motorist benefits pursuant to the university's insurance policy.^[2] The plaintiff alleged that the vehicle she was operating at the time of the accident was covered under the university's policy. The defendant moved for summary judgment on the plaintiffs complaint, asserting that the plaintiff was not occupying a "covered 'auto'" within the meaning of the "CONNECTICUT UNINSURED AND UNDERINSURED MOTORISTS COVERAGE" endorsement (underinsured motorist endorsement) to the university's policy. The underinsured motorist endorsement defines an insured differently depending on whether the named insured is an individual or a corporation. The defendant noted in its motion for summary judgment that, because the university is a corporation, an insured is defined as "[a]nyone 'occupying' a covered 'auto' or a temporary substitute for a covered 'auto.' The covered 'auto' must

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be out of service because of its breakdown, repair, servicing, 'loss' or destruction." The defendant argued that "the vehicle the plaintiff was in was not a covered automobile under the policy and the covered vehicles were not out of service." In support of its motion, the defendant submitted an affidavit from Cheryl Nyarady, an employee in the university's human resources department, in which she averred that the plaintiff was operating a rental vehicle at the time of the accident, that the university neither owned nor leased the vehicle occupied by the plaintiff, and that the vehicles owned or leased by the university were not out of service.^[3]

In the plaintiffs objection to the defendant's summary judgment motion, she asserted that she was an insured under the university's policy. She relied on the "LESSOR-ADDITIONAL INSURED AND LOSS PAYEE" endorsement (lessor endorsement), which modifies the insurance coverage provided under the "AUTO DEALERS COVERAGE FORM," the "BUSINESS AUTO COVERAGE FORM," and the "MOTOR CARRIER COVERAGE FORM," which are among the forms included in the policy. The coverage section of the lessor endorsement provides that "[a]ny leased auto' designated or described in the Schedule will be considered a covered 'auto' [the university] own[s] and not a covered 'auto' [the university] hire[s] or bor-row[s]." Paragraph E of the lessor endorsement, titled "Additional Definition," provides: "As used in this endorsement: 'Leased auto' means an 'auto' leased or rented to [the university], including any substitute, replacement or extra 'auto' needed to meet seasonal or other needs, under a leasing or rental agreement that requires [the university] to provide direct primary insurance for the lessor." The plaintiff asserted in her objection that (1) she was an insured under the policy because the university had authorized her to rent the vehicle for use in performing her job duties, (2) allowing an employer and insurer to conspire to deny employees statutorily required coverage would violate public policy, and (3) because General Statutes § 14-112 requires a driver to maintain minimum amounts of liability insurance for any vehicle, including rental vehicles,^[4] the university's policy, by its terms, provides coverage for the rental vehicle in the present case.

In its reply memorandum to the plaintiffs objection to its motion for summary judgment, the defendant noted that, although the lessor endorsement states that it modifies the insurance coverage provided under three specific forms, it does not state that it modifies the insurance coverage provided under the underinsured motorist endorsement. Therefore, according to the defendant, the lessor endorsement was irrelevant to whether the plaintiff was an insured for the purposes of making a claim for underinsured motorist coverage. The defendant maintained that the underinsured motorist endorsement is unambiguous and that the plaintiff

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is not an insured thereunder.

Following oral argument on the defendant's motion, the court, on May 28, 2021, rendered summary judgment for the defendant. After setting forth the parties' respective positions, the court reasoned "that the language of the insurance policy as to the issues raised in this case is clear and unambiguous. The insurance policy is titled 'Commercial Automobile.' The declaration provides that '[t]he Commercial Automobile Coverage Consists of these Declarations and the Business Auto Coverage Form shown below.' The declaration further identifies the form of business of the insured as a 'Corporation.' The declaration and 'Business Auto Coverage Form' provide that uninsured and underinsured motorist coverage is provided to 'Owned "Autos" Only: only those "autos" [the university] own[s] . . . .'

"The [underinsured motorist] endorsement provides that 'this endorsement modifies insurance provided under the following . . . BUSINESS AUTO COVERAGE FORM .... With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement' The endorsement modifies the uninsured and underinsured [motorist] coverage described above as follows: where the named insured is a corporation, the insured is' [a]ny-one "occupying" a covered "auto" or a temporary substitute for a covered "auto." The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction.'

"The plaintiffs reliance on the [lessor] endorsement to support the argument that the insurance policy provided insurance to the plaintiff based upon the facts of this case is misplaced. The court finds that the language of this endorsement is plain and unambiguous. The endorsement specifically provides that '[w]ith respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement.' The endorsement does not modify the uninsured and underinsured [motorist] coverage.

"Based upon the clear and unambiguous language of the insurance policy, the plaintiff was not an insured and is not entitled to make a claim for underinsured motorist benefits from the defendant." (Footnotes omitted.)

On June 17, 2021, the plaintiff filed a motion seeking reargument and reconsideration pursuant to Practice Book § 11-12 (motion to reargue). In that motion, the plaintiff claimed that the court's interpretation of the policy violated § 38a-336 (a) (2), which requires that an automobile liability insurance policy "provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law," and overlooked the "BUSINESS

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AUTO EXTENSION ENDORSEMENT," which broadens the definition of insured in the business auto coverage form.^[5]

The defendant filed an objection to the motion to reargue, arguing that the plaintiff failed to raise her arguments in her objection to its motion for summary judgment and that she should not be permitted to raise them for the first time in a motion to reargue. Alternatively, the defendant argued that both of the plaintiffs arguments failed on the merits. On July 16, 2021, the court denied the plaintiffs motion to reargue without comment and sustained the defendant's objection.^[6]...