Dixon v. Empire Mut. Ins. Co.

• Decision Date: 08 March 1983
• Citation: 189 Conn. 449,456 A.2d 335
• Parties: Carlton F. DIXON et al. v. EMPIRE MUTUAL INSURANCE COMPANY et al.
• Court: Connecticut Supreme Court

Page 335

456 A.2d 335

189 Conn. 449

Carlton F. DIXON et al. v. EMPIRE MUTUAL INSURANCE COMPANY et al.

Supreme Court of Connecticut.

Argued Dec. 3, 1982.

Decided March 8, 1983.

Philip R. Shiff, New Haven, for appellant (named defendant).

Peter A. Treffers, New Haven, with whom, on the brief, was Benedict Moss, New Haven, for appellees (plaintiffs).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The present case was tried and decided prior to our decision in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982). This appeal raises the issue of whether the trial court erred in holding that the insured plaintiffs could, under the terms and conditions of their insurance policy, "stack" uninsured motorist coverage where their insurance policy covered two automobiles. Even if we were to find that the terms of the policy prohibited the stacking of uninsured motorist coverage, we held in Nationwide that General Statutes § 38-175c, and the pertinent regulations promulgated thereunder, precluded any such terms and conditions from preventing the stacking of benefits. Therefore, we affirm the decision of the trial court permitting stacking.

This action arose out of a motor vehicle accident that occurred on June 19, 1975, in which the plaintiff, Carlton Dixon, was struck and injured by an uninsured motorist. ¹ Carlton Dixon was a minor at the time of the accident, so this action was instituted by Rosa F. Dixon, the duly appointed guardian of the estate of Carlton Dixon. Carlton Dixon was "insured" under the terms and conditions of the insurance policy issued by the defendant, Empire Mutual Insurance Company (Empire Mutual), to Dematraious Dixon, the plaintiff's father. The policy covered two automobiles, a 1970 Buick and a 1971 Mercury, ² for which the plaintiff's father paid separate premiums to provide coverage on both. The policy included a provision protecting against injuries sustained in any accident with an uninsured motorist. The premium for uninsured motorist coverage on the Buick was $2, while for the Mercury it was $1. Empire Mutual has already paid the plaintiffs $5000 for basic reparations benefits, the limit of that coverage provided under the terms of the Basic Reparations Endorsement contained in the policy.

Before the trial court, Empire Mutual contended that the absolute ceiling for uninsured motorist coverage was $20,000 for each person injured, regardless of the number of vehicles covered by the policy. The plaintiffs contended that the amount of protection was $20,000 for each vehicle and, because Dematraious Dixon had two vehicles, the total amount of coverage provided by the policy was $40,000. The trial court agreed with the plaintiffs and, accordingly, awarded them $35,000. ³

The insurance policy issued by Empire Mutual is divided into four parts: Part I is entitled "Liability"; Part II is entitled "Expenses for Medical Services"; Part III is entitled "Physical Damage"; and Part IV covers "Protection Against Uninsured Motorists." Following these sections is a set of "Conditions." Condition number 4, which specifically applies only to Parts I, II and III, covers situations with "Two or More Automobiles." ⁴ It provides, in relevant part, as follows: "When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each ...."

The applicable provision in Nationwide, unlike the provision contained in Condition 4 of the policy issued by Empire Mutual, explicitly prohibited stacking of uninsured motorist coverage in the event that two or more cars were insured under the same policy. Nationwide Ins. Co. v. Gode, supra, 398, 446 A.2d 1059. We held there that because the applicable regulations, § 38-175a-b ⁵ of the Regulations of Connecticut State Agencies, did "not expressly authorize a limitation of payment provision such as that contained in this insurance policy, the clause cannot operate to prevent the defendants [the insureds] from stacking their coverages as they have tried to do." Nationwide Ins. Co. v. Gode, supra, 400, 446 A.2d 1059. The claimed effect of the pertinent provisions of the respective insurance policies in Nationwide and in this case, i.e., no stacking, is the same. Our analysis in Nationwide applies here and need not be repeated. Therefore, regardless of whether Empire Mutual's claimed interpretation of Condition 4 is correct, it cannot act to prohibit the plaintiffs from stacking the uninsured motorist coverage provided by the policy.

Furthermore, in the present case, coverage for the 1971 Mercury was added to the policy over five months after the policy was issued on the 1970 Buick. It was separately listed in the policy, and a separate premium was paid by Dematraious Dixon. In such circumstances, we have noted that it is particularly appropriate to presume that such a policy entitled the insured to stack uninsured motorist coverage. See Safeco Ins. Co. v. Vetre, 174 Conn. 329, 334-35, 387 A.2d 539 (1978), and cases cited therein; see also Nationwide Ins. Co. v. Gode, supra, 187 Conn. 396, 446 A.2d 1059, and cases cited therein; Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 450-51, 370 A.2d 1006 (1976).

There is no error.

In this opinion PETERS, PARSKEY and GRILLO, JJ., concurred.

SHEA, Associate Justice (concurring).

I disagree with the rationale followed by the majority in affirming the judgment of the trial court, but, nevertheless, reach the same result in construing the language of the policy.

The majority find it unnecessary to consider the language of the policy because they read an insurance regulation; Regs., Conn. State Agencies § 38-175a-6(d); ¹ to mandate stacking of uninsured motorist coverage limits where two or more vehicles are included in the same policy, regardless of unambiguous provisions to the contrary. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 398-400, 446 A.2d 1059 (1982). I disagree with that interpretation of the regulation for the reasons set forth in my dissenting opinion in that case. Nationwide Ins. Co. v. Gode, supra, 403-404, 446 A.2d 1059 (Shea, J., dissenting). I continue to view § 38-175a-6(d) as requiring only that the statutory minimum for uninsured motorist coverage of $20,000 per person not be subject to reduction except in instances not pertinent to this case. I fail to comprehend the necromancy employed in parlaying this statutory minimum coverage requirement of $20,000 per person into twice that amount simply by virtue of the fact that the same coverage is extended to persons riding in a second vehicle listed in the policy. It is inconceivable that the regulation was intended to mandate uninsured motorist limits in direct proportion to the number of vehicles a person is affluent enough to own and insure. The concern of the regulation is that there be no less than $20,000 of coverage for each person regardless of the number of vehicles with respect to which such coverage may apply.

In concluding that the stacking of uninsured motorist coverage limits was called for by the terms of the policy, the trial court relied upon the exclusion of such coverage from the applicability of Condition 4 of the policy. This condition provides that "[w]hen two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each," but restricts this provision to Part I (Liability), Part II (Expenses for Medical Services) and Part III (Physical Damage). Since the trial court construed this provision as intended to prevent stacking of limits with respect to Parts I, II and III of the policy, application of the maxim, inclusio unius est exclusio alterius, indicated the contrary intention with respect to Part IV (Protection against Uninsured Motorists). ² The court relied upon a case where the policy contained a condition identical to Condition 4, in which it was held that the omission of uninsured motorist coverage from its scope implied that intra-policy stacking of such limits was intended. Goodman v. Continental Casualty Co., 347 A.2d 662 (Del.Super.1975).

The defendant argues that in Safeco Ins. Co. v. Vetre, 174 Conn. 329, 333-35, 387 A.2d 539 (1978), this court relied upon language identical to that contained in Condition 4 in arriving at the conclusion that intra-policy stacking of limits for uninsured motorist coverage was required. Such a provision was the basis for the conclusion reached in Part II of Safeco that, where a single policy furnished uninsured motorist coverage in respect to more than one vehicle, the effect should be the same as if separate policies, one for each vehicle, had been issued. We had decided in Part I of Safeco, where two separate policies were involved, that the "other insurance" clause of one policy could not effectuate a reduction of uninsured motorist limits available under another policy, because § 38-175a-6(d) of the regulations made such a clause inoperative for uninsured motorist coverage. It followed, therefore, that the conclusion reached in Part I, that stacking of such limits was called for where separate policies were involved, should also apply in Part II, where two vehicles were insured under a single policy which contained a separability clause like that of Condition 4.

Such a clause would not produce the same result with respect to coverage for liability, physical damage or medical expenses, because there is no regulation like § 38-175a-6(d) which can be deemed to make the "other insurance" clause inapplicable to those coverages. The separate policy clause would militate against any contention that the reduction of liability intended to be effectuated by such a clause should be restricted to "other insurance" provided by a different insurance policy. See Goodman v. Continental Casualty Co., supra, 665-66. Contrary to the claim of the defendant that stacking is indicated by a separability clause, the substantial weight of authority holds ...