Estavien v. Progressive Casualty Insurance Company

• Decision Date: 08 March 2019
• Docket Number: FBTCV176068795S
• Court: Connecticut Superior Court
• Parties: Ruby ESTAVIEN v. PROGRESSIVE CASUALTY INSURANCE COMPANY et al.

Ruby ESTAVIEN v. PROGRESSIVE CASUALTY INSURANCE COMPANY et al.

No. FBTCV176068795S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

March 8, 2019

UNPUBLISHED OPINION

OPINION

Elizabeth Stewart, J.

The defendant, Progressive Casualty Insurance Company, moves for summary judgment on count one of the Amended Complaint (No 108.00) filed by the plaintiff, Ruby Estavien. The element of this breach of contract claim that is at issue in this summary judgment motion is the contract term for underinsured motorist (UIM) limits. The defendant argues that summary judgment should enter in its favor on the ground that the UIM limit was $50, 000 because General Statutes § 38a-336(a)(2) does not apply to the commercial auto insurance policy it issued to the plaintiff’s grandfather, Paul Noel. Additionally, the defendant argues that even if that statute does apply, Noel signed an informed consent form for the lower limit of $50, 000 and is bound by that. The plaintiff argues that summary judgment should be denied because there are disputed issues of material fact as to whether that limit should be $1.5 million. More specifically, the plaintiff argues that (1) by operation of statute, the UIM limits shall equal the $1.5 million liability limits because the policy at issue is not a commercial fleet policy, and (2) the informed consent form Noel signed is not binding on him and the plaintiff because he did not make a "conscious, knowing and voluntary" election of lower limits for UIM coverage. See Opposition Memorandum (No. 138.00). For the reasons that follow, the court denies the motion for summary judgment.

MATERIAL FACTS

This defendant issued a series of commercial automobile insurance policies for Noel. Plaintiff’s Exhibits (Pl. Exs.) A-L (no. 139.00). Noel is the named insured on these policies. Pl. Ex. M (no. 140.00). Each policy insured one vehicle, a 2007 Chevrolet Express G3500. See, e.g., Pl. Ex. L (no. 139.00). The policy’s UIM Coverage Endorsement defines "insured" as "you or a relative" "if the named insured shown on the Declarations Page is a natural person." Pl. Ex. M. The policy further defines "relative" as "any person living in the household in which the named insured resides who is related to the named insured by blood, marriage, or adoption, including a ward or foster child. This term only applies if the named insured is a natural person." Pl. Ex. M. The insuring agreement provides: "we will pay for damages, ..., which an insured is legally entitled to recover from an owner or operator of an uninsured auto because of bodily injury: 1. Sustained by any insured; 2. Caused by an accident; and 3. Arising out of the ownership, maintenance, or use of an uninsured auto." Pl. Ex. M. There is no dispute that the plaintiff is a natural person or a relative of Noel and is thus covered as an insured of the policy.

Prior to March 31, 2015, the Progressive policies consistently had limits of $20, 000 each person/$40, 000 each accident for both liability and UIM coverage. Pl. Exs. A-J (no. 139.00). On March 31, 2015, Noel told co-defendant Sacoto that he needed $1.5 million in liability coverage to meet Connecticut Department of Transportation requirements for his business. Pl. Ex. O (no. 141.00). In response to that request, Sacoto made two calls to Progressive; these conversations were both recorded. In the first recording, Sacoto asked a representative of the defendant for the addition of a form MC 1641B to the policy and was advised that the liability limits had to be increased to $300, 000 combined single limits. Pl. Ex. P (no. 142.00). Progressive made changes to the policy that date to increase the liability limits to $300, 000 and to change the UIM limits to $50, 000 combined single limit. Pl. Ex. K (no. 139.00). There was no discussion of UIM coverage or the $50, 000 limit in the first recording. Pl. Ex. P (no. 142.00).

Later that same date, Sacoto called Progressive again and requested an increase in liability coverage to $1.5 million. Pl. Ex. Q (no. 142.00). When the defendant’s representative inquired about UIM coverage limits, Sacoto stated that those would remain at the $50, 000 combined single limit. Pl. Ex. Q.

Progressive issued new declaration pages reflecting first the $300, 000 liability limit and the $50, 000 underinsured motorist coverage limit, and then the $1.5 million liability limit and the $50, 000 underinsured motorist coverage limit Pl. Exs. K and L (no. 139.00). In addition, Progressive sent at least one informed consent form required by § 38a-336(a)(2) to Noel. Pl. Ex. R (no. 142.00). That informed consent form, which was written in English, explained uninsured and underinsured motorist coverage and included the following warning in letters that were bold, all capitals and underscored:

WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PUCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OF ANOTHER QUALIFIED ADVISOR .

Id. Directly below that warning was a signature line. Id. Noel signed and dated it April 8, 2015. Id. There is no evidence that Noel consulted with Progressive or Sacoto about this form. At his deposition, Noel testified that he did not know what UIM coverage is, that he was not comfortable speaking English, and that he had relied upon Sacoto for help with insurance documents in the past. Pl. Ex. O (no. 141.00).

The plaintiff was injured on March 30, 2016, after this change in the policy limits. Amended Complaint, ¶ 1. She recovered $120, 000 under the policies issued to her driver and the tortfeasor. Id., ¶¶ 21, 22. The costs associated with her injuries exceed that amount. Id., ¶ 23.

LEGAL ANALYSIS

I. SUMMARY JUDGMENT STANDARD

"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312, 77 A.3d 726 (2013). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ..." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).

II. THE INFORMED CONSENT REQUIREMENT APPLIED TO NOEL

Although the plaintiff brings a breach of contract claim, the UIM coverage terms of that contract are determined by statute. See Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 191, 602 A.2d 1007 (1992) (insurance contracts must be read to include provisions law requires to be included and excludes provisions law prohibits); see also Pl. Ex. M at ¶ 17. Section 38a-336(a)(1)(A) requires automobile liability insurance policies to include UIM coverage:

Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages because of bodily injury, including death resulting therefrom, from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages.

Section 38a-336(a)(2) requires that the limits for that UIM coverage equal the limits for liability coverage unless the policyholder provides written informed consent, in the form prescribed by statute, to lower limits:

Notwithstanding any provision of this section, each automobile liability insurance policy issued or renewed on and after January 1, 1994, shall 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 unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements that extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any

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