Garcia v. City of Bridgeport

• Decision Date: 11 September 2012
• Docket Number: No. 18460.,18460.
• Citation: 306 Conn. 340,51 A.3d 1089
• Court: Connecticut Supreme Court
• Parties: Carlos GARCIA v. CITY OF BRIDGEPORT.

306 Conn. 340

51 A.3d 1089

Carlos GARCIA

v.CITY OF BRIDGEPORT.

No. 18460.

Supreme Court of Connecticut.

Argued Nov. 28, 2011.

Decided Sept. 11, 2012.

Jon Berk, Hartford, with whom was Robert P. Cohen, Bridgeport, for the appellant (plaintiff).

Betsy A. Edwards, with whom, on the brief, were Arthur C. Laske III, Fairfield, and Christopher Trueax, legal intern, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.^*

EVELEIGH, J.

The plaintiff in this declaratory judgment action, Carlos Garcia, appeals from the judgment of the trial court rendered in favor of the defendant, the city of Bridgeport, determining the limits of the defendant's underinsured motorist coverage ¹ in its capacity as a self-insurer to be the statutory minimum of $20,000 per person and $40,000 per occurrence on the basis of a purported request by the defendant pursuant to General Statutes § 38a–336 (a)(2)² for lesser coverage.³ This case arises out of a motor vehicle accident caused by an underinsured motorist in which the plaintiff, an employee of the defendant, sustained injuries while operating a private passenger motor vehicle owned by the defendant while acting within the scope of his employment. The primary issue raised by the plaintiff in this appeal is whether a self-insured municipality, by virtue of its unlimited liability, is deemed to provide unlimited underinsured motorist coverage in the absence of a preaccident writing requesting lesser coverage limits in conformity with § 38a–336 (a)(2). We conclude that it does not and, accordingly, we affirm the judgment of the trial court.

The relevant facts and procedural history are undisputed. On February 2, 2004, the plaintiff was seriously injured in a motor vehicle accident caused by a third party while acting within the scope of his employment. The tortfeasor's commercial automobile liability insurer paid the plaintiff $20,000, which was the tortfeasor's per person liability coverage limit. The plaintiff's commercial automobile liability insurer paid the plaintiff an additional $30,000, which represented the plaintiff's per person underinsured motorist coverage limit of $50,000 less offset expressly provided for under the policy of any amount paid by the tortfeasor's insurer. The plaintiff sought coverage for his remaining damages from the defendant pursuant to its obligation to provide underinsured motorist coverage pursuant to § 38a–336 (a)(1).⁴ The defendant, which had elected to self-insure pursuant to General Statutes §§ 38a–371 (c)⁵ and 14–129, ⁶ denied the plaintiff's claim. The defendant cited a $20,000 per person limit to the underinsured motorist coverage under its self-insurance plan and an offset under that plan of any amount paid by a claimant's insurer and a tortfeasor's insurer. In this case, because the plaintiff's $50,000 recovery exceeded the coverage limit of the defendant's plan, the defendant contended that the plaintiff could not recover against it.

In response, the plaintiff initially brought an action seeking damages in Superior Court against the defendant to recover for his personal injuries sustained in the motor vehicle accident, claiming he was due underinsured motorist benefits. In support of his claim, the plaintiff contended that a self-insurer provides unlimited liability coverage and that, in the absence of an insured's written request for a lesser coverage amount in accordance with § 38a–336 (a)(2), a “parity” clause in the underinsured motorist coverage statute requires coverage in the same amount as liability coverage. The plaintiff further contended that, since the defendant's self-insurance plan did not reflect any request for a lesser amount, coverage was not subject to any limit. The defendant filed a special defense, claiming that its self-insurance plan did include a request for a lesser amount of, specifically, the statutory minimums of $20,000 per person and $40,000 per occurrence. The plaintiff subsequently brought a declaratory judgment action against the defendant to determine the extent of its underinsured motorist coverage.

After these cases were consolidated, the defendant moved for summary judgment. The trial court rendered judgment in favor of the plaintiff on his declaratory judgment action only, concluding that the underinsured motorist coverage provided by the defendant's self-insurance plan was limited to $20,000 per insured and $40,000 per occurrence, but that such coverage was not offset by any payment to the plaintiff by other insurers. In reaching its conclusions on both of these issues, the trial court relied on Piersa v. Phoenix Ins. Co., 273 Conn. 519, 526, 871 A.2d 992 (2005), which required preaccident documentation of permissive offsets to underinsured motorist coverage under a self-insurance plan. Applying its construction of Piersa, the trial court determined that the defendant had produced a document, created before the accident, requesting underinsured motorist coverage limits of $20,000 per insured and $40,000 per occurrence. The document, dated August 12, 1982, and labeled “Application for Self–Insurance Permit” (application), had been filed with the commissioner of insurance pursuant to General Statutes (Rev. to 1981) § 38–327(c), the predecessor statute to § 38a–371 (c).⁷ The trial court further found that no preaccident document established the election of any permissive offsets to the underinsured motorist coverage provided under the self-insurance plan, including the offset for any proceeds paid to the plaintiff by other insurers. Regarding the action for damages, the trial court denied the defendant's motion for summary judgment, concluding that, because the defendant could not offset its underinsured motorist liability by the proceeds paid to the plaintiff by other insurers, the trial court could not render summary judgment for the defendant. The plaintiff appealed from the judgment rendered in the declaratory judgment action to the Appellate Court, and we transferred the appeal to this court. ⁸

On appeal, the plaintiff claims that the trial court improperly determined that the underinsured motorist coverage provided by the defendant's self-insurance plan was limited to the statutory minimum. The plaintiff challenges the trial court's determination that the defendant has “sufficiently shown that it has maintained [underinsured] motorist coverage in the amount of $20,000/ $40,000 since 1982.” ⁹ In support of his claim, the plaintiff argues that, as a municipal self-insurer, the defendant provides unlimited motor vehicle liability coverage for the damages caused by its employees when operating its private passenger motor vehicles. Accordingly, because in the plaintiff's view, the defendant failed to document any request for lesser underinsured motorist coverage pursuant to § 38a–336 (a)(2) before the accident, it must provide unlimited underinsured motorist coverage. Further, the plaintiff maintains that the application relied on by the court to establish the defendant's request for lesser underinsured motorist coverage limits does not address the issue of coverage limits at all.¹⁰ In response, the defendant contends that the trial court made a factual finding, entitled to deferential review under a clearly erroneous standard, that the application was a request for underinsured motorist coverage of the statutory minimum that remained effective through the date of the accident. The defendant further claims that, even in the absence of a request for lesser underinsured motorist coverage, a self-insurer provides only the statutory minimum underinsured motorist coverage.

Although we agree with the plaintiff that the application relied upon by the trial court cannot be construed as a request for lesser underinsured motorist coverage pursuant to § 38a–336 (a)(2), we agree with the defendant that, even in the absence of a request for lesser underinsured motorist coverage, a self-insurer's underinsured motorist coverage limits are those provided by General Statutes § 14–112. We conclude that it would be counterintuitive to require a self-insurer to make a request for lesser coverage pursuant to § 38a–336 (a)(2), because such treatment would be inconsistent with substantive differences between self-insurance and commercial insurance. Section 38a–336 (a)(2) is a notice statute requiring the insurer to obtain the informed consent of the insured, and a self-insurer is both the insurer and the insured, so a construction of this statute that requires an equivalent notice by a self-insurer and a corresponding request by a self-insured is untenable and unnecessary to protect the insured. A self-insurer under our motor vehicle insurance law is a party that has, inter alia, agreed to provide the statutory minimum underinsured motorist coverage. Therefore, we affirm the judgment of the trial court, albeit under different reasoning.

As an initial matter, we must resolve a dispute between the parties over the standard of our review of the trial court's determination that the application was a request for the lesser coverage of the minimum statutorycoverage limits. The plaintiff contends that this determination was an exercise of statutory construction, and therefore is subject to plenary review. See Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 403–404, 891 A.2d 959 (2006) (determining whether trial court properly concluded that written request by plaintiff's employer for reduction in underinsured motorist coverage under its commercial fleet policy was ineffective because certain language in informed consent form in which request was made was not in twelve point type as required by statute). The defendant urges us to conclude that this determination was a “resolution of [a] factual [dispute] that underlie[s] [a] coverage issue” and that, accordingly, the trial court's conclusion is reviewable subject to the clearly erroneous standard. National...