General Acc. Ins. Co. of America v. Powers, Bolles, Houlihan and Hartline, Inc., 17345

• Decision Date: 13 October 1998
• Docket Number: No. 17345,17345
• Citation: 719 A.2d 77,50 Conn.App. 701
• Court: Connecticut Court of Appeals
• Parties: GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA v. POWERS, BOLLES, HOULIHAN AND HARTLINE, INC.

Page 77

719 A.2d 77

50 Conn.App. 701

GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA v. POWERS, BOLLES, HOULIHAN AND HARTLINE, INC.

No. 17345.

Appellate Court of Connecticut.

Argued March 23, 1998.

Decided Oct. 13, 1998.

Daniel P. Scapellati, with whom, on the brief, was Joseph T. Sweeney, Hartford, for appellant (defendant).

William F. Corrigan, Hartford, for appellee (plaintiff).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and SCHALLER, JJ.

SCHALLER, Judge.

This appeal arises out of proceedings in the trial court following our decision in General Accident Ins. Co. v. Powers, Bolles, Houlihan & Hartline, Inc., 38 Conn.App. 290, 660 A.2d 369, cert. denied, 235 Conn. 904, 665 A.2d 901 (1995). The defendant, Powers, Bolles, Houlihan and Hartline, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, General Accident Insurance Company of America (General Accident), in the amount of $105,904.

On appeal, the defendant claims that the trial court improperly (1) concluded that its insurance application was deficient as a matter of law for the purpose of electing a lesser amount of uninsured-underinsured motorist coverage, and (2) failed to hold that the proper measure of damages was the difference between the premium that was actually charged to the policyholder for the coverage, and the premium that would have been charged for the higher amount of coverage. ¹ We reverse the judgment of the trial court.

The following relevant facts and procedural history are recited in General Accident Ins. Co. v. Powers, Bolles, Houlihan & Hartline, Inc., supra, 38 Conn.App. 290, 660 A.2d 369. "On January 19, 1990, the plaintiff and the defendant were parties to an insurance agency agreement. At that time, the defendant processed an application from Barbara Zakrzewski to the plaintiff, requesting automobile insurance for each of two automobiles owned by Zakrzewski. The application form utilized by the plaintiff was entitled the 'Acord Personal Automobile Application.' This form was completed by the defendant and signed by Zakrzewski. It requested $100,000 of liability coverage and $40,000 of uninsured-underinsured motorist coverage for each of her two automobiles. At the time of Zakrzewski's application for automobile insurance, General Statutes (Rev. to 1989) § 38-175c (now § 38a-336) ² required that every automobile liability insurance policy 'issued or renewed on and after July 1, 1984' was to have uninsured motorist coverage equal to the liability coverage of the policy 'unless the insured requests in writing a lesser amount.'

"On July 19, 1990, Zakrzewski's son, John Sliwka, was seriously injured in a motor vehicle accident when the car in which he was a passenger went off the road and overturned. Sliwka filed a claim against the operator's insurance carrier, which paid its policy limit of $20,000. Sliwka then filed a claim against the plaintiff for underinsured motorist coverage under Zakrzewski's policy. Sliwka alleged that there had been no written request by Zakrzewski for uninsured-underinsured motorist coverage in an amount less than the liability coverage, as required under § 38a-336. Because the policy provided for $100,000 of liability coverage, Sliwka filed a claim based on $100,000 of uninsured-underinsured motorist coverage for each of two vehicles. Sliwka's claim was for $180,000. ³

"After determining that the Acord application signed by Zakrzewski did not fulfill the statutory requirement of a written request for a lower limit of uninsured-underinsured motorist coverage, the plaintiff concluded that it owed Sliwka up to $200,000 in uninsured-underinsured motorist coverage. The plaintiff subsequently settled the claim with Sliwka for $160,904.

"Thereafter, the plaintiff filed a two count complaint against the defendant, alleging both breach of contract and negligence. The plaintiff alleged that the defendant was liable for failing to obtain a written request from Zakrzewski for uninsured-underinsured motorist coverage in an amount less than the liability coverage. The plaintiff claimed damages of $105,904, the amount by which the plaintiff's payment to Sliwka exceeded the intended coverage under the policy. ⁴

"The focal point of the evidence during trial was the Acord application form, which had been filled out by the defendant and signed by Zakrzewski on January 19, 1990. The primary liability issue was whether that Acord application satisfied the written request requirement imposed by § 38a-336. The defendant conceded that it had a duty to obtain a sufficient written request to comply with the statute, but it argued that the Acord application satisfied that statutory requirement. The plaintiff argued that the Acord application did not satisfy the statute and that the defendant should have utilized a separate, supplemental application form which the plaintiff had prescribed. ⁵ The jury returned a verdict in favor of the plaintiff on the breach of contract count, awarding $20 in damages, ⁶ and in favor of the defendant on the negligence count. The verdict was accepted and recorded on September 21, 1993." Id., at 291-94, 660 A.2d 369.

Both parties appealed to this court, claiming that the trial court improperly instructed the jury. We determined in the first appeal that the trial court's charge with respect to § 38a-336 was inadequate to guide the jury on issues of fact and impermissibly forced the jury to decide a material question of law. General Accident Ins. Co. v. Powers, Bolles, Houlihan & Hartline, Inc., supra, 38 Conn.App at 298, 660 A.2d 369. We remanded the case for a new trial. Id. Thereafter, the parties submitted the case to the trial court, first, for a determination of liability on the basis of summary judgment and, second, for a determination of the appropriate measure of damages if liability was found. The trial court granted summary judgment in favor of the plaintiff as to liability. Subsequently, the trial court directed the jury to return a verdict in favor of the plaintiff in the amount of $105,904. Additional relevant facts will be recited where necessary.

The defendant claims that the trial court, in ruling on the parties' cross motions for summary judgment, improperly concluded that the Acord application was deficient as a matter of law for the purpose of electing a lesser amount of uninsured motorist coverage. ⁷ The defendant argues that the trial court improperly interpreted the following phrase in General Statutes § 38a-336: "unless the insured requests in writing a lesser amount." The defendant argues that the trial court, after concluding that the phrase was unambiguous, improperly went on to consider the legislative history of the statute and to consider as "clarification" the elaborate new requirements contained in § 2 of No. 93-297 of the 1993 Public Acts (P.A. 93-297), ⁸ which was enacted subsequent to the transactions that occurred in this case. ⁹ The defendant contends that, in so doing, the trial court ignored the plain language of the statute in determining that the Acord Personal Automobile Application was deficient as a matter of law for the purpose of electing a lesser amount of uninsured-underinsured coverage.

The plaintiff argues that the trial court properly considered the legislative history of § 38a-336 and the language of P.A. 93-297, in determining that the Acord application did not constitute a request in writing for lesser coverage.

"Our standard of review of a trial court's decision to grant a motion for summary judgment is well established." Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 17-49, formerly § 384, requires that "[t]he judgment sought 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 test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A motion for summary judgment "is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985). Because this appeal involves questions of statutory construction, it presents a question of law, which we review de novo. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).

In addressing the issues in this case, we are initially guided by well defined principles of statutory interpretation. The court's "fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 664, 692 A.2d 803 (1997), quoting State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). Moreover, principles of statutory construction require the court to construe a statute in a manner that will not frustrate its intended purpose or lead to an absurd result. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). The court "must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve." Id., at 713, 595 A.2d 297. "When ... we are confronted with ambiguity in a statute, we look to 'its legislative history, its language, the purpose it is to serve, and the circumstances surrounding its enactment' to determine the legislative intent. Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982)." (Internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 769, 594...