Hernandez v. Progressive Direct Insurance Co.

• Decision Date: 02 December 2019
• Docket Number: CV186083541S
• Court: Connecticut Superior Court
• Parties: Enrique Hernandez v. Progressive Direct Insurance Company

Enrique Hernandez v. Progressive Direct Insurance Company

No. CV186083541S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

December 2, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#105)

Wilson, J.

FACTS

On August 8, 2018, the plaintiff, Enrique Hernandez, filed a complaint against the defendant, Progressive Direct Insurance Company. The plaintiff alleges the following facts in the complaint. The plaintiff, through his family, was insured by way of a motor vehicle insurance policy issued by the defendant, which provided for $100,000 per person in uninsured/underinsured motorist coverage (policy). On May 19 2017, the plaintiff was operating his scooter on Coe Avenue in Meriden, Connecticut, and Lisa Beck was operating a motor vehicle in the opposite direction when she negligently collided with the plaintiff. As a result of that incident the plaintiff suffered injuries and incurred expenses. Lisa Beck’s vehicle carried $20,000 of liability insurance, which has been exhausted. The plaintiff alleges that the defendant issued a policy to his family which covered the plaintiff in the event he sustained injuries in a collision caused by an underinsured motorist, covering the period, including the date of the accident, May 19, 2017, and which provided $100,000 in underinsured motorist coverage. The plaintiff further alleges that due to the insufficiency of the Beck policy to adequately compensate him for his injuries and losses, the plaintiff timely filed a notice of claim with the defendant to recover benefits under the underinsured motorist coverage portion of the policy. The defendant wrongfully declined to pay benefits to the plaintiff under the policy.

On October 23, 2018, the defendant filed an answer whereby it admits the existence of the policy and that it has declined coverage, denies it owed a duty to the plaintiff, and leaves the plaintiff to his proof as to the remaining allegations. The policy issued by the defendant was issued to Haydee Santiago as a named insured with Herberto Hernandez as a household resident. Santiago and Hernandez are the plaintiff’s parents. FTR, August 5, 2019. The policy lists three covered vehicles, a 2013 Toyota Venza, a 2006 Toyota Camry and a 2001 F150. The plaintiff’s scooter is not listed on the policy.

Additionally, the defendant’s answer alleges three special defenses, including that the uninsured/underinsured motorist coverage portion of the policy contains exclusions that preclude the plaintiff’s claim. The plaintiff, on July 30, 2019, filed a reply to the defendant’s special defenses and denies that the exclusions are applicable.

On January 30, 2019, the defendant moved for summary judgment on the ground that there is no genuine issue of a material fact that the policy contains exclusions that preclude the plaintiff from recovery under the uninsured/underinsured portion of the policy as a matter of law. Specifically, the defendant argues that the plaintiff was operating a motor vehicle at the time of the accident that he owned, was available for his regular use, and was not a covered motor vehicle under the policy. The defendant attaches the following exhibits: an uncertified copy of the policy’s declarations page; a certified copy of the policy; an uncertified copy of the defendant’s request for admissions, to which the plaintiff did not respond; and an uncertified copy of the Connecticut Uniform Police Crash Report (report) from the accident.^[1] The plaintiff filed an objection to the defendant’s motion for summary judgment on July 30, 2019, and argues that the coverage exclusion provisions set forth in the policy by the defendant do not apply in this situation because the plaintiff’s scooter is not considered a motor vehicle that is owned or operated by the plaintiff under the exclusions portion of the policy. The plaintiff attaches as exhibits unauthenticated and/or uncertified information regarding the registration of motor-driven cycles and motor scooters.^[2] Oral argument was heard on the motion at short calendar on August 5, 2019. The court requested additional briefing as to other states’ holdings regarding whether a scooter is a motor vehicle with respect to uninsured/underinsured motorist policies. These briefs were filed by both the plaintiff and the defendant on August 19, 2019, and August 21, 2019, respectively.

DISCUSSION

"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." (Internal quotation marks omitted.) Graham v. Commissioner of Transportation, 330 Conn. 400, 414-15, 195 A.3d 664 (2018). "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.) Doe v. West Hartford, 328 Conn. 172, 191, 177 A.3d 1128 (2018). "A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).

"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 ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).

"To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... 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.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019).

"The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents ... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Parnoff v. Aquarion Water Co. of Connecticut, 188 Conn.App. 153, 165, 204 A.3d 717 (2019).

"The court’s task in reviewing the parties’ submissions is not to decide any factual issues they raise, but only to decide if, in fact, they raise any such factual issues, as by demonstrating a potential inconsistency or conflict in the admissible evidence concerning one or more facts upon which the movant’s right to judgment depends. In the event the court determines that there is such a genuine issue of material fact, it must deny the motion for summary judgment and leave resolution of the issue to the trier of fact at trial, who will hear and evaluate the evidence on both sides of that issue firsthand before deciding it." (Emphasis in original.) Teodoro v. Bristol, 184 Conn.App. 363, 374, 195 A.3d 1 (2018).

Moreover, the interpretation of an insurance contract presents a question of law for which summary judgment may be appropriate. See Misiti, LLC v. Travelers Property Cas. Co. of America, 308 Conn. 146, 154, 61 A.3d 485 (2013). " ‘It is the function of the court to construe the provisions of the contract of insurance ... The [i]nterpretation of an insurance policy ... involves a determination of the intent of the parties as expressed by the language of the policy ... [including] what coverage the ... [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy ... [A] contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy ... [giving the] words ... [of the policy] their natural and ordinary meaning ... [and construing] any ambiguity in the terms ... in favor of the insured ...’ (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty &...