Infinity Ins. Co. v. Shea, No. HHB CV 05 4003910 S (Conn. Super. 7/25/2006)

• Decision Date: 25 July 2006
• Docket Number: No. HHB CV 05 4003910 S,HHB CV 05 4003910 S
• Court: Connecticut Superior Court
• Parties: Infinity Insurance Company v. Colleen Shea et al. Opinion No.: 94586

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Unpublished Opinion

Infinity Insurance Company v. Colleen Shea et al. Opinion No.: 94586

No. HHB CV 05 4003910 S

Superior Court of Connecticut

Judicial District of New Britain at New Britain

July 25, 2006

MEMORANDUM OF DECISION

ROBERT B. SHAPIRO, JUDGE.

The parties appeared before the court at a bench trial on June 29, 2006 concerning the plaintiff's action for declaratory relief. After considering the evidence and the arguments of the parties, the court issues this memorandum of decision.

I BACKGROUND

This matter involves the parties' dispute concerning the plaintiff, Infinity Insurance Company's (Infinity) claim that a policy of insurance, which it issued to defendant Colleen Shea, does not cover a personal injury claim made by defendant John Plaster, as a result of an incident which occurred on August 6, 2003, when defendant Ricky Lyons was using Shea's motor vehicle. In its complaint, count one, Infinity alleges that, on that date, Lyons took and operated Shea's vehicle without her express or implied permission, or that of any other person, and without a reasonable belief that he was entitled to operate her vehicle.¹

A default for failure to appear was entered against Shea by the clerk on May 4, 2005 (#105.10). Although she was defaulted, Shea testified at the trial. Appearances were filed by Lyons and Plaster and both also testified at the trial. Documentary evidence was provided as well. The parties were offered the opportunity to submit memoranda of law, but decided instead to present oral arguments at the close of the evidentiary portion of the trial.

II DISCUSSION

"[C]onstruction of a contract of insurance presents a question of law for the court . . . 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.) Connecticut Insurance Guaranty Association v. Fontaine, 278 Conn. 779, 784-85 (2006).

The insurance policy, plaintiff's Exhibit 1, Part I — Liability, page 2, provides, in pertinent part, that Infinity "will pay damages . . . for which an insured person is legally liable because of bodily injury or property damage resulting from the ownership, maintenance or use of your insured car or a non-owned car." The insurance policy also states, under additional definitions applicable to Part I, that "insured person" means, with respect to an insured car, "(3) a person other than a relative using your insured car with reasonable belief that that person is entitled to do so." See plaintiff's Exhibit 1, Part I-Liability, page 2.

In addition, under Exclusions, the insurance policy states, "We do not cover: . . . (20) bodily injury or property damage arising out of the use of your insured car by a person without your permission or beyond your permission to use the car. This does not apply to a relative using your insured car." See plaintiff's Exhibit 1, Part I-Liability, pages 2-3.

Thus, according to the policy, the question of whether there is coverage for Lyons' use of Shea's vehicle on August 6, 2003 depends on whether he did so with a reasonable belief that he was entitled to do so and on whether he had Shea's permission. Here, it is undisputed that Lyons was not Shea's relative.

Whether or not Lyons used Shea's vehicle "with reasonable belief" that he was entitled to do so presents a question of fact. See Team Rental Group, Inc. v. ITT Hartford Group, Inc., 46 Conn.Sup. 480, 485, 755 A.2d 382 (1998), affirmed per curiam, 59 Conn.App. 110, 755 A.2d 971 (2000). Similarly, whether he had Shea's permission also is a question of fact. See Engram v. Kraft, 83 Conn.App. 782, 788-89, 851 A.2d 363 (2004) (whether there was permission to use vehicle raises question of fact); Rice v. Welch, 33 Conn.Sup. 523, 526-27, 358 A.2d 362 (App.Sess.1976) (same).

The circumstances leading up to Lyons' use of Shea's vehicle on August 6, 2003 were addressed in the trial testimony. "In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004). As the trier of fact the court "can . . . decide what — all, none, or some — of a witness' testimony to accept or reject." (Internal quotation marks omitted.) State v. Reid, 85 Conn.App. 802, 807, 858 A.2d 892, cert. denied, 272 Conn. 908, 863 A.2d 702 (2004).

Here, the court credits Shea's testimony concerning her relationship with Lyons and concerning what occurred concerning permission. She stated that she did not give Lyons permission to use her vehicle on August 6, 2003. Before that day, Lyons had been living with Shea; they had had a prior intimate relationship. She had asked Lyons to leave the residence....