Izzo v. Colonial Penn Ins. Co.

• Decision Date: 28 April 1987
• Docket Number: No. 12956,12956
• Citation: 524 A.2d 641,203 Conn. 305
• Court: Connecticut Supreme Court
• Parties: Angelo IZZO v. COLONIAL PENN INSURANCE COMPANY, et al.

Page 641

524 A.2d 641

203 Conn. 305

Angelo IZZO v. COLONIAL PENN INSURANCE COMPANY, et al.

No. 12956.

Supreme Court of Connecticut.

Argued Jan. 15, 1987.

Decided April 28, 1987.

Martin A. Clayman, with whom was Holly Abery-Wetstone, Bloomfield, for appellant (plaintiff).

Donald G. Walsh, with whom were Michael E. Burt and, on the brief, David H. Johnson, New Haven, for appellees (defendants).

Before ARTHUR H. HEALEY, SHEA, SANTANIELLO, CALLAHAN and MORAGHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

On March 14, 1985, the plaintiff, Angelo Izzo, brought an action for a declaratory judgment in the Superior Court. On April 7, 1986, the parties, pursuant to Practice Book § 3133, ¹ filed a joint motion to reserve questions of law for the advice of the Appellate Court. The parties sought to reserve the following questions: (1) "Whether Plaintiff ... is a separate 'person' entitled to an independent 'per person' recovery for the injury of loss of consortium within the higher 'per occurrence' limit under the Defendant Alice J. McGee's automobile liability insurance policy with Defendant, Colonial Penn Insurance Company"; (2) "Whether Plaintiff's claim for loss of consortium is a claim for 'bodily injury' by a person within the meaning of Defendant Alice J. McGee's automobile liability policy with Defendant, Colonial Penn Insurance Company"; and (3) "Whether Connecticut's Financial Responsibility Act, [General Statutes s] 14-122 supercedes the automobile liability policy issued by Defendant, Colonial Penn Insurance Company." On April 9, 1986, the court, O'Brien, J., granted the motion. On April 22, 1986, this court transferred the reservation to itself.

The underlying facts are stipulated as follows: On January 12, 1983, Olympia Izzo, wife of the plaintiff, was struck by a motor vehicle owned and operated by the defendant, Alice J. McGee. As a result of the accident, Olympia Izzo suffered permanent and disabling injuries, including the loss of her right leg, which was amputated above the knee. The plaintiff was not involved in the accident but, as a result of the injuries to his wife, suffered a loss of consortium. At the time of the accident, McGee was an insured of the named defendant, Colonial Penn Insurance Company (Colonial Penn). The Colonial Penn policy in effect at the time of the accident included liability coverage limits applicable to bodily injury coverage of $100,000 "per person" and $300,000 "per occurrence."

On March 7, 1984, the plaintiff and his wife brought suit against the defendants. In February, 1985, the case was settled in favor of Olympia Izzo only, for the "per person" policy limit of $100,000 and the case was withdrawn by her and the plaintiff. ² As part of the settlement, the parties valued the plaintiff's loss of consortium claim at $50,000. As an additional part of the settlement, the defendants reserved the right to contest whether there was coverage under the insurance policy for the loss of consortium claim. ³

I

We begin our analysis, as we must, with the applicable language of the insurance policy in effect at the time of the accident. The policy then in effect stated that Colonial Penn "will pay all sums that the insured under this coverage is legally required to pay as damages for bodily injury...." The "Limits of Coverage" portion of the policy stated that "[t]here are two limits of coverage for Bodily Injury Liability. The amount shown on your Declarations Page for 'Each Person' [$100,000] is the most [W]e'll pay for damages because of bodily injury to one person caused by any one occurrence. The amount shown on your Declarations Page for 'Each Occurrence' [$300,000] is the most we'll pay for all damages as a result of any one occurrence, no matter how many people are injured." (Emphasis added.) "Bodily Injury," as defined in the policy, "means injury to a person's body, sickness or disease, and death that results from any of these." ⁴

Given this language of the policy, the critical question which must be addressed is whether the plaintiff's claim for loss of consortium falls within the limits of liability for "bodily injury to one person caused by any one occurrence." In other words, does the plaintiff's claim arise out of bodily injury sustained by "one person" so as to make the "per person" limit applicable, or is the plaintiff's claim a claim for bodily injury to a second person such as to invoke the "per occurrence" limit. The rule in Connecticut is that an insurance policy, like any other contract, must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning. Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979); Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 307, 99 A.2d 141 (1953). Although ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied. Gottesman v Aetna Ins. Co., supra; Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 513, 123 A.2d 755 (1956). Applying the clear language of the policy to the facts of this case, and despite the plaintiff's statutory claims discussed below, we conclude that the $100,000 limit of liability "because of bodily injury to one person caused by any one occurrence" applies in this case. The plaintiff, therefore, is unable to avail himself of the higher "per occurrence" liability limit.

Connecticut has only recently recognized the right to recover for loss of consortium. Hopson v. Saint Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979). This court has not yet considered the issue of whether a provision in an insurance policy which limits the amount of an insurer's liability because of "bodily injury" to one person applies to a claim for loss of consortium. An examination of cases from other jurisdictions, where loss of consortium has enjoyed recognition for a longer period of time, however, reveals that the majority of jurisdictions follow the principle that damages for loss of consortium, resulting from bodily injury to one person, are subject to the "per person" limitation. See, e.g., Reid v. State Farm Mutual Auto Ins. Co., 784 F.2d 577 (5th Cir.1986); Montgomery v. Farmers Ins. Group, 585 F.Supp. 618 (S.D.Ind.1984); Smith v. State Farm Mutual Auto Ins. Co., 252 Ark. 57, 477 S.W.2d 186 (1972); State Farm Mutual Auto Ins. Co. v. Ball, 127 Cal.App.3d 568, 179 Cal.Rptr. 644 (1981); United Services Auto Assn. v. Warner, 64 Cal.App.3d 957, 135 Cal.Rptr. 34 (1976); State Farm Mutual Auto Ins. Co. v. Hodges, 221 Ga. 355, 144 S.E.2d 723 (1965); Travelers Indemnity Co. v. Cornelsen, 272 Md. 48, 321 A.2d 149 (1974); New Hampshire Ins. Co. v. Bisson, 122 N.H. 747, 449 A.2d 1226 (1982); Williams v. State Farm Mutual Auto Ins. Co., 99 N.J.Super. 377, 240 A.2d 35 (1968); see also annot., 13 A.L.R.3d 1228, § 4 (1967 & Sup.1986); 8A J. & J. Appleman, Insurance Law and Practice (1981) § 4893, p. 60; ⁵ 15A G. Couch, Insurance (2d Ed.) § 56:47; but cf. Bilodeau v. Lumbermens Mutual Casualty Co., 392 Mass. 537, 467 N.Ed.2d 137 (1984). Although in these cases the specific policy language is not always identical to the language in the insurance policy at issue in this case, these cases hold that the "per person" limit is applicable to all claims of damage flowing from bodily injury to one person and, therefore, it is immaterial that some part of the damages may be claimed by a person other than the one suffering the bodily injury.

An often cited reason for holding that a spouse's claim for loss of consortium is included within the "per person" limit of liability for damages because of bodily injury to one person is that the term "one person" repeatedly has been construed to refer to the person injured directly and the words "each occurrence" to include the injuries of several persons, regardless of how many persons may suffer loss. See, e.g., United Services Auto Assn. v. Warner, supra, 64 Cal.App.3d at 963, 135 Cal.Rptr. 34. The limitation applies to all damages sustained by all persons as a result of bodily injury to one person. This construction does not render the "per occurrence" limit a nullity because that provision applies to situations where more than "one person" suffers "bodily injury" in a single occurrence. See, e.g., Gass v. Carducci, 52 Ill.App.2d 394, 402a, 202 N.E.2d 73 (1964). It has been said that this "principle comports with sound logic and common sense." United Services Auto Assn. v. Warner, supra. We agree.

On the stipulated facts before us, it is obvious that the plaintiff would not have a claim under this policy for damages for loss of consortium but for the bodily injury his wife sustained in the accident with McGee. A cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions. Hopson v. Saint Mary's Hospital, supra, 176 Conn. at 494, 408 A.2d 260; United Services Auto Assn. v. Warner, supra, 64 Cal.App.3d at 964, 135 Cal.Rptr. 34; Thompson v. Grange Ins. Assn., 34 Wash.App. 151, 161-62, 660 P.2d 307 (1983). We recognized in Hopson that although loss of consortium is a separate cause of action, it is an "action [which] is derivative of the injured spouse's cause of action." Hopson v. Saint Mary's Hospital, supra. Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse. The plaintiff's loss of consortium claim, therefore, clearly fits within the "per person" limit as it is a loss sustained "because of bodily injury to one person caused by any one occurrence."

Although ambiguities or uncertainties in an insurance policy must be resolved against the insurer, nevertheless, the policy must be given a reasonable interpretation and the words used given their common, ordinary and...