Jensen v. Nationwide Mut. Ins. Co.

• Decision Date: 09 May 1969
• Citation: 158 Conn. 251,259 A.2d 598
• Court: Connecticut Supreme Court
• Parties: Ruth E. JENSEN et al. v. NATIONWIDE MUTUAL INSURANCE COMPANY.

Page 598

259 A.2d 598

158 Conn. 251

Ruth E. JENSEN et al. v. NATIONWIDE MUTUAL INSURANCE COMPANY.

Supreme Court of Connecticut.

May 9, 1969.

Vincent Villano and Thomas F. Brown, New Haven, for appellants (plaintiffs).

George E. McGoldrick, New Haven, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, COTTER and RYAN, JJ.

RYAN, Associate Justice.

This is an action on an automobile liability policy claiming damages against the defendant for failure to pay two judgments rendered against the plaintiffs, together with legal fees, arising out of an automobile accident which, the plaintiffs allege, came within the terms of coverage of a policy issued by the defendant to the plaintiff Ruth E. Jensen. The plaintiffs have appealed to us from the action of the trial court in denying the plaintiffs' motion for summary judgment, in granting the defendant's motion for summary judgment on the original complaint and in sustaining the defendant's demurrers to the second count of the amended complaint.

In the original complaint the plaintiffs made the following allegations: On or about May 1, 1956, the defendant issued to the plaintiff Mrs. Ruth E. Jensen an automobile liability insurance policy on a 1953 Chevrolet sedan owned by her and registered in her name, insuring her against any claims for personal injury and property damage which she might become legally obligated to pay as damages arising out of the ownership, maintenance or use of this car. The policy afforded similar coverage for any other automobile owned by Mrs. Jensen provided she had not owned such vehicle for more than thirty days next preceding the accident. On or about February 19, 1957, Mrs. Jensen purchased and registered in her name a 1952 Chevrolet sedan. On March 9, 1957, while her son, the plaintiff Allen R. Jensen, was operating the 1952 Chevrolet with two passengers, Virginia Brockett and Robert Trealor, the automobile struck a telephone pole, as a result of which the passengers sustained injuries. In July, 1957, Virginia Brockett brought suit against the plaintiffs for the injuries received by her in the accident. Under the terms of the policy, the plaintiffs were entitled to coverage for any claims for injuries made by Virginia Brockett and Robert Trealor as the result of this accident. The plaintiffs then requested the defendant to defend the suit, but the defendant denied coverage and notified the plaintiffs to retain their own attorney. Thereafter, in December, 1957, the plaintiffs brought an action in the Superior Court against the defendant in which they joined Virginia Brockett as a defendant, seeking a declaratory judgment to determine whether the defendant was liable under the policy for any sums which the plaintiffs might become liable to pay as damages because of bodily injury arising out of the accident of March 9, 1957. Subsequently, in April, 1958, Trealor also brought suit against the Plaintiffs for injuries sustained in the accident. On April 8, 1960, the court, (Thim, J.), having heard the parties, concluded that at the time of the accident Mrs. Jensen was not the owner of the 1952 Chevrolet and rendered judgment declaring that the defendant was not liable on the policy for any injuries sustained in the accident and that the defendant was not obligated to defend the plaintiffs in connection with any lawsuit arising out of the accident. The plaintiffs did not appeal from this judgment. Virginia Brockett, however, did appeal, and that appeal was dismissed by this court as to the defendant because of Virginia's failure to provide the defendant with security for costs. Jensen v. Nationwide Mutual Ins. Co., 147 Conn. 772, 161 A.2d 785. The remainder of Virginia's appeal was subsequently dismissed by this court on the ground that there was no justiciable controversy between the parties remaining on the appeal, namely, Virginia and the plaintiffs. Jensen v. Nationwide Mutual Ins. Co., 150 Conn. 56, 185 A.2d 77. The actions of Virginia Brockett and Robert Trealor against the plaintiffs were thereafter tried on their merits in the Superior Court, which rendered judgment in favor of Virginia Brockett to recover the sum of $13,000 and her costs and in favor of Robert Trealor to recover damages in the sum of $2500 and his costs. The plaintiffs then appealed to us from this judgment and assigned error, inter alia, in the conclusion of the trial court that Ruth Jensen was the owner of the 1952 Chevrolet at the time of the accident. We sustained the judgments in favor of Virginia Brockett and Robert Trealor. Brockett v. Jensen, 154 Conn. 328, 225 A.2d 190. Subsequent to that decision, the plaintiffs, on January 3, 1967, again made demand on the defendant for coverage on the policy and payment of legal fees incurred. The defendant denied coverage and has refused to pay the judgments and the cost of litigation incurred by the plaintiffs. The plaintiffs then brought the instant action.

In its answer, the defendant admitted all of the allegations of the plaintiffs' original complaint, with the exception of the allegations of ownership by Ruth Jensen of the 1952 Chevrolet, and those relating to the coverage of this car by the policy, which allegations it denied. The defendant also pleaded the special defense of res judicata on the basis of the judgment rendered in the declaratory judgment action. In their reply, the plaintiffs denied the allegations of the special defense.

The plaintiffs then filed a motion for summary judgment predicated on the decision of this court in Brockett v. Jensen, supra, wherein we held, inter alia, that the conclusion of the trial court that Ruth Jensen was the owner of the 1952 Chevrolet at the time of the accident could not be disturbed. The plaintiffs claimed that, by virtue of this holding, they were entitled to coverage under the policy. The court below (Doherty, J.) denied the plaintiffs' motion for summary judgment.

On June 26, 1967, the defendant moved for summary judgment, alleging that, on the basis of the allegations of res judicata, there was no material issue of fact existing between the parties. The defendant urged in its affidavit that the present action involved the same parties and the same issues embraced in the declaratory judgment action. In support of its motion, the defendant attached copies of the judgment and memorandum of decision of the Superior Court in the declaratory judgment action and the decision of this court dismissing the appeal as to the defendant in Jensen v. Nationwide Mutual Ins. Co., 150 Conn. 56, 185 A.2d 77.

In their counter affidavit, the plaintiffs alleged that, since this court in Brockett v. Jensen, supra, sustained the trial court's conclusion that Ruth Jensen was the owner of the automobile and further held that the declaratory judgment was not res judicata as between Virginia Brockett and the Jensens because they were not adverse parties in that action, the declaratory judgment was not res judicata in the instant case. On October 2, 1967, the trial court (Dube, J.) rendered summary judgment for the defendant on the original complaint.

The plaintiffs urge that the decision of this court in Brockett v. Jensen, supra, voided the effect of the declaratory judgment as res judicata on the issues of ownership and coverage in the instant case. The plaintiffs completely overlock the fact that the defendant was not a party to the Brockett case wherein this court held only that 'the determination of any issue in Jensen v. Nationwide Mutual Ins. Co. (the declaratory judgment action), supra, did not operate as a collateral estoppel to any claim (against the Jensens) made by Virginia (Brockett).' Brockett v. Jensen, supra, 154 Conn. 340, 225 A.2d 196. The basis for this decision was that so far as the declaratory judgment was concerned, Virginia's position with reference to that of Mrs. Jensen was not adverse, and there could be no collateral estoppel unless the parties were in fact adversaries on the issue in question. Brockett v. Jensen, supra, 338, 225 A.2d 190; Restatement, Judgments, § 82. Therefore, the judgment in the Brockett case does not conclude the parties on the issues raised in the instant case.

On October 6, 1967, the plaintiffs filed a notice of appeal from the summary judgment of October 2, 1967, in accordance with Practice Book § 604. On the same day the plaintiffs filed a 'Request for Finding' ¹ asking the trial court to file a 'finding' pursuant to Practice Book § 306 in order to give the plaintiffs an opportunity to test the questions of law raised by the motion for summary judgment. ² The court filed such a 'finding' in which it stated: 'The court finds that there is no defense to the defendant's motion and has followed the provisions of § 303 of the Practice Book and Summary Judgment has entered. There was no question of fact to review and the sole question was of law and found in the defendant's favor.' ³

If the affidavits and papers in the file raise a bona fide issue of law, it is not the province of the court to undertake conclusively to resolve that question; instead, it should, as provided in Practice Book § 306, file its finding stating that the only question arising is a bona fide question of law and that there is no defense on the facts. It should require the filing of pleadings formally presenting that issue. Associates Discount Corporation v. Smith's Lincoln-Mercury Sales, Inc., 153 Conn. 176, 180, 214 A.2d 909; Perri v. Cioffi, 141 Conn. 675, 680, 109 A.2d 355. If the defending party so desires he may, within ten days, file a pleading to test such question of law. The obvious purpose of the rule is to give the parties the opportunity to test the legal questions involved, by demurrer or other appropriate pleading, and to obtain a full hearing on the issues of law.

In the declaratory judgment action, and in the instant case, both the plaintiffs and the defendant were adverse parties. Both cases involved identical...