Kinsey v. Pacific Employers Ins. Co.

• Decision Date: 07 March 2006
• Docket Number: No. 17182.,17182.
• Citation: 277 Conn. 398,891 A.2d 959
• Court: Connecticut Supreme Court
• Parties: Jerome KINSEY v. PACIFIC EMPLOYERS INSURANCE COMPANY.

891 A.2d 959

277 Conn. 398

Jerome KINSEY v. PACIFIC EMPLOYERS INSURANCE COMPANY.

No. 17182.

Supreme Court of Connecticut.

Argued January 7, 2005.

Decided March 7, 2006.

Philip T. Newbury, Jr., with whom, on the brief, was Martha A. Shaw, Hartford, for the appellant (defendant).

Alan Scott Pickel, Stamford, for the appellee (plaintiff).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

PALMER, J.

The defendant, Pacific Employers Insurance Company, appeals from the judgment of the trial court confirming an arbitration decision in favor of the plaintiff, Jerome Kinsey. This case arises out of an automobile accident in which the plaintiff, who was operating a vehicle owned by his employer and insured under a commercial fleet automobile insurance policy issued by the defendant, sustained injuries that were caused by an underinsured motorist. The sole issue in this appeal is whether the trial court properly concluded that a written request by the plaintiff's employer for a reduction in uninsured and underinsured motorist coverage under its commercial fleet policy was ineffective because certain language in the informed consent form in which the request was made was not in twelve-point type as required by General Statutes § 38a-336(a)(2).¹ We conclude that the trial court improperly determined that the written request for a reduction in uninsured and underinsured motorist coverage was ineffective and, therefore, reverse the judgment of the trial court.

The relevant facts and procedural history are undisputed. On or about November 21, 2000, the plaintiff was injured when the vehicle that he was driving in Ardsley, New York, was struck by an automobile driven by Oscar Rosas. The vehicle operated by the plaintiff was owned by his employer, Friedkin Companies, Inc. (Friedkin), a corporation with over 2700 employees, and was insured under a commercial fleet automobile insurance policy issued to Friedkin by the defendant. More than 1000 vehicles were covered under the policy.² The vehicle operated by Rosas was insured under an automobile insurance policy with liability limits of $30,000.

After exhausting the liability limits of Rosas' policy, the plaintiff asserted a claim for underinsured motorist benefits under Friedkin's policy, which provided liability coverage of $1 million. The plaintiff maintained that, because, under General Statutes § 38a-336(a)(2), "each automobile liability insurance policy . . . shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law," he was entitled to underinsured motorist coverage up to the limit of $1 million. The defendant disagreed, claiming that the total amount of underinsured motorist coverage available under Friedkin's policy was $40,000, less any amount that the plaintiff had recovered under Rosas' policy. The defendant predicated its claim on the fact that, prior to the date of the accident in which the plaintiff was injured, Friedkin had submitted to the defendant an "Informed Consent Form," signed by Mary E. Isbell, Friedkin's vice president of risk, requesting that its uninsured and underinsured motorist coverage limit be reduced to $40,000. Although acknowledging that Friedkin had submitted a request for a reduction in coverage, the plaintiff maintained that the request was ineffective because the informed consent form in which Friedkin had made the request did not comply with § 38a-336(a)(2). In particular, § 38a-336(a)(2) requires the inclusion of certain language, in the form of a heading in twelve-point type, on the informed consent form;³ it is undisputed that the form that Friedkin had submitted contained the required language, albeit in eight-point type rather than twelve-point type.⁴

The plaintiff commenced an action in the Superior Court seeking to compel the defendant to proceed with arbitration of the parties' coverage dispute in accordance with the terms of Friedkin's policy. The parties subsequently agreed to submit the dispute for resolution by a single arbitrator. The unrestricted arbitration submission provided that "the [a]rbitrator shall determine whether the informed consent form is in accordance with the requirements of . . . § 38a-336(a)(2) and determine the applicable amount of [u]nderinsured [m]otorist [c]overage available to [the][p]laintiff pursuant to [Friedkin's] policy.. . . After [this] determination . . . a second hearing will be had, if necessary, concerning damages and the award of underinsured motorist benefits to the plaintiff. . . ." The arbitrator thereafter rendered a decision in which he concluded that "the informed consent form [in which Friedkin had made its request for a reduction in uninsured and underinsured motorist coverage] fails to comply with the statutory requirements of [§ 38a-336(a)(2)] in that the typeface of the required [heading] is not in twelve . . . point type." The arbitrator further concluded that Friedkin's "election for lower [uninsured and underinsured motorist coverage] . . . is invalid and the applicable . . . underinsured motorist coverage is [$1 million] less applicable set offs."

Thereafter, the defendant filed a motion to vacate the arbitrator's decision. The defendant claimed that, under the circumstances, strict compliance with the typeface requirement of § 38a-336(a)(2) was neither necessary nor appropriate because that requirement was intended to benefit individual consumers rather than sophisticated corporate entities such as Friedkin, which is insured under a commercial fleet automobile insurance policy. The trial court rejected the defendant's contention, denied the defendant's motion to vacate and rendered judgment confirming the arbitrator's decision. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.⁵

This case presents an issue of statutory construction, and, therefore, our review is plenary. E.g., Wiseman v. Armstrong, 269 Conn. 802, 809, 850 A.2d 114 (2004). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z⁶ directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.. . ."⁷ (Citation omitted; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005).

Thus, in accordance with § 1-2z, we begin our analysis with the text of General Statutes § 38a-336(a)(2), which provides in relevant part: "[E]ach automobile liability insurance policy issued or renewed on and after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. . . . No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which . . . shall contain a heading in twelve-point type and shall state: `WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT

YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER.'"

In light of the dictates of § 1-2z, we first must determine whether, as the trial court concluded, the twelve-point type requirement of § 38a-336(a)(2) is plain and unambiguous. We agree with the defendant that it is not.

It is true, of course, that the text of § 38a-336(a)(2) provides that a reduction in uninsured and underinsured motorist coverage shall be made in writing by the named insured and, further, that the named insured shall sign an informed consent form that includes a heading, containing certain specified cautionary language, in twelve-point type. It also is true that, on its face, § 38a-336(a)(2) contains no exceptions to the heading requirement, including the requirement that the heading be in twelve-point type.

As the defendant notes, however, the heading's statutorily mandated language warns an insured who may elect to purchase a reduced amount of uninsured and underinsured motorist coverage that, "you are also choosing not to purchase certain valuable coverage which protects you and your family." (Emphasis added; internal quotation marks omitted.) General Statutes § 38a-336(a)(2). The required heading further provides that, "[i]f you are uncertain about how this decision will affect you, you should get advice from your insurance agent or another qualified adviser." (Emphasis added; internal quotation marks omitted.) General Statutes § 38a-336(a)(2). Because commercial fleet policies generally are purchased by commercial entities, like Friedkin, that do not have...