Novella v. Hartford Acc. & Indem. Co.

• Citation: 163 Conn. 552,316 A.2d 394
• Court: Supreme Court of Connecticut
• Decision Date: 27 July 1972
• Parties: John M. NOVELLA v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.

Page 394

316 A.2d 394

163 Conn. 552

John M. NOVELLA v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.

Supreme Court of Connecticut.

July 27, 1972.

John J. Hunt, Bridgeport, for appellant (plaintiff).

Edward N. Shay, New Haven, for appellee (defendant).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and MacDONALD, JJ. MacDONALD, Associate Justice.

This appeal arose out of an action against the Hartford Accident and Indemnity Company, an automobile liability insurer, hereinafter referred to as the defendant, brought by the plaintiff John M. Novella, a judgment creditor of the defendant's insureds, Russell Novella and Joseph Novella, to recover the amount of a judgment obtained for personal injuries sustained in a motor vehicle accident. The action was brought pursuant to General Statutes § 38-175, which provides for the subrogation of a judgment creditor to all the insured's rights against the defendant insurer. The defendant interposed three special defenses based on clauses in the insurance policy itself, namely, that (1) the policy excludes coverage for injuries to an employee of the insureds arising out of and in the course of his employment; (2) the policy excludes coverage for any obligation for which the insureds may be liable under the Workmen's Compensation Act; and (3) the insureds breached a clause requiring their cooperation. The issues were submitted to the jury which returned a verdict for the defendant. Following a denial of the plaintiff's motions to set aside the verdict and for judgment notwithstanding the verdict, the trial court rendered a judgment for the defendant. From the judgment rendered, the plaintiff has appealed to this court assigning as error, inter alia, the denial of his motions to set aside the verdict and for judgment notwithstanding the verdict; the failure to include certain requests in the charge to the jury and the inclusion therein of portions claimed objectionable; in finding or refusing to find facts set forth in the claims of proof; and in rulings made during the trial.

We will consider first error assigned in the failure of the trial court to set aside the verdict and in denying the plaintiff's motion for judgment notwithstanding the verdict. 'The same principles are to be applied to the review of the court's action on each motion. Maltbie, Conn.App.Proc. § 208.' Greene v. DiFazio, 148 Conn. 419, 420, 171 A.2d 411, 413. In reviewing the decision of the trial court, 'we consider the evidence in the light most favorable to the sustaining of the verdict. Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748; Kazukynas v. N. C. Casciano & Sons, Inc., 149 Conn. 1, 2, 174 A.2d 796; Maltbie, Conn.App.Proc. § 189. The court's action is tested by the evidence contained in the appendices to the briefs. Practice Book §§ 716, 718, 720-721; Smith v. Housing Authority, 144 Conn. 13, 14, 127 A.2d 45; Maltbie, Conn.App.Proc. § 185, p. 227.' Kelly v. Bliss, 160 Conn. 128, 130, 273 A.2d 873, 875; Kostyal v. Cass, 163 Conn. 92, 94, 302 A.2d 121; Lewis v. Kasimer, 153 Conn. 13, 15, 211 A.2d 837. If the jury could reasonably have reached their conclusion the verdict must stand. Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141, 142. 'The concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony, is a powerful argument for sustaining the action of the trial court. Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760.' Ibid.; Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 545, 116 A.2d 167; Zullo v. Zullo, 138 Conn. 712, 715, 89 A.2d 216.

From the evidence presented in the appendices to the briefs and taken in the light most favorable to the sustaining of the verdict, the jury reasonably could have found the following facts: Russell A. Novella and his brother, Joseph Novella, were partners who operated a junk business dealing in scrap metal and paper. Some of their trucks, including a 1952 International rack-body truck, frequently were used in connection with paper drives conducted by various organizations. In connection with such drives, one or more of the trucks customarily would be left at the headquarters of the organization conducting the drive where the organization's workers would load the truck with paper and it then would be brought back to the scrap yard which would pay the organization for the paper and then process and sell it for a profit. John Novella, the plaintiff, son of Russell Novella and nephew of Joseph Novella, was a full-time employee of the scrap yard on the date of the accident. Prior to the accident, the plaintiff drove the scrap yard trucks as part of his employment and operated the 1952 International about 90 percent of the time.

On Saturday, May 19, 1962, Russell Novella told John Novella to drive the 1952 International to Mahopac for a paper drive to be held there. This would save Russell Novella from having to do it himself on the following day, Sunday. It was stipulated that on the way to Mahopac, the 1952 International, which the plaintiff was driving, went off the road and crashed, severely injuring the plaintiff.

At the time of the accident, the scrap yard had no workmen's compensation insurance, but it did have an automobile liability insurance policy issued by the defendant. This policy contained, inter alia, two pertinent exclusionary clauses which stated that the policy did not apply (1) to bodily injury to any employee of the insured arising out of and in the course of employment by the insured, and (2) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation law. ¹

On January 8, 1963, the plaintiff sent a letter to the defendant alleging negligence on the part of the insureds. On January 16, Joseph Novella gave a signed statement to the effect that he had knowledge of some minor deficiencies on the truck in question and that the plaintiff drove that truck at least 90 percent of the time. On January 16, Russell Novella gave a signed statement stating that (1) the plaintiff's job covered the operations of the scrap yard including the driving of scrap yard trucks; (2) the plaintiff's normal work week was six full days (including Saturday); (3) the accident occurred within the scope of the plaintiff's employment in the scrap business; (4) he had no knowledge that the truck in question was defective in any way before the accident; and (5) the truck was in regular use and in top shape. On January 18, in response to the claim letter of January 8, the defendant wrote to the plaintiff's attorney indicating that the liability coverage excluded any liability for any employee and that since the plaintiff was an employee and injured in the course of his employment on the date in question, no coverage was in effect. On January 19, the plaintiff's attorney wrote to the defendant stating that no claim was to be made under the Workmen's Compensation Act and acknowledging that if the policy excluded any liability of the named insured for an employee, then he could not look to the defendant for compensation.

On May 15, 1963, the plaintiff brought an action in negligence against the insureds to recover for his injuries, a copy of the complaint being sent to the defendant. On May 23, the defendant's claims manager wrote to the insureds pointing out policy exclusion (d) concerning injuries to employees, that the defendant's actions in defending were not to be construed as a waiver of this exclusion and recommending that they retain their own counsel. No mention of exclusion (e) concerning workmen's compensation was made at that time since the defendant did not have actual knowledge that the scrap yard regularly employed two employees, and was therefore subject to the provisions of the Workmen's Compensation Act. It was not until about six years later, in June, 1969, long after the plaintiff's suit against the insureds had concluded, that the defendant became aware that the insureds regularly employed two employees at the scrap yard.

The defendant engaged Attorney Arnold J. Bai to defend the action and, pursuant to the defendant's recommendation of May 15, the insureds also retained Attorney Albert H. Hornig. Both attorneys filed appearances for the insureds. On June 4, Russell Novella gave a sworn and recorded statement to Attorneys Bai and Hornig which contradicted his earlier statement of January 16, in that he now stated that (1) the plaintiff's trip to Mahopac was not made in the course of his employment; (2) the plaintiff did not work on Saturday afternoon; (3) the plaintiff's trip was done as a favor without compensation; and (4) he had knowledge that the steering wheel in the 1952 International had play in it prior to the accident. Additionally, in response to a question propounded by Attorney Bai asking the insured, Russell Novella, how many employees the scrap yard had in May, 1962, the insured responded that he had only one employee, the plaintiff. The answer was technically correct since the other employee had quit on April 28, 1962, and the scrap yard had been unable to fill the position up to the time of the accident. In actuality, however, the scrap yard ordinarily, regularly and customarily employed two employees.

The defendant always has taken the position that the plaintiff's injuries arose out of and in the course of his employment and that exclusion (d) of the policy was applicable. Thus, two days after the above statements by Russell Novella to the effect that the scrap yard employed only one person and that the accident was unrelated to the plaintiff's employment, John Lyons was sent by the defendant to examine the insured's payroll book. Lyons was not an adjuster nor a claims representative nor an investigator. His sole assignment was to determine whether the plaintiff worked on Saturdays, and to establish whether the plaintiff was paid...