Rosnick v. Aetna Cas. & Sur. Co.

• Decision Date: 22 February 1977
• Citation: Rosnick v. Aetna Cas. & Sur. Co., 374 A.2d 1076, 172 Conn. 416 (Conn. 1977)
• Parties: Anita E. ROSNICK v. AETNA CASUALTY AND SURETY COMPANY.
• Court: Connecticut Supreme Court

Page 1076

374 A.2d 1076

172 Conn. 416

Anita E. ROSNICK v.AETNA CASUALTY AND SURETY COMPANY.

Supreme Court of Connecticut.

Argued Nov. 4, 1976.

Decided Feb. 22, 1977.

Vincent R. Falcone, New Haven, and Harold L. Rosnick, Bridgeport, with whom, on the brief, were Sigmund L. Miller, Bridgeport and William J. Cousins, New Haven, for appellant(plaintiff).

Gregory C. Willis, Bridgeport, with whom was Frederick W. Christie, Bridgeport, for appellee(defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

HOUSE, Chief Justice.

This is an appeal from a judgment rendered by the Superior Court granting the defendant's motion for summary judgment and denying a similar motion made by the plaintiff.The action was brought for a declaratory judgment to determine whether the "hit-and-run" clause in the uninsured motorist provisions of an automobile insurance policy issued by the defendant was in derogation of the statutory minimum requirements for such coverage so that the plaintiff, Anita E. Rosnick, was in fact covered for injuries sustained in an accident.

The facts of the case are not in dispute.On September 14, 1970, the plaintiff was driving an automobile owned by her in a westerly direction on route 84 in Hartford.As a result of a negligent changing of lanes by the driver of a tractor-trailer without warning or signal, the plaintiff was caused to swerve suddenly and collide head-on with a guardrail on the highway.As a result of this accident, the plaintiff sustained personal injuries.There was no contact or collision between the automobile driven by the plaintiff and the tractor-trailer nor was the identity of the tractor-trailer or of its driver ever determined.

The defendant, Aetna Casualty and Surety Company, had issued a contract of automobile liability insurance to the plaintiff in July, 1970, and it was in effect on the date of the accident in question.The policy contained an uninsured motorist provision entitled "Family Protection Coverage" which obligated the defendant to pay all sums which the plaintiff would be legally entitled to recover as damages for bodily injuries caused by the owner or operator of an "uninsured automobile."The term "uninsured automobile" was defined to include a trailer of any type and to include a "hit-and-run automobile" which, in turn, was defined to mean "an automobile which causes bodily injury to an Insured arising out of physical contact of such automobile with the Insured or with an automobile which the Insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile.' "

The defendant claimed that there was no coverage for the plaintiff in this case under the terms of the policy, since there was no physical contact between the plaintiff's automobile and the motor vehicle which caused the accident.The plaintiff claimed that the policy requirement for physical contact is in derogation of the statutes of the state of Connecticut and regulations which were promulgated thereunder by the insurance commissioner and that such requirement of physical contact was void.

The trial court concluded that the requirement for physical contact between the motor vehicles of a hit-and-run driver and the plaintiff contained in the uninsured motorist portion of the policy was not a restriction of the statutory mandatory uninsured motorist coverage in Connecticut and thus was not in derogation of the applicable statutes, but was actually an extension of the coverage required by the legislature in the applicable statute, § 38-175c of the General Statutes, in effect in 1970, and the regulations promulgated thereunder.

The plaintiff made three assignments of error, all of which relate to the principal issue at trial: Is the requirement of physical contact between the motor vehicle of a "hit-and-run" driver (specifically and accurately described as a "force-and-run" driver in the Superior Court's finding) and the plaintiff's vehicle, as provided in the uninsured motorist provisions of a standard automobile insurance policy and the policy in question, a restriction of uninsured motorist coverage made mandatory by statute and the regulations promulgated thereunder in the state of Connecticut and, thus, in derogation of the applicable statutory law or is it an appropriate extension of the coverage required by the legislature as of September 14, 1970?

At the time of the accident in question, the controlling statutes were those adopted by 1967 Public Acts, No. 510, which were amended by 1969 Public Acts, No. 202, and incorporated into the General Statutes as §§ 38-175a through 38-175d,¹ the relevant portions of which are printed in footnote one.The administrative regulation adopted by the insurance commissioner is § 38- 175a-6, entitled "Minimum provision for protection against uninsured motorists," which provided: "The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured caused by an accident involving the uninsured automobile.This coverage shall insure the occupants of every automobile to which the bodily injury liability coverage applies.'Uninsured automobile' includes an automobile insured against liability by an insurer that is or becomes insolvent."

On the date of the accident, there was in effect an automobile insurance policy with "Family Protection Coverage" issued by the defendant to the plaintiff.The policy contained a provision which, in relevant part, reads as follows: "Coverage G-Family Protection (Damages for Bodily Injury) To pay all sums which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. . . .'(U)ninsured automobile' includes a trailer of any type and means: (a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder, or (b) a hit-and-run automobile; . . . 'hit-and-run automobile' means an automobile which causes bodily injury to an Insured arising out of physical contact of such automobile with the Insured or with an automobile which the Insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such 'hit-and-run automobile.' "

This court decided similar questions to the ones raised in this case in Weingarten v. Allstate Ins. Co., 169 Conn. 502, 363 A.2d 1055.At issue in Weingarten was the interpretation of the same statutory and regulatory provisions in question here.In Weingarten, we concluded that the applicable statutory and regulatory provisions did not require coverage in situations such as the present case where the vehicle causing the accident was "unidentified," as distinguished from "uninsured," and where there was no physical contact between it and the plaintiff's vehicle.We there stated (p. 507): "The statute and regulations do not define 'uninsured motorist' or in any way refer to what are commonly called hit-and-run operators.They merely require that every policy contain 'uninsured motorist coverage.'' "(C)ourts cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result."State v. Malm, 143 Conn. 462, 467, 123 A.2d 276.Much less does the plaintiff's unfortunate circumstance justify this court's disregarding the legislative mandate that words used in statutes"shall be construed according to the commonly approved usage of the language."General Statutes § 1-1.A due regard for the differing functions of the legislative and judicial branches of government requires that the courts refrain from rewriting, under the pretext of interpretation, the clearly expressed language of a legislative enactment which the court deems to be preferable to that which the legislation requires." In the field of legislation, the legislature is supreme.Courtsmust apply legislative enactments according to their plain terms."State v. Malm, supra.'Simonette v. Great American Ins. Co., 165 Conn. 466, 471, 338 A.2d 453, 455.An 'uninsured motorist' clearly is not the same as an 'unidentified motorist' and '(a)court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.'Marcolini v. Allstate Ins. Co., 160 Conn. 280, 284, 278 A.2d 796, 799."

The facts in the Weingarten case partially differ from those in the present case in that the plaintiff's insurance policy in Weingarten did not extend uninsured motorist coverage to "hit-and-run" situations.In the present case, the insurance policy expressly extended coverage beyond the minimum statutory...