Roy v. Centennial Ins. Co.

Decision Date24 August 1976
Citation171 Conn. 463,370 A.2d 1011
CourtConnecticut Supreme Court
PartiesTina ROY v. CENTENNIAL INSURANCE COMPANY.

Edward T. Dood, Jr., Waterbury, for appellant (plaintiff).

Wesley W. Horton, Canton, with whom, on the brief, was Maurice T. FitzMaurice, Hartford, for appellee (defendant).

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

BARBER, Associate Justice.

Pursuant to the provisions of chapter 908 of the General Statutes (§§ 52-406, 52-407), the parties submitted an agreed case to the Superior Court to determine whether the plaintiff is entitled to recover under the 'uninsured motorist' provisions of an automobile liability policy issued by the defendant. The court determined that the plaintiff was not entitled to recover, and she has appealed to this court.

The agreed-upon facts may be briefly summarized as follows: On February 6, 1971, Tina Roy, a minor, was injured as a result of a collision between an automobile owned and operated by Anthony D. Frisina, in which Miss Roy was riding as a passenger, and an automobile owned by the Atlantic Richfield Company and operated by Charles J. Leroy. In March, 1972, an action was instituted on behalf of Miss Roy against Frisina, Atlantic Richfield Company, and Leroy, claiming damages for injuries resulting from the accident. The sum of $130,000 was paid by Atlantic Richfield Company and Leroy to Miss Roy, and the suit against all three defendants was withdrawn.

Prior to the date of the accident, the defendant had issued an automobile liability policy to Richard Styring. By the terms of that policy, the company agreed to provide uninsured motorist coverage as follows: 'Coverage G-Uninsured Motorists (Damages for Bodily Injury). To pay 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 accident and arising out of the ownership . . . or use of such uninsured automobile.' Tina Roy is a relative of Richard Styring and is, therefore, an 'insured' as that term is used in coverage G. 1 The automobile in which Tina Roy was riding, owned and operated by Anthony Frisina, was an 'uninsured automobile' as that term is used in coverage G. The defendant's liability under coverage G is limited to a maximum of $20,000.

Following withdrawal of the suit against Atlantic Richfield Company, Leroy, and Frisina, Miss Roy submitted a claim under the uninsured motorist provisions of the Styring policy for $20,000. The defendant denied coverage, contending that under the terms of the policy the defendant's uninsured motorist' liability was reduced by the amount paid by Atlantic Richfield Company and Leroy. Since the amount paid by Atlantic Richfield Company and Leroy, § 130,000, far exceeds the $20,000 limit of liability, the defendant's contention, if valid, would remove any liability on its part.

The policy provides that any amount payable by the defendant as uninsured motorist protection is to be reduced by any amount paid on account of the bodily injury either by the uninsured motorist himself or by any other person or organization jointly and severally liable together with the uninsured motorist for the bodily injury. 2 The parties are in agreement that the language of the policy is in accord with regulations issued by the insurance commissioner and that if the regulations and the language of the policy are valid, then Tina Roy is not entitled to recover under the policy. The parties have also agreed that if the regulations and the policy language are not valid, then Tina Roy is entitled to recover $20,000 from the defendant.

The sole issue presented on appeal is whether § 38-175a-6(d) of the insurance commissioner's regulations which purports to authorize a reduction in the amount of 'uninsured motorist' protection to the extent that any sums have been paid by or on behalf of a person liable for the injuries caused the insured is valid.

Section 38-175a(a) of the General Statutes directs the insurance commissioner to 'adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies . . ..' Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the . . . uninsured motorists coverages under such policies . . ..' Section 38-175c of the General Statutes provides, in part, that every automobile liability insurance policy 'shall provide insurance in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . because of bodily injury.' The minimum coverage required by § 14-112(a) of the General Statutes is $20,000.

The regulation in question, § 38-175a-6(d), provides that '(t)he limit of the insurer's liability may not be less than the applicable limits for bodily injury liability specified in (§ 14-112(a) of the General Statutes) except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury. . . .' The plaintiff contends that the insurance commissioner has not been authorized by statute to adopt any such regulation permitting a reduction in the insurer's liability under the 'uninsured motorists coverages,' that regulation § 38-175a-6(d) is contrary to the plain and unambiguous language of § 38-175c of the General Statutes, and that the regulation, therefore, is void and of no effect, as is the policy language which conforms to that regulation. The plaintiff argues further that the clear public policy of this state is to require each insurer to provide an irreducible minimum of uninsured motorists coverage, and that regulation § 38-175a-6(d) contravenes that policy. Finally, the plaintiff claims that to give effect to the regulation and the policy language in question is to bestow a windfall upon the insurer to the extent that premiums have been collected for the uninsured motorists coverages.

We have twice had occasion to consider regulation § 38-175a-6(d) here in question. In Fidelity & Casualty Co. v. Darrow, 161 Conn. 169, 286 A.2d 288, the defendant's decedent had been killed when the automobile in which he was riding as a passenger collided with an uninsured automobile. The decedent was covered by the uninsured motorist provisions of two policies, one issued to the decedent and one issued to the driver of the vehicle in which he was riding. Because several other persons riding in the same automobile as the decedent had also been killed in the collision and their estates had also filed claims against the uninsured motorist provisions of the policy issued to the driver of that automobile, the decedent's estate received only a proportional amount of the coverage provided by that policy. The estate, therefore, sought recovery under the uninsured motorist provisions of the policy issued to the decedent. The insurer which had issued the decedent's policy denied coverage, claiming that the 'other insurance' clause contained within its policy precluded recovery. The question of the validity of the 'other insurance' clause was reserved for this court, and we held the clause invalid to the extent that it reduced the amount of coverage 'actually available' to the decedent to less than the statutory minimum of $20,000. Important to our decision was the fact that although the insurance commissioner's regulations authorized the 'setoff' of recoveries from any person responsible for the injury against the uninsured motorist protection, the regulations did not authorize 'other insurance' clauses.

The second case, Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 370 A.2d 1006 (38 Conn.L.J., No. 8, p. 4) involved, somewhat similar circumstances. The plaintiff, injured when his motorcycle collided with an uninsured motor vehicle, was covered by the uninsured motorist provisions of two policies. One policy had been issued to the plaintiff's mother, who owned the motorcycle, and the other policy had been issued to the plaintiff's father by the defendant. The plaintiff recovered $18,000 from the first policy and then sought recovery under the second. Aetna, which had issued the second policy, denied coverage on the grounds that the plaintiff had had the statutory minimum of $20,000 'actually available' to him under the first policy. The majority of this court held that the plaintiff was entitled to recover up to $20,000 from Aetna. Although regulation § 38-175a-6(d) authorized Aetna to reduce its liability under the uninsured motorist provisions of its policy to the extent of any sums paid 'by or on behalf of any person responsible for the injury,' we held that the payment made to the plaintiff under the 'uninsured motorist' provision of the first policy did not fall into this category because regulation § 38-175a-6(a) provides that such sums are paid 'on behalf of the insured,' and not on behalf of the person responsible for the injury.

The present case differs from both Darrow and Pecker in several respects. Firstly, unlike Darrow, the plaintiff here has already recovered far in excess of the statutory minimum. Secondly, unlike Pecker, the amounts previously recovered have been paid by one of those responsible for the injury, and there is only one 'uninsured motorist' provision involved. Finally, and most importantly, in both Darrow and Pecker the regulations of the insurance commissioner were assumed to be valid and the issue raised in each case was whether the policy provisions in question complied with those regulations. In the present appeal, the policy provision and the regulations are mutually consistent, and the issue is whether the regulation itself is...

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