Russbach v. Yanez-Ventura, AC 44232

• Court: Appellate Court of Connecticut
• Writing for the Court: ELGO, J.
• Citation: 213 Conn.App. 77,277 A.3d 874
• Parties: Daniel RUSSBACH v. Marisol YANEZ-VENTURA et al.
• Docket Number: AC 44232
• Decision Date: 07 June 2022

213 Conn.App. 77
277 A.3d 874

Daniel RUSSBACH
v.
Marisol YANEZ-VENTURA et al.

AC 44232

Appellate Court of Connecticut.

Argued January 18, 2022
Officially released June 7, 2022

277 A.3d 877

Chet L. Jackson, New Haven, for the appellants (substitute plaintiffs).

John W. Cannavino, Jr., Stamford, with whom, on the brief, was Ryan T. Daly, for the appellee (defendant Wesco Insurance Company).

Elgo, Alexander and Suarez, Js.

ELGO, J.

213 Conn.App. 80

In this insurance coverage dispute, the substitute plaintiffs, Kristina Bakes and Marlene Esposito, coadministrators of the estate of Daniel Russbach (decedent),¹ appeal from the judgment of the trial court in favor of the defendant Wesco Insurance Company.² On appeal, the plaintiffs contend that the court improperly concluded that (1) the defendant's failure to comply

277 A.3d 878

with the statutory requirements of General Statutes § 38a-336 (a) (2) was excused under the particular facts of this case and (2) the insurance policy in question

213 Conn.App. 81

provided for standard, rather than conversion, insurance coverage.³ We affirm in part and reverse in part the judgment of the trial court.

The facts of the underlying automobile accident are not in dispute. On October 26, 2015, the decedent was operating a vehicle in New Haven owned by West Shore Motors (dealership), a used car dealership and repair center in Milford. As the decedent proceeded through a green light, Marisol Yanez-Ventura, an uninsured driver, negligently turned her vehicle into the decedent's lane of traffic, causing a head-on collision that resulted in catastrophic injuries to the decedent.

The decedent thereafter commenced the present action. Relevant to this appeal is the third count of his complaint,⁴ which alleged that the vehicle driven by the decedent on October 26, 2015, was insured by the defendant under policy number WPP12545600 (policy). The complaint further alleged that the policy provided $1 million in uninsured motorist coverage.⁵ In its answer, the defendant denied the substance of the latter allegation. The defendant also alleged, as special defenses, that any recovery obtained by the decedent must be reduced by all sums received from collateral sources and that such recovery "is limited to the applicable limits of the [policy], namely, $100,000 minus all applicable credits, reductions and offsets."

213 Conn.App. 82

On June 20, 2017, the defendant filed a motion to bifurcate the issue of the insurance coverage limits and the issue of damages, which the court granted. A bifurcated trial before the court followed, limited to the issue of the extent of uninsured motorist coverage under the policy. The sole witness at trial was Jason Kenneth Blake, who owned the dealership at all relevant times, and whose testimony the court ultimately found credible. Blake offered uncontroverted testimony that he was solely responsible for procuring and "making decisions as to insurance coverage" for the dealership. Blake also testified that he did not have "any education or formal training on risk loss and insurance purchasing."

Blake testified that the dealership was "not in the business of loaning cars" and that the dealership had only "ten [or] twenty" cars for sale in the fall of 2015. Blake explained that "the majority of [the dealership's] business was done on the property" and "operated more off our lot, even though we did [allow] test drives on cars ... we really weren't in the business of doing loaner cars. Occasionally we did, and, so I didn't think we needed a whole lot of [insurance] coverage for that area." Because the dealership was not in the business of loaning or renting cars, Blake testified that he "wanted to have the minimum amounts [of uninsured motorist coverage]

277 A.3d 879

required by the state of Connecticut."

Blake testified that, in procuring insurance coverage for the dealership, he consulted with Mike Castellini of McCormick Insurance Agency, an agency located in New Jersey. The policy obtained by the dealership, a copy of which was admitted into evidence at trial, was a commercial garage policy that provided $1 million in liability coverage. The only named insured on the policy was the dealership.

Also admitted into evidence was a copy of a document titled "Connecticut Uninsured/Underinsured Motorists

213 Conn.App. 83

Coverage Selection and Informed Consent Form" (waiver form) signed by Blake on April 23, 2015.⁶ It is undisputed that the waiver form did not specify the amount of liability coverage provided by the policy. The waiver form also did not disclose the premium costs for any of the eighty-two uninsured motorist coverage options listed on pages three and four of that form as required by § 38a-336 (a) (2) ; the area designated for the "Total Coverage Premium" for each of those options on the form was left blank, as Blake admitted at trial.⁷ Nonetheless, a handwritten check mark appeared next to the $100,000 "Combined Single Limit" options on the form, and Blake testified that "$100,000 was what was required [under Connecticut law] and that's what I wanted." As Blake explained, he "wanted the minimum amount of insurance for uninsured motorist" coverage available. Blake also testified that neither the writing on page one of the waiver form—which listed the name of the applicant, the policy's effective date, and the producer of the policy—nor the check marks on certain boxes were made by him.⁸ Rather, he testified that the only writing on the waiver form that was his was the signature on page four.

In its January 30, 2018 memorandum of decision, the court found that Blake "was the person responsible for purchasing insurance for [the dealership] in 2015. Blake testified credibly that he consulted with an insurance

213 Conn.App. 84

professional to provide him advice, which he considered in determining the scope of insurance coverage for the business. Blake wanted low cost insurance and the lowest possible [uninsured motorist ] coverage that was allowed and made the decision to obtain less [uninsured motorist] coverage than the bodily liability limits. Blake credibly testified at trial that he received the waiver form which his insurance agent asked him to review, reviewed it, knowingly approved his selection and sent it back to the agent. ... The waiver form lists $100,000 in [uninsured motorist] coverage. ... This court further finds Blake's testimony to be credible as to the procurement of this commercial automobile insurance policy and his desire to have the lowest possible [uninsured motorist ] coverage for such vehicles . Blake was credible as to his review and understanding of the waiver form and his knowing selection of the lower $100,000 [uninsured

277 A.3d 880

motorist] coverage." (Citations omitted; emphasis added.) The court thus concluded that the dealership "knowingly made an informed decision to reduce the [uninsured motorist] coverage to $100,000 from the $1,000,000 bodily injury liability coverage and that the ... coverage was properly reduced to $100,000."⁹ Although it found that the waiver form "did not contain a statement of premium costs," the court concluded that such noncompliance with the statutory requirements of § 38a-336 (a) (2) was excused because the policy was for a commercial garage.

The decedent thereafter filed a motion for articulation, in which he sought clarification as to whether the court had found that the dealership "knowingly selected $100,000 in standard [uninsured motorist] coverage or $100,000 in conversion ... coverage" and the factual

213 Conn.App. 85

basis for that determination. The court granted that motion and, in its April 13, 2018 articulation, expressly indicated that the dealership had knowingly selected $100,000 in standard uninsured motorist coverage. The court further stated that the factual basis for that determination was Blake's testimony at trial that he had selected a policy for $100,000 "with standard uninsured motorist coverage ... and ... that's what I understood this to mean. ... I was picking the $100,000 limit for uninsured motorist."

On February 8, 2019, the defendant filed a motion for summary judgment on the remaining issue of damages. The defendant argued that no genuine issue of material fact existed in light of the court's determination that the policy contained $100,000 in uninsured motorist coverage. Because the decedent had received workers’ compensation benefits in excess of $100,000,¹⁰ which operate as an offset to the uninsured motorist coverage under the policy, the defendant claimed that it was entitled to judgment as a matter of law.¹¹ In opposing the motion for summary judgment, the decedent claimed that a genuine issue of material fact existed as to whether the waiver form signed by Blake was valid.

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