Smith v. Long
| Decision Date | 05 December 2016 |
| Docket Number | HHDCV146052608 |
| Court | Connecticut Superior Court |
| Parties | Wendy Smith et al. v. Mikeya Long |
UNPUBLISHED OPINION
In a trial to the court on April 17, 2016, the minor plaintiffs Angeleena Warren and Sydney Warren, by and through their mother and next friend, Wendy Smith, presented evidence in support of their lawsuit for uninsured motorist benefits against GEICO Insurance Co. Also before this court is the underlying action pursuant to the plaintiffs' negligence claim against the tortfeasor, Mikeya Long, arising out of a motor vehicle accident on June 5, 2014. The original action included two other plaintiffs, specifically, the mother Wendy Smith, who was the driver of the other vehicle, as well as Carlee Warren, who was another passenger and sibling to Angeleena and Sydney.
The plaintiffs' motion to cite in GEICO Insurance Co. (GEICO) was granted on November 17, 2014, based on the plaintiffs' claims that Long had no applicable automobile insurance and that, therefore, the plaintiffs' uninsured motorist coverage pursuant to Smith's insurance policy with GEICO was triggered. The amended complaint, filed November 24, 2014, subsequently alleged that Long did have insurance but with policy limits inadequate to cover the plaintiffs' injuries and losses. On January 7, 2016, the matter as to Wendy Smith was resolved and withdrawn followed by Carlee Warren's case, which was resolved and withdrawn on April 8, 2016. The withdrawal form filed with the court notes that the withdrawal was based on a discussion between the parties on their own. On April 13, 2016, the plaintiff filed a Request for Leave to Amend Complaint and a second amended complaint, to which the defendant did not object. Thus, the operative complaint alleges claims of negligence against Long as well as claims for uninsured, as opposed to underinsured, motorist coverage against GEICO.
Notwithstanding abode service upon the original complaint, Long has never filed her appearance and thus, this court duly defaulted Long on April 14, 2016, for her failure to appear. In the trial before the court, the plaintiffs offered testimony regarding their injuries, which for Angeleena Warren included $13 714.39 in medical bills and for Sydney Warren, $1, 874.98 in medical bills. Angeleena, who had a prior fracture to her forearm which had healed, sustained a fracture to her right forearm. Angeleena received occupational therapy and by October 29, 2015, she reported to her doctor that she planned to return to gymnastics and had only mild pain when she engaged in weight bearing activities. Angeleena was unable to participate in softball and dance as well. Sydney also was unable and/or limited in her ability to participate in her usual activities, including dance, softball and summer camp activities due to injuries sustained to her knee. Thus, this court finds that the plaintiffs have proven by a preponderance of evidence that their damages were causally related to Long's negligence and that they have sustained not only $13, 714.39 as to Angeleena and $1, 874.98 as to Sydney in economic damages respectively, but also $15, 000 and $5, 000 in non-economic damages respectively as well.
Having found that Long is liable as a matter of law for damages incurred by the plaintiffs, this court turns to the contract dispute between the plaintiffs, Angeleena and Sydney Warren and the defendant, GEICO, for uninsured motorist's benefits pursuant to the insurance policy of their mother, Wendy Smith. In its brief, the defendant's sole claim is that the plaintiffs cannot establish that the uninsured provisions of Smith's insurance policy are triggered because they cannot establish that Long does not have liability insurance. At trial, the plaintiffs offered the affidavit of the tortfeasor, Long, to which the defendant objects and argues is inadmissible hearsay. In the affidavit, Long avers that she did not own an insured automobile and did not carry liability insurance on any vehicle. The plaintiffs also offered the testimony of Marshal Peter Privitera who testified about his unsuccessful efforts to serve Long with a subpoena for trial, including three trips attempting service at two addresses, as well as seeking information from the Department of Motor Vehicles.
Pursuant to General Statutes § 38a-336c, the plaintiffs are required to make reasonable efforts to establish what liability coverage exists for the owner and operator of an uninsured vehicle. By securing an affidavit of no insurance from Long and producing the marshal who testified about his attempts to serve the subpoena, the plaintiffs argue that they have met their burden of making reasonable efforts. Finally, they argued at trial and in posttrial briefs that the affidavit is admissible under a variety of exceptions to the hearsay rule, specifically, that the statement constitutes an admission of a party, that it is a declaration against civil interest, a declaration against penal interest and finally, that the statement is admissible under the residual exception to the hearsay rule. The plaintiffs also argue that because the defendant has already paid claims pursuant to the uninsured motorist provisions as to Smith and Carlee Warren, the defendant is estopped from arguing that the plaintiffs have not proven that Long is an uninsured motorist. In response, the defendant argues that none of the exceptions to the hearsay rule apply and because the alleged claims paid out were pursuant to settlements, the court may not consider that evidence. The defendant also argues that it is prejudiced by the introduction of the affidavit, as it was never produced in discovery, notwithstanding the plaintiffs' claim that the affidavit was faxed to counsel.
General Statutes § 38a-336c provides: " (a) An insured, when making a claim for uninsured or underinsured motorist benefits, shall make reasonable efforts to establish what liability coverage there is for the owner and operator of an alleged uninsured or underinsured vehicle; and (b) For any motor vehicle accident occurring on or after October 1, 2006, no insurer may require its insured, as a condition of eligibility for payment of uninsured motorist benefits, to provide affidavits or written statements from the owner or operator of the alleged uninsured vehicle attesting to the fact that the individual did not maintain any liability coverage at the time of the motor vehicle accident."
As an initial matter, this court addresses the question which it posed to the parties as to whether the above language relieves the plaintiffs from their burden of proving that they have exhausted available liability coverage as a precondition to obtaining uninsured motorist benefits. Having considered the briefs of the parties and the relevant law on the issue, this court concludes that the plaintiffs still have the burden of proving that they are entitled to claim uninsured motorists based on evidence that the tortfeasor was in fact uninsured.
Connecticut law requires an insured to fully exhaust the available liability coverage for at least one alleged tortfeasor prior to recovering uninsured or underinsured motorist benefits. See, e.g., Ciarelli v. Commercial Union Ins. Cos., 234 Conn. 807, 811, 663 A.2d 377 (1995) (); Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 369, 641 A.2d 783 (1994) (); Kronberg v. New Hampshire Ins. Co., 69 Conn.App. 330, 334, 794 A.2d 561, cert. denied, 260 Conn. 934, 802 A.2d 88 (2002) (); see also General Statutes § 38a-336(b) (); accord General Accident Insurance Co. v. Mortara, 314 Conn. 339, 351-52, 101 A.3d 942 (2014) ().
Moreover, § 38a-336(a)(1) only requires uninsured and underinsured motorist coverage to individuals " who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages . . ." (Emphasis added.) Insurers frequently utilize contractual language that mirrors this statutory language by providing coverage to a claimant who is " legally entitled to collect damages."
" Legally entitled to collect damages from the owner or driver of an uninsured motor vehicle, means that in order to recover under the policy, the plaintiff must prove: (1) that the other motorist was uninsured; (2) that the other motorist was legally liable under prevailing law; and (3) the amount of liability." (Emphasis added; internal quotation marks omitted.) Williams v. State Farm Mutual Automobile Ins. Co., supra, 229 Conn. 367-68; see also Quigley-Dodd v. General...
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