Stevens v. Hartford Acc. and Indem. Co.

• Citation: 664 A.2d 826,39 Conn.App. 429
• Decision Date: 19 September 1995
• Docket Number: No. 13337,13337
• Parties: John D. STEVENS v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.
• Court: Appellate Court of Connecticut

Page 826

664 A.2d 826

39 Conn.App. 429

John D. STEVENS v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.

No. 13337.

Appellate Court of Connecticut.

Argued April 20, 1995.

Decided Sept. 19, 1995.

Charles J. Goddard, Waterbury, for the appellant (plaintiff).

Philip F. von Kuhn, Brideport, for the appellee (defendant).

Before DUPONT, C.J., and SCHALLER and SPEAR, JJ.

SCHALLER, Judge.

The plaintiff appeals from the judgment of the trial court denying his application to proceed with arbitration. The plaintiff claims that the trial court improperly denied the application by deciding the residency issue (1) when the case should have been submitted to mandatory arbitration for resolution of all coverage issues, including residency, pursuant to General Statutes § 38a-336 (previously § 38-175c), (2) after a mistrial had been declared by a prior trial court following our remand in Stevens v. Hartford Accident & Indemnity Co., 29 Conn.App. 378, 615 A.2d 507 (1992) (Stevens I ), thereby mandating a complete retrial before a trial court or a panel of arbitrators and (3) without giving the parties an adequate opportunity to be heard. We reverse the judgment of the trial court.

The following facts are relevant to our consideration of the plaintiff's claims. On April 11, 1990, the plaintiff sought to compel arbitration on the uninsured motorist insurance policy held by his father on the ground that he was a resident in his father's household. The defendant argued that residency was a question of law and a threshold issue to arbitration and, therefore, needed to be resolved by the court. The plaintiff's position was that residency was a coverage issue and, therefore, arbitrable. The plaintiff, however, agreed to have the court resolve this issue on the merits. Id., at 379 n. 1, 615 A.2d 507. Judge James D. O'Connor held an evidentiary hearing on October 3 and 4, 1990, and reserved decision. Judge O'Connor died without rendering judgment. Judge Arnold W. Aronson found a handwritten, unsigned document among Judge O'Connor's papers. On the basis of that document, Judge Aronson ruled that the plaintiff was not a resident of his father's household and, therefore, did not have standing to demand arbitration.

The plaintiff appealed Judge Aronson's decision to this court. Id., 378. The plaintiff argued on appeal that Judge Aronson had improperly based his ruling on Judge O'Connor's handwritten, unsigned decision. We agreed with the plaintiff and held that "Judge O'Connor's handwritten decision, which was neither signed by him nor filed with the clerk, could not be given the force or effect of a judgment of the court." Id., at 381, 615 A.2d 507. We held, in addition, that "upon the death, disability or resignation of a judge of the Superior Court during the pendency of trial or hearing to the court, a successor judge should take the following steps pursuant to the authority granted by [General Statutes] § 51-183f: (1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted; (2) determine, on the basis of such record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties; (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then; (4) upon request of any party, or upon the court's own request, recall any witness whose testimony is material and disputed and who is available to testify without due burden; (5) take any other steps reasonably necessary to complete the proceedings; and (6) render a decision based on the successor judge's own findings of fact and conclusions of law." ¹ Id., at 385-86, 615 A.2d 507.

On remand, Judge Aronson reviewed the entire existing record, testimony, and proposed findings of fact submitted by both the parties. On March 3, 1993, Judge Aronson issued a memorandum of decision in which he declared a mistrial. Judge Aronson found that because the credibility to be given to the testimony of two witnesses, the plaintiff and his father, was the determining factor, it would be inappropriate to decide the issue of residency without a complete retrial.

The plaintiff then reclaimed the original application to proceed with arbitration dated April 11, 1990, seeking a hearing before a panel of arbitrators as opposed to a retrial before the Superior Court. On April 19, 1993, a hearing was held before the trial court, O'Neill, J., who thereafter reserved decision. Judge O'Neill subsequently issued a memorandum of decision on August 6, 1993, denying the application on the basis of the merits of the issue of residency. The plaintiff filed a motion for reconsideration dated August 13, 1993, and a hearing was held on October 25, 1993. A second hearing was held on February 7, 1994, on the motion for reconsideration. Judge O'Neill denied that motion, stating, in part, that after a judge dies "the successor judge should take the following steps, and [the Appellate Court] gave us a six numbered laundry list--of the things to do, the last of which is render a decision based on the successor judge's, that's me, own findings of fact and conclusions of law. I thought that that's what I was doing in my memorandum of law. I said some of those things. I reviewed the record, considered everything and see it as a termination because everybody had been working on the question of residency up to here. I didn't see why we should suddenly change and say somebody else should work on the question of residency." Judge O'Neill added that he did not find that proceeding with the trial had prejudiced any party.

I

The plaintiff claims that residency is a coverage issue and the case must be submitted to arbitration for resolution pursuant to General Statutes (Rev. to 1989) § 38-175c. ² The plaintiff asserts that § 38-175c has removed the power to waive mandatory arbitration from both parties.

"General Statutes § 38-175c requires binding arbitration for 'final determination of insurance coverage' with respect to uninsured motorist claims if the insurance policy includes a provision for binding arbitration." Gaudet v. Safeco Ins. Co., 219 Conn. 391, 394-95, 593 A.2d 1362 (1991); see also Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 657, 591 A.2d 101 (1991); Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). "Our Supreme Court has made it abundantly clear that the issue of coverage is to be decided through the arbitration process and not by the courts. Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 185, 520 A.2d 202 (1987)." Quinn v. Middlesex Ins. Co., 16 Conn.App. 209, 211-12, 547 A.2d 95, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). Our Supreme Court has held that the intent and effect of § 38-175c is to "remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration." Oliva v. Aetna Casualty & Surety Co., supra, 181 Conn., at 42, 434 A.2d 304; see also Wilson v. Security Ins. Group, 199 Conn. 618, 622, 509 A.2d 467 (1986); Lane v. Aetna Casualty & Surety Co., 203 Conn. 258, 263, 524 A.2d 616 (1987). Since § 38-175c provides mandatory arbitration only for coverage issues, we must first determine whether residency is an issue of coverage or arbitration.

"The arbitrability of a dispute, by contrast, is a legal question for the trial court to decide as a threshold matter." Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn.App. 803, 806, 623 A.2d 66 (1993). "[A] coverage issue is one that is governed wholly by the policy language ... or involves the interpretation of both statutory and policy language ... or otherwise implicates the scope of coverage afforded by the terms of the policy." (Citations omitted.) Id., at 806, 623 A.2d 66. "An issue of arbitrability, by comparison, is one that addresses the arbitrability of the claim and is capable of being decided by the court as matter of law irrespective of the terms of the policy." Id., at 807, 623 A.2d 66. "Where an issue may be fairly characterized as either (1) an issue of arbitrability, i.e., a question for the courts to decide in the first instance, or (2) an issue of insurance coverage, i.e., a question for the arbitrator to decide in the first instance, legislative policy requires the court to elect the latter characterization and submit the issue to arbitrator together with all other issues of insurance coverage." Gaudet v. Safeco Ins. Co., supra, 219 Conn. at 399, 593 A.2d 1362.

In Security Ins. Co. of Hartford v. DeLaurentis, supra, 202 Conn., at 188, 520 A.2d 202, our Supreme Court determined that the issue of whether a policy's uninsured motorist coverage provision extended benefits to accidents involving underinsured vehicles was essentially a coverage question. On the other hand, the question of whether the statutory duty to arbitrate coverage issues applied to motorcycle insurance policies was a threshold legal question for the court to decide. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 523 A.2d 477 (1987). The issue of whether the failure to exhaust the liability coverage of an alleged tortfeasor's automobile liability insurance policy precluded a plaintiff from recovering underinsured motorist benefits was a coverage question. Lane v. Aetna Casualty & Surety Co., supra, 203 Conn., at 266, 524 A.2d 616. A dispute involving whether fleet policies could be stacked and whether uninsured motorist benefits should be set off by the amount of workers' compensation benefits collected were classified as coverage issues. Wilson v. Security Ins. Group, supra, 199 Conn., at 618, ...