United Nat. Indem. Co. v. Zullo
| Decision Date | 18 January 1956 |
| Court | Connecticut Supreme Court |
| Parties | UNITED NATIONAL INDEMNITY COMPANY v. John ZULLO et al. Supreme Court of Errors of Connecticut |
Joseph G. Shapiro, Bridgeport, with whom was Milton H. Belinkie, Bridgeport, for appellant (plaintiff).
Paul V. McNamara, Bridgeport, for appellees (defendants).
Before INGLIS, C. J., and BALDWIN, O'SULLIVAN and DALY, JJ., concurring.
This is an action for a declaratory judgment in which there are three defendants, John Zullo, Fred Zullo and the latter's wife, Carmella Zullo. Neither John Zullo nor Fred Zullo appeared at the trial of the case. On this appeal, the only question pressed for decision is whether the trial court committed reversible error in denying the plaintiff's motion for a default against those two defendants.
The complaint contains the following allegations: In 1949 the plaintiff issued to John Zullo a policy insuring him against liability for damages arising out of the operation of a certain automobile. This policy covered not only John Zullo but also any person who might operate the automobile with his consent. On March 11, 1950, while the policy was in effect, Fred Zullo was operating the automobile with John Zullo's consent and at that time Carmella Zullo was a passenger in the car. The automobile was in a collision and as a result Carmella Zullo was severely injured. In an action sounding in negligence, Carmella Zullo recovered a judgment for $20,000 against Fred Zullo. This judgment was affirmed in the Supreme Court of Errors. Zullo v. Zullo, 138 Conn. 712, 89 A.2d 216.
As one of the conditions of coverage, the policy of insurance required that the insured co-operate with the plaintiff company and upon its request attend trials and assist in effecting settlements, in securing and giving evidence, in obtaining the attendance of witnesses and in the conduct of suits. Immediately after the accident, Fred Zullo gave to the company a written statement in which he stated that he believed that the accident had been caused by his falling asleep and then, in attempting to step on the brake, stepping on the 'gas' instead, thereby causing the car to hit several guideposts and a telephone pole. The company relied upon that statement in its preparation for and trial of the negligence action.
It is further alleged that at the time Fred Zullo made the statement he in fact had certain other material information and evidence as to the real cause of the accident which he deliberately refrained from imparting to the company. After the trial of the negligence action and while the appeal to the Supreme Court of Errors was pending, Fred Zullo disclosed to the company for the first time all of the information concerning the cause of the accident which he had previously concealed. Thereupon the company disclaimed liability under its policy and reserved its rights to contest that liability even though it continued to represent its insured on the appeal.
In the complaint, the plaintiff claims that because of the concealment, non-co-operation and misrepresentation of Fred Zullo, the policy does not, under its terms, afford any coverage to Fred and John Zullo relative to the judgment secured against them by Carmella Zullo. The complaint concludes with the allegation that '[t]here is an actual and substantial question in dispute between the parties, and a substantial uncertainty as to their legal relationship growing out of the facts hereinbefore stated requiring settlement.'
The prayer for relief was that the court render a declaratory judgment determining whether the policy of insurance affords the defendants John and Fred Zullo coverage on account of the accident of March 11, 1950, and the judgment secured by the defendant Carmella Zullo in June, 1951, or whether the alleged concealment, non-co-operation and misrepresentation of the defendant Fred Zullo excludes any coverage on the part of the plaintiff under the terms of the policy, and whether such concealment, non-co-operation and misrepresentation are valid defenses in favor of the plaintiff against any claims that might be made by any person under the terms of the policy. There was no prayer for coercive relief.
When the case was reached for trial, neither John Zullo nor Fred Zullo was present in court. The record does not include any motion for default against them or any ruling thereon. The finding, however, recites that such a motion was made, and this finding is supported by the appendix to the plaintiff's brief. That the motion was made is not disputed by the defendant Carmella Zullo, and among the conclusions of the court set forth in the finding is one to the effect that the granting of a default against John and Fred Zullo at the time of the trial would have been inappropriate in this type of action. We will, therefore, decide the case on the assumption that a motion for default was made and denied by the court.
The court tried the case very largely on documentary evidence. From the finding, which, in the main, finds the facts as alleged in the complaint, it appears that the plaintiff's case rested quite largely on the fact that after the trial of the negligence action the defendant Fred Zullo made an affidavit to the effect that the cause of the accident had been his wife's striking him on the head with a flashlight. The court, however, concluded that this affidavit was false and that the statement given by Fred Zullo to the company before the trial was true. It therefore rendered judgment declaring that the policy of insurance affords the defendants John and Fred Zullo coverage on account of the accident and the judgment secured by Carmella Zullo, that the alleged acts of claimed concealment, non-co-operation and misrepresentation by Fred Zullo do not exclude coverage under the terms of the policy and they are not valid defenses in favor of the plaintiff against the claim of Carmella Zullo under the policy.
The plaintiff takes the position on this appeal that it was reversible error for the court to deny the motion for default against John and Fred Zullo for their failure to appear at the trial. In actions for declaratory judgments, the 'form and practice prescribed for civil actions shall be followed.' Practice Book, § 278(a). In civil actions generally, the failure of a defendant to appear for the trial of the case is ground for the entering of a...
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