Whitfield v. Empire Mut. Ins. Co.

• Decision Date: 21 January 1975
• Citation: 167 Conn. 499,356 A.2d 139
• Court: Connecticut Supreme Court
• Parties: Mae WHITFIELD, Administratrix (ESTATE of Julius C. WHITFIELD), et al. v. EMPIRE MUTUAL INSURANCE COMPANY et al.

Page 139

356 A.2d 139

167 Conn. 499

Mae WHITFIELD, Administratrix (ESTATE of Julius C. WHITFIELD), et al. v. EMPIRE MUTUAL INSURANCE COMPANY et al.

Supreme Court of Connecticut.

Jan. 21, 1975.

Philip R. Shiff, New Haven, for appellant (named defendant).

Henry W. O'Brien, Hamden, for appellee (defendant Atlantic Mutual Ins. Co.).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

This case arose out of a one-car accident involving an automobile operated by Herman Cooper, hereinafter Cooper, and owned by C. Kenneth Theroux, an automobile repairer, resulting in the death of the plaintiff's decedent, Julius C. Whitfield, and in serious injuries to the plaintiff Joseph Whitfield, both of whom were passengers in the automobile.

The present action was brought by the plaintiffs against the two defendant insurance companies, Empire Mutual Insurance Company, hereinafter Empire, as liability insurer of Cooper, and Atlantic Mutual Insurance Company, hereinafter Atlantic, as liability insurer of Theroux, under § 38-175 of the General Statutes. ¹ The trial court, in granting the plaintiffs' motion for summary judgment, ruled that § 14-60, ² as in effect at the time of the accident, required a conclusion that the coverage afforded to Cooper by Empire's insurance policy was primary insurance and that afforded by Atlantic was excess insurance, and judgment was rendered accordingly, from which judgment the defendant Empire has appealed to this court.

Although Empire's assignments of error attacked three paragraphs of the finding and the court's refusal to include therein four paragraphs of the draft finding, its counsel conceded in oral argument that there is no real dispute as the the facts found which are relevant to the issues to be decided and which are hereinafter set forth.

On September 21, 1968, Cooper was operating an automobile owned by Theroux when it was involved in a collision which resulted in the death of Julius C. Whitfield and injuries to Joseph Whitfield. Cooper had left his car at Theroux's automobile repair shop for repairs and Theroux had loaned Cooper the car involved in the accident as a temporary substitute for the one being repaired. As a result of the collision, the plaintiff Mae Whitfield, administratrix, obtained a judgment against Cooper in the amount of $22,000, and the plaintiff Joseph Whitfield obtained a judgment against Cooper in the amount of $27,000.

At the time of the accident there was in full force and effect a liability insurance policy issued by Empire to Cooper covering his liability with respect to his operation and use of his automobile or any non-owned automobile, subject to the provisions and conditions of the policy, with $20,000 limits of liability for each person and each occurrence. An express condition of the policy provided that 'the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.' ³ It is not disputed that the automobile involved in the accident was being operated by Cooper as a 'temporary substitute automobile' within the meaning of the Empire policy. At the time he borrowed Theroux's automobile, Cooper signed an agreement which contained a specific reference to his coverage under the Empire policy. ⁴

Also in full force and effect at the time of the accident was a liability insurance policy issued by Atlantic to Theroux which expressly covered the liability of Cooper with respect to his operation of the automobile owned by Theroux with $100,000/$300,000 limits and contained the statement that such coverage was 'primary insurance.'

On the basis of the foregoing facts, the court concluded that § 14-60 of the General Statutes required that the Empire policy be the primary coverage, that it governed any inconsistency in the Empire policy, that it required that the coverage afforded to Cooper under the Atlantic policy be considered as excess insurance and that the statute, as thus interpreted, is not unconstitutional. Judgment was rendered accordingly for the plaintiffs to recover from the defendant Empire a total of $20,000, plus interest and costs, and from the defendant Atlantic a total of $29,000 plus interest and costs. It is from this judgment that the defendant Empire has appealed, making the basic claim that the court erred in holding that § 14-60 required a conclusion that Empire's policy afforded primary coverage and Atlantic's excess coverage with respect to the judgments sued on, contrary to the specific provisions of the two policies, and making the further claim that the statute, as thus construed, is unconstitutional.

It is uncontroverted that, as found by the trial court, on the basis of the specific provisions of the insurance policies, the defendant Atlantic's coverage-afforded to Cooper with respect to his liability to the plaintiffs-was primary and the defendant Empire's coverage was excess. It appears to be equally clear that § 14-60 mandates that the opposite effect be given to the coverage afforded by the two policies, namely that Empire's coverage was, by statute, primary and Atlantic's excess. After requiring that 'the person operating such loaned motor vehicle . . . shall furnish proof to such . . . repairer that he has liability . . . insurance which will cover any damage to any person . . . caused by the operation of such loaned vehicle for which the operator would have been liable if he had also been the owner,' the statute states unequivocally: 'Such operator's insurance shall become the prime coverage.' (Emphasis added.) By adding these words the legislature obviously sought to eliminate any confusion or uncertainty as to which carrier has primary coverage in a situation such as this.

The language is clear and unambiguous and requires no interpretation. 'The words of a statute are to be interpreted in their natural and usual meaning unless the context indicate that a different meaning was intended. By our statute (General Statutes § 1-1) words and phrases are to be construed according to the commonly plain usage of language.' Brown v. New Haven Taxicab Co., 92 Conn. 252, 254, 102 A. 573; Hope v. Cavallo, 163 Conn. 576, 580, 316 A.2d 407. The requirement that the borrowing operator of the substitute automobile furnish proof to the repairer of liability coverage separate and distinct from that afforded under the repairer's policy, as Cooper did here, further strengthens the conclusion reached by the trial court.

Since Empire's policy was issued in New Haven, and shows the address of its named insured, Cooper, to be New Haven and shows that the automobile insured would be principally garaged there, the conclusion is inescapable that it was intended to have its operative effect in Connecticut and that it must be construed in the light of the Connecticut law as it existed at the time of the issuance of the contract of insurance. 'The general rule is that the validity and the construction of a contract are determined by the law of the place where the contract was made. But if the contract is to have its operative effect or place of performance in a jurisdiction other than the place where it was entered into, our rule is that the law of the place of operative effect or performance governs its validity and construction.' Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 637, 220 A.2d 254, 256. See also Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 253, 205 A.2d 780; Graham v. Wilkins, 145 Conn. 34, 40, 138 A.2d 705; Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 338, 143 A. 163. By doing business and issuing policies in Connecticut, Empire subjected...