Young v. Metropolitan Property & Casualty Ins. Co., (AC 18202)

• Decision Date: 26 September 2000
• Docket Number: (AC 18202)
• Court: Connecticut Court of Appeals
• Parties: LEROY J. YOUNG v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

60 Conn. App. 107

758 A.2d 452

LEROY J. YOUNG v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

(AC 18202)

Appellate Court of Connecticut.

Argued October 25, 1999.

Officially released September 26, 2000.

Lavery, Landau and Hennessy, JS. Walter Bansley, with whom, on the brief, was Roger Sullivan, for the appellant (plaintiff).

Frederick L. Murolo, with whom were Karen T. Gerber and, on the brief, Marc J. Ubaldi, for the appellee (defendant).

Opinion

HENNESSY, J.

The plaintiff, LeRoy J. Young, appeals from the decision of the trial court denying his motion for summary judgment and sustaining the objection to the plaintiffs motion for summary judgment by the defendant, Metropolitan Property and Casualty Insurance Company.¹ The plaintiff claims that the trial court improperly denied his motion for summary judgment on the basis of its finding that there was no privity between the defendant and Continental Insurance Company (Continental). The defendant, in turn, contends that this appeal should be dismissed because the trial court's denial of summary judgment in this case is not a final judgment from which an appeal may be taken.² We affirm the trial court's denial of the plaintiffs motion for summary judgment.

The court found the following facts. On September 12, 1991, the plaintiff, while driving an automobile owned and insured by his employer, was involved in an accident. The vehicle the plaintiff was driving was insured by Continental, which, under its policy, provided $1 million in underinsured-uninsured motorist benefits. The plaintiff, at the time of the accident, maintained an insurance policy with the defendant for two vehicles that he owned. The defendant's policy provides underinsured-uninsured coverage of $100,000 per vehicle and, due to intrapolicy stacking allowed at the time of the accident³ where as here a separate premium is paid for each of the two vehicles, avails the plaintiff a total of $200,000 in excess coverage. The Continental policy is primary pursuant to the parties' insurance contracts and the then existing underinsured-uninsured law. The tortfeasor had $100,000 in liability insurance coverage that was paid to the plaintiff.

The plaintiff, whose damages exceeded the policy limits recovered from the tortfeasor and the amount available pursuant to the underinsured motorist coverage provision of the Continental policy, filed a complaint against the defendant, seeking to recover the aggregate of the uninsured-underinsured policy coverage on each of the automobiles covered by the defendant. The plaintiff, pursuant to the terms of the Continental policy, also initiated arbitration proceedings against Continental to recover underinsured benefits. Although the defendant's policy did not have an arbitration provision, the plaintiff, by letter, on three separate occasions, invited the defendant to join in the arbitration. The defendant declined.

The arbitration proceeding between the plaintiff and Continental produced a finding and award of damages in the amount of $1,150,000, which, because of setoffs and credits, was reduced to $762,850. As a result of the arbitration panel decision, the plaintiff filed his motion for summary judgment against the defendant, arguing that because of intrapolicy stacking, the defendant, as an excess carrier, is required to provide him with underinsured motorist coverage; that the setoffs and credits decided by the arbitration panel were correctly allocated to the primary insurer Continental; and that the defendant is collaterally estopped from contesting the arbitration award as to damages.

The court denied the plaintiff's motion for summary judgment. The trial court found that, as a matter of law, because there is no privity between the defendant and Continental, the defendant is not collaterally estopped from contesting the decision of the arbitration panel. This appeal followed.

We begin by stating our standard of review on appeal. "The standard of review for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998); Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997); see Practice Book § 384, now Practice Book (1998 Rev.) § 17-49." (Internal quotation marks omitted.) Levine v. Advest, Inc., 244 Conn. 732, 743, 714 A.2d 649 (1998).

"On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment [against the plaintiff] as a matter of law, our review is plenary and we must decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record.... Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995)." (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

As a preliminary matter we must decide whether this appeal should be dismissed for lack of a final judgment. The defendant raised this issue previously in its motion to dismiss the plaintiff's appeal, which motion this court denied on June 3, 1998.

"The denial of a motion for summary judgment is not ordinarily appealable because it is not a final judgment. See Connecticut National Bank v. Rytman, 241 Conn. 24, 34, 694 A.2d 1246 (1997)." Milford v. Andresakis, 52 Conn. App. 454, 455 n.1, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999). Our Supreme Court has held, however, that an appeal may be taken from the denial of a motion for summary judgment when such motion raises the defense of collateral estoppel. Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 194-95, 544 A.2d 604 (1988). The court viewed the defense of collateral estoppel as "a civil law analogue to the criminal law's defense of double jeopardy, because both invoke the right not to have to go to trial on the merits." Id., 195. In the present case, the plaintiff's motion for summary judgment is founded on a claim of offensive, as opposed to defensive, collateral estoppel. Nonetheless, we can see no reason why an immediate appeal may not also be taken from the denial of such a motion. For purposes of our jurisdiction to entertain this appeal, we view the distinction between offensive and defensive collateral estoppel as inconsequential. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303 n.19, 596 A.2d 414 (1991). If the plaintiff is correct that the defendant is bound by the decision of the arbitration panel with regard to the question of damages, it would be unfair to require the plaintiff to expend its resources relitigating this issue. See Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, supra, 194. Appellate review in this case is therefore appropriate.

The plaintiffs primary argument is that the defendant should be collaterally estopped from contesting the decision of the arbitration panel because it is in privity with Continental. "`The [doctrine] of ... collateral estoppel protect[s] the finality of judicial determinations, conserve [s] the time of the court, and prevent[s] wasteful relitigation.... Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.' Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 [(1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989)]; see also State v. Ellis, 197 Conn. 436, 462-67, 497 A.2d 974 (1985); In re Juvenile Appeal (83-DE), 190 Conn. 310, 313-18, 460 A.2d 1277 (1983); Gennarini Construction Co. v. Messina Painting & Decorating Co., 15 Conn. App. 504, 509-10, 545 A.2d 579 (1988)." Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). "[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991). Weiss v. Statewide Greivance Committee, 227 Conn. 802, 818, 633 A.2d 282 (1993).... [T]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. Aetna Casualty & Surety Co. v. Jones, [supra, 220 Conn. 297]. Crochiere v. Board of Education, [227 Conn. 333, 345, 630 A.2d 1027 (1993)]." (Internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997). Issue preclusion, or collateral estoppel "`express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.' State v. Ellis, [supra, 465]." Mazziotti v. Allstate Ins. Co., supra, 813.

In this case, to extend the concept of collateral estoppel to preclude the defendant from contesting the arbitration award, we must determine whether privity exists between the defendant and Continental. "Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party. State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987); P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983); State v. Wilson, 180...