Robert Counts v. Progressive Casualty Insurance Co. (2009)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (# 103)

The defendant has moved for summary judgment, arguing that there is no dispute that the plaintiff's policy does not provide coverage because the monetary limits of the uninsured/underinsured motorist policy have been reduced by amounts paid to a third party under the same policy's liability coverage.   The plaintiff disagrees, and argues that despite the payment to a third party, the policy limits have not been reduced to zero.   For the following reasons, the motion is denied.

The undisputed facts are as follows.   The plaintiff had an insurance policy with the defendant, wherein the uninsured/underinsured limits were $20,000 per person and $40,000 per accident.   On September 6, 2007, the plaintiff was driving his motor vehicle in New Haven with a passenger, Mary Hardy.   The plaintiff was involved in an accident with Angelo Pesapane, an uninsured driver.   Hardy and Pesapane both alleged in complaints that the plaintiff was negligent in causing the accident.   Hardy resolved her matter against the plaintiff, and signed a release accepting $20,000 in full and final settlement of her claims against the plaintiff.   Pesapane also accepted monies in the amount of $9,500 in full and final settlement of his claims against the plaintiff.

The plaintiff's policy with the defendant, on the issue of uninsured/underinsured benefits stated as follows:

Subject to the Limits of Liability, if you pay the premium for Uninsured/Underinsured Motorist Coverage, we will pay for damages, other than punitive, exemplary, or statutory multiple damages, which an uninsured person is legally entitled to recover from an owner or operator of an uninsured motor vehicle policy because of bodily injury:  (1) sustained by an insured person;  (2) caused by an accident;  and (3) arising out of the ownership, maintenance, or use of an uninsured motor vehicle ․ The Limits of Liability under this Part III shall be reduced by all sums:  (1) paid because of bodily injury by or on behalf of any persons or organizations that may be legally responsible, including, but not limited to, all sums paid under Part I-Liability to Others;  (2) paid or payable to the insured person under Part II-Medical Payments Coverage;  and (3) paid or payee to the insured person because of bodily injury under any workers' compensation law or similar law.

In the arguments made both orally and in writing, the disputed question is whether the $20,000 paid to Hardy exhausted the limits of the plaintiff's policy.   The plaintiff argues that the language of the policy provides for $40,000 in total coverage per accident, while the defendant argues that the Hardy payment reduced the uninsured motorist coverage to zero.

In support of its argument, the defendant cites Nichols v. Salem Subway Restaurant, 98 Conn.App. 837 (2006) and Jacaruso v. Lebski, 118 Conn.App. 216 (2009).   The court finds that these cases support the argument of the plaintiff.   In Nichols, the plaintiff's decedent carried uninsured/underinsured motorist benefits in the amount of $500,000, which the defendant State Farm paid to the plaintiff's decedent's passengers.   The Appellate Court affirmed the trial court's granting of summary judgment, concluding that the $500,000 payments reduced the coverage under the terms of the policy.  98 Conn.App. at 844.   Similarly, in Jacaruso, the plaintiff maintained an uninsured/underinsured motorist policy with a $300,000 limit.   The plaintiff's insurance company paid $400,000 ¹ to plaintiff's passengers to settle the claim.   Again, the Appellate Court affirmed the trial court's granting of summary judgment on the ground that the $400,000 paid reduced the coverage to zero.  118 Conn.App. at 223.   In both cases, the coverage limit was paid.   Here, the plaintiff's coverage is $40,000 per accident and $20,000 was paid to his passenger.   Under the terms of the policy, the total amount of coverage for an accident has not yet been paid out.   The plaintiff's passenger recovered all that she was legally entitled to but, under the plain terms of the policy, that payment did not reduce the total coverage for the accident to zero.

The motion for summary judgment is denied.

Maureen M. Keegan, J.

FOOTNOTES

FN1. The settlement was paid from both the plaintiff's liability coverage and umbrella insurance coverage..  FN1. The settlement was paid from both the plaintiff's liability coverage and umbrella insurance coverage.

Keegan, Maureen M., J.