Edson Casseus et al. v. Nationwide Property & Casualty Insurance Co. (2010)

MEMORANDUM OF DECISION ON DEFENDANT NATIONWIDE INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT DATED NOVEMBER 25 2009 (# 108.00)

Should a court entertain a Motion for Summary Judgment addressed to the plaintiffs' entire cause of action when the plaintiffs are in the process of amending and/or formulating their complaint?

This lawsuit is an underinsured motorist claim for personal injuries arising out a motor vehicle collision on December 11, 2007.   The plaintiffs are two passengers in an automobile driven by Johane Leon, a non-party, seeking payment against the underinsured motorist policy issued by the defendant, the Nationwide Insurance Company.   The defendant's November 25, 2009 Motion for Summary Judgment states:” ․ the defendant, Nationwide Insurance Company (‘Nationwide’), moves for summary judgment on the grounds that there is no underinsured motorist coverage available to the plaintiffs under the Nationwide policy.   The language of the Nationwide policy, Connecticut Insurance Regulations and controlling case law allow Nationwide to reduce the underinsured motorist coverage (‘UIM’) available to each claimant by any amount paid by the tortfeasor.   In this case, the available per person coverage, $50,000, is reduced by the total amount paid by the torfeasor, $50,000, reducing the UIM coverage to zero.   Therefore there are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law.”

It appears to be little in the way of factual dispute.   On December 11, 2007, the two named plaintiffs, Edson Casseus and Claude Moreau, were passengers in a motor vehicle operated by Johane Leon. A collision occurred on the public highways in the City of Stamford between two vehicles.   The second vehicle was operated by Elsa Cardona.   Nationwide Automobile Policy # 51 06 E 063205 was in effect on December 11, 2007.   The policy provided underinsured motorist coverage in the amount of $50,000 per person and $100,000 per occurrence.   The operator of the other vehicle, Elsa Cardona, was insured by a Liberty Mutual automobile policy that provided bodily injury coverage in the amount of $25,000 per person and $50,000 per occurrence.   Prior to the commencement of this lawsuit by the plaintiffs against Nationwide for UIM coverage, Liberty Mutual paid the full $50,000 thereby exhausting the limits of the Liberty Mutual policy.   The following payments were made;  Casseus $15,000, plaintiff Moreau $15,000, the operator of the vehicle in which Casseus and Moreau were passengers, Johane Leon $10,000 and another passenger in Leon's car, Mathurin $10,000 for a total payment of $50,000.

Thereafter both plaintiffs made a demand on Nationwide for coverage under its UIM provision.   Nationwide denied the claim maintaining that there was no available coverage to the plaintiffs and that pursuant to the Nationwide policy the available coverage, $50,000 per person, was reduced by the $50,000 paid on behalf of the tortfeasor, reducing the available UIM per person coverage under the Nationwide Policy to zero.

By a writ, summons and complaint dated July 2, 2009 the two plaintiffs filed this instant lawsuit naming as the only defendant, Nationwide Property and Casualty Insurance Company.   The lawsuit was in six counts.   On behalf of Edson Casseus three counts were alleged:  negligence of Cordona and the resulting UIM claim against Nationwide;  Connecticut Unfair Insurance Practices Act Gen.Stat. § 38a-815 et seq.  (CUIPA);  and Connecticut Unfair Trade Practices Act Gen.Stat. § 42-110a et seq.  (CUTPA).  The same three counts were alleged by the plaintiff, Claude Moreau.   The defendant filed a Motion to Strike dated August 19, 2009 (# 102.01), which after briefing and argument was granted on January 15, 2010.   The Memorandum of Decision (# 113.00) granted the entire Motion to Strike and removed counts three, four, five and six sounding in CUIPA and CUTPA leaving counts one and two alleging UIM personal injuries [49 Conn. L. Rptr. 219].

The defendant in the interim filed this Motion for Summary Judgment dated November 25, 2009 (# 108.00).   The parties fully briefed the summary judgment motion and appeared before the court on February 8, 2010 and offered oral argument.   The matter was submitted to the court(# 108.87).

Upon a later review of the file after oral argument the court noted that the plaintiff filed a Substitute Compliant dated January 29, 2010 (# 119.00).   The Substitute Complaint is now in eight counts.   The two new counts are breach of the implied covenant of good faith and fair dealing.   The plaintiffs have amended the four CUTPA and CUIPA counts.   The defendant filed a Motion to Strike dated March 18, 2010 (# 127.00) addressed to that Substitute Complaint seeking to strike the CUTPA and CUIPA counts as well as the two new counts of breach of the implied covenant of good faith and fair dealing.

The court now turns to the November 25, 2009 Motion for Summary Judgment, which preceded the January 15, 2010 decision on the Motion to Strike, the January 29, 2010 Substitute Complaint and the March 18, 2010 Motion to Strike.   The defendant's Motion for Summary Judgment does not identify which of the then existing six counts were the subject of the summary judgment.   The court assumes from its wording that the entire cause of action was being attacked.   In addition, the Motion for Summary Judgment was not modified after the original complaint was reduced to two counts by the granting of the Motion to Strike on January 15, 2010 (# 113.00) and was not modified after the Substitute Complaint was filed (# 119.00) increasing the complaint to eight counts.

P.B. § 17-49 is the authority for filing for summary judgments:  “The judgment sought 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 matter of law.”  P.B. § 17-44 states:  “These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.”   It is common for motions for summary judgment to be addressed to certain counts of the complaint as well as to the entire cause of action.   Upon the pleadings that are currently in the file the court cannot make a determination as to whether the motion for summary judgment dated November 25, 2009 is addressed to any of the specific counts of the complaint and/or the entirety of the complaint.   From the language of the motion it appears to be directed toward the UIM claim, the first two counts.   It may very well be that a decision on the motion for summary judgment in favor of the defendant that there is no UIM claim since the tortfeasor's payment of $50,000 exhausted the Nationwide UIM per person limits would render moot any claims for a breach of the covenant of good faith and fair dealing, CUIPA and/or CUTPA.   These issues were neither briefed by the parties nor argued before this court on February 8, 2010.

A summary judgment is allowed to be addressed to a complaint, counterclaim, cross-complaint or any count thereof.   Condor Capital Corporation v. Michaud, Superior Court judicial district of Hartford at Hartford, Docket Number CV 99-0588911 S (July 25, 2000, Peck, J.) [27 Conn. L. Rptr. 697].   A summary judgment cannot be addressed to a special defense.   Prigitano v. Connecticut Life and Casualty Insurance Company, Superior Court judicial district of New Haven at Meriden, Docket Number CV 96-0254302 S (January 22, 1998, Dorsey, J.T.R.).   Since the pleadings are not closed the court cannot determine if the issue upon which the defendant's summary judgment motion is based, may not be required to be raised by a special defense.  P.B. § 10-50.   Merdinger v. Sullivan, Superior Court judicial district of Danbury at Danbury, Docket Number CV 00-0339799 S (June 25, 2002, White, J.) (“the rules of practice similarly make no provision for a party to obtain judgment as to one particular factual issue involved in the action”).

Because of the lack of clarity as to which counts of which complaint are subject to the motion for summary judgment, the court is going to deny the motion for summary judgment without prejudice.  State v. Smith, 289 Conn. 598, 612 (2009).

The court assumes that the defendant's Motion to Strike dated March 18, 2010 (# 127.00) will be resolved either by the parties themselves and/or an order of the court.   The Motion to Strike (# 127.00) was assigned for a short calendar hearing on April 5, 2010.   The plaintiff was granted an extension of time to file opposition documents.   These opposition documents have not been filed nor has the Motion to Strike (# 127.00) been reassigned for a hearing.   Once the determination has been made by the court and/or the parties as to what the existing pleadings are, then the defendant, Nationwide, is free to file a new motion addressing the issues raised in the Motion for Summary Judgment dated November 25, 2009 (# 108.00) or any other issues that the defendant deems appropriate.   Any future motion for summary judgment must address the counts by number so it is clear what the legal issues are before the court.

The defendant's Motion for Summary Judgment dated November 25, 2009 (# 108.00) is denied without prejudice.

BY THE COURT

Hon. Kevin Tierney Judge Trial Referee

Tierney, Kevin, J.T.R.