Thomas Cimmino v. Maria Rodriguez et al. (2010)

MEMORANDUM OF DECISION RE ONEBEACON'S MOTION FOR SUMMARY JUDGMENT (148.00)

I. Facts

This action arises out of an automobile collision on May 11, 2008 between an uninsured vehicle operated by the defendant Rodriguez and a vehicle operated by the plaintiff Cimmino.   The complaint sets forth a claim against Rodriguez who has not appeared in the case (Count One), an uninsured motorist claim against OneBeacon Midwest Insurance Company (OneBeacon) which insured the vehicle Cimmino was operating (Count Two), and a claim of bad faith insurance claims handling by OneBeacon in violation of the Connecticut Unfair Insurance Practices Act (CUIPA) General Statutes § 38a-816, giving rising to a violation of the Connecticut Unfair Trade Practices Act (CUTPA) General Statutes § 42-110a (Count Three).

OneBeacon has moved for summary judgment dismissing Counts Two and Three contending that Cimmino's actions have violated and therefore voided the insurance policy issued to Cimmino's mother which purportedly provides coverage to Cimmino.

II. Standard of Review

Practice Book § 17-49 provides that 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.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1983).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

OneBeacon contends that Cimmino has made material and intentional misrepresentations in his answers to interrogatories to the effect that he had “never had back problems of any kind prior to his collision.”   Ex. B to Shiroma Affidavit of March 10, 2010, Response to Interrogatory 20.   As a result of this position, Cimmino did not provide any authorizations for his medical records for treatment prior to the accident, or for employment or tax records, even though he claimed lost wages Id. Ex B, Responses to Document Requests, 1-4.

Despite these difficulties, and with the assistance of a court order, the defendant has assembled a rather startling set of documents from Cimmino's medical treaters tending to show regular medical treatment undergone by Cimmino in 2007 and early 2008, for medical conditions relating to his back quite similar to what is being claimed in this lawsuit to be the result of the May 11, 2008 accident.   See Id., Exs. C through I. In particular, Ex. H, dated November 21, 2007, appears to be a medical record partially prepared and signed by Cimmino (noting his ailments) and reviewed and annotated by a medical practitioner where, Cimmino complains of lower back pain radiating to the neck, graded at “9” out of “10” in severity.   According to Ex. H, the injury was “work” related and not caused by a motor vehicle accident.   In addition, Ex. I is a record of St. Vincent's Hospital in Bridgeport analyzing an MRI of Cimmino's lumbar spine finding “annular bulging of the disc margin” at the L5-S1 area causing “impingement” on “the left nerve routes” as of August 5, 2007.   The injuries claimed in this case include L5-S1 disc herniation, and radiating lower back pain.

In large part, the plaintiff's response to the motion for summary judgment is unsubstantiated speculation set forth in counsel's memorandum in opposition.   Notably absent is any affidavit from Cimmino himself.   In the memorandum it is argued that Cimmino's interrogatory response is true because the injury claimed to be suffered in the accident is not exactly the same as that apparently suffered beforehand.   The memorandum continues for three pages criticizing OneBeacon's claim's practices and then spends considerable time discussing “a [ ]llegations ․ brought to Thomas Cimmino's attention” that Spine Sport (where Cimmino went for treatment until late 2008) was involved “in an illegal Oxycodone and Oxycotin distribution ring.”   Plaintiff's Brief, 11 (pages unnumbered).   The memorandum then theorizes that all the records from Spine Sport (Exs.C-H) are fabricated.   All of this is unsubstantiated by affidavit or other admissible evidence.

However, attached to the plaintiff's memorandum is a document, again unsubstantiated by affidavit, purportedly from St. Vincent's Hospital, stating Cimmino received no treatment at St. Vincent's on August 5, 2007, the date of the St. Vincent's MRI report.   Plaintiff's Memorandum, Ex. B. This document may lend some possible support to the plaintiff's argument that Ex. I (MRI report) is fraudulent and all the documents from Spine Sport are tainted by some unidentified illegal activity.   It also may undercut, to some degree, the defendant's contention that Cimmino's back condition prior to the accident was similar to his present complaints.

While this court is of the belief that Cimmino has much to explain, and has failed to do so during several opportunities, it is not this court's function to decide those issues in the context of a summary judgment motion.   The court determines that there are material facts at issue including Cimmino's physical condition and treatment prior to the accident, and perhaps most importantly the truthfulness of his discovery response.   Some of these questions directly related to Cimmino's credibility, which at this point, is properly in the purview of the factfinder.

IV. Conclusion

For the above reasons, the motion for summary judgment is denied.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

Adams, Taggart D., J.