Garrett Fancher v. GEICO (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

FACTS AND PROCEDURE:

On or about May 22, 2010 Eugene McDougal (hereinafter also the “tortfeasor”) was operating a motor vehicle in Hartford without the permission of the owner of the vehicle when he was pulled over by a Hartford Police Officer, the plaintiff, Officer Garrett Fancher (hereinafter also “Fancher”) who ordered the tortfeasor to turn off the ignition and exit the motor vehicle.   The tortfeasor then reached under the front seat of the motor vehicle and, with the ignition still on, although in park, attempted to exit the vehicle on the passenger side.   The plaintiff then entered the motor vehicle on the driver's side to apprehend the tortfeasor and gain control of the vehicle when a Hartford police K–9 dog entered the vehicle behind the plaintiff and bit the plaintiff.   The tortfeasor was operating the automobile without insurance coverage and was an uninsured operator.   Plaintiff has brought suit claiming damages under the uninsured provision of the defendant's insurance policy.   Defendant has moved for summary judgment claiming that the injuries sustained by the plaintiff did not “arise out of the ownership, maintenance or use of the uninsured/underinsured motor vehicle” from the said defendant's insurance policy.  (Emphasis added.)   Defendant claims that there is no causal connection between the injury and the use of the vehicle, that the dog bite was an act of independent significance.   Both sides have filed briefs and the hearing was held before this Court on July 18, 2011.

STANDARD OF REVIEW:

“A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law.”  Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 257 (1984);  Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).

A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact.  Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 381 (1971).   To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact.  Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971).   The test that has been stated is:  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorably to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts.”  (Internal quotation marks omitted.)  Cummings & Lockwood v. Gray, 26 Conn.App. 293, 296–97, 600 A.2d 1040 (1991).

ISSUES AND FINDINGS:

Is the Plaintiff Covered Under the Aforementioned Policy of Insurance For Uninsured Motorist Coverage?

The short answer is Yes.

From the defendant's brief, the following is important:  “In this case, the plaintiff was injured as a result of his dog biting him.   Obviously, there is a connection between the plaintiff's injury and the use of the underinsured vehicle.   Had it not been for the use of the underinsured's vehicle, the plaintiff would not have been trying to apprehend the tortfeasor and his dog would not have bitten him.”  (Emphasis added.)

Also the insurance policy in question contains the following definitions:

1.  Section IV, Paragraph 2, page 10 “Insured means:  (d) any other person while occupying an insured auto;  or (e) any person who is entitled to recover damages because of bodily injury sustained by an insured ․”

2. “Section IV, Paragraph 4, page 10 “Occupying means:  (a) in;  (b) upon;  (c) entering into;  or (d) alighting from.”  (Emphasis added.)

From these definitions, the plaintiff was clearly in the motor vehicle and therefore occupying it, and is therefore insured.   He was in, upon or entering into the motor vehicle.

As for the word “use,” the tortfeasor who was driving the automobile was clearly using same, and the plaintiff by entering the vehicle to apprehend the tortfeasor was using the vehicle for that purpose.

In the case of New London County Ins. Co. v. Nantes, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No., CV 08–5006397 (April 15, 2010, Bellis, J., 49 Conn. L. Rptr 864).   Judge Bellis stated:  “to use an automobile is to put it into action or service (which the tortfeasor did) have recourse to or enjoyment of it, or employ it for some purpose or object of the user.”  (Emphasis added.)   The Court agrees with Judge Bellis and concludes that the plaintiff employed the vehicle for the purpose or object of apprehending the driver.

In the case of Hogle v. Hogle, 167 Conn. 572, 577 (1975), the Connecticut Supreme Court while discussing “use” wrote “it is generally understood that for liability for an accident or an injury to be said to arise out of the use of an automobile for the purpose of determining liability pursuant to an insurance policy, it is sufficient to show only that the accident or injury ‘was connected with,’ ‘had its origins in’ ‘grew out of’ ‘flowed from’ or ‘was incident to’ the use of the automobile, in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile.”   Based upon all of the above, the plaintiff is entitled to coverage under the aforementioned insurance policy because he was using the vehicle as an occupier thereof.

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

Rittenband, JTR

Rittenband, Richard M., J.T.R.