Ricarda Calderon v. Geico General Ins. Co. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Preliminary Statement

This action arises out of a motor vehicle accident between the plaintiff and a third person, which occurred on December 16, 2009, and in which the plaintiff was injured.   The plaintiff recovered the full limits of the other driver's insurance policy and brings this action seeking underinsured motorist benefits pursuant to his insurance policy with the defendant.   The defendant seeks summary judgment on the ground that the plaintiff's underinsured coverage did not exceed the tortfeasor's liability coverage and therefore the plaintiff is not entitled to benefits.   The plaintiff objects to the entry of summary judgment on the grounds that the defendant failed to comply with Conn. Gen.Stat. § 38a–336a as amended by Public Act 09–72 which requires insurance carriers to disclose to policy holders the availability of underinsured conversion coverage.   For the reasons set forth below, the motion for summary judgment is GRANTED.

Standard of Review

The standards under which a court considers a motion for summary judgment are well established.   The party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law.   PB § 17–44;  Appleton v. Board of Education, 254 Conn. 205 (2000).

Undisputed Facts

As to the issues presented here, the facts are not in dispute.

The plaintiff was an insured of the defendant.   In September 2009, the plaintiff renewed his automobile insurance policy with the defendant, commencing October 30, 2009.   His policy included uninsured/underinsured benefits of $20,000 per person and $40,000 per occurrence.   The policy was in full force and effect on December 16, 2009 when the plaintiff was injured in an automobile accident with Paulien Rival (the tortfeasor).   The tortfeasor had liability insurance benefits with Progressive Insurance Company in the amount of $20,000 per person and $40,000 per occurrence.   The plaintiff recovered the full amount of benefits available under the tortfeasor's policy with Progressive.

Public Act 09–72 was approved in May 2009.   It became effective January 1, 2010.

Discussion

The defendant seeks summary judgment on the grounds that as a matter of law, the plaintiff's policy provides no coverage under the circumstances outlined above.   Specifically, insofar as the underinsured motorist coverage was not more than the liability limits of the tortfeasor's policy, the tortfeasor's policy is all that is available to the plaintiff.

Conn. Gen.Stat. § 38–336(e) defines an “underinsured motor vehicle” as being a:

motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made.

(Emphasis added).   In other words, the tortfeasor's coverage must be less than the plaintiff's coverage.   Here, the coverage was the same and therefore the tortfeasor was not, by definition, an underinsured motorist for purposes of triggering any coverage under the plaintiff's policy with the defendant.

The plaintiff argues however that the defendant's failure to comply with P.A. 09–72 should operate to, in essence, convert the underinsured benefits to underinsured conversion benefits.¹  Conn. Gen.Stat. § 38–336a, which governs the issuance of conversion coverage, was amended by PA. 09–72 to include the following pertinent language:  “For each new automobile liability insurance policy issued, the insurer shall disclose to an insured at the time of the sale or issuance of the availability of the premium cost and a description of underinsured motorist conversion coverage.”   The merits of the plaintiff's argument need not be addressed here.   The statute is given an effective date of January 1, 2010.   By its own terms, the requirements of Public Act 09–72 are not imposed upon then existing policies.   Nor is the statute given retroactive effect.   Indeed, Conn. Gen.Stat. § 55–3 provides:  “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”

This policy was issued in September 2009 and provided coverage commencing October 30, 2009.   The accident occurred in December 2009.   Public Act 09–72 has no bearing on defendant's liability in this matter.

For the reasons set forth above, the motion for summary judgment is GRANTED.   Judgment in favor of the defendant will enter immediately.

K. DOOLEY, J.

FOOTNOTES

FN1. The plaintiff's argument in this regard is advanced without analysis or authority..  FN1. The plaintiff's argument in this regard is advanced without analysis or authority.

Dooley, Kari A., J.