Michael Farber v. Massachusetts Bay Insurance Company (2011)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

FACTS

On February 15, 2008, the plaintiff, Michael Farber, filed a complaint, amended on May 4, 2011, against the defendant, Massachusetts Bay Insurance Company, for underinsured motorist benefits stemming from a motor vehicle accident with Sharon Wakefield in March 2005.   The plaintiff's wife, Judith Farber, also filed a similar complaint against the defendant.¹  On April 25, 2011, Wakefield's insurer, Liberty Mutual, agreed to tender $99,350.20 in settlement of the Farbers' claims against Wakefield.²  The offer represented the exhaustion of the remaining policy limit balance.   This settlement was accepted by the defendant in this action and its acceptance was memorialized in a hand written agreement dated May 5, 2011.³  Judith Farber subsequently withdrew her underinsured motorist action against the defendant on May 11, 2011.   Michael Farber proceeded with his, and a trial was held which resulted in a verdict in his favor in the amounts of $61,560 in economic damages and $161,770 in noneconomic damages (for a total of $223,330).

Following the verdict, the defendant filed a post-trial memorandum seeking to reduce the jury verdict by $99,350.20.   The plaintiff filed a memorandum in opposition.

DISCUSSION

“[T]his court decided in Allstate Ins. Co. v. Lenda, [34 Conn.App. 444, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d 149 (1994) ], that § 38a–334–6 of the Regulations of Connecticut State Agencies authorizes policy provisions providing for reductions for amounts paid by a tortfeasor to others.”  U.S. Fidelity and Guar. Co. v. Pitruzzello, 35 Conn.App. 638, 644, 646 A.2d 936, cert. denied, 231 Conn. 933, 649 A.2d 255 (1994).

The defendant requests that this court reduce the verdict by $99,350.20, representing the amount of the settlement received by the Farbers from the Wakefield policy.   The plaintiff claims that the defendant is not entitled to such a reduction because the language of the applicable underinsured motorist policy does not permit credits for payments made to other claimants.

The first issue that must be addressed is whether the plaintiff's underinsured motorist policy contains language that allows for the plaintiff's award to be reduced by amounts paid by the tortfeasor to other claimants.   The underinsured motorist provision of the motor vehicle policy issued by the defendant states in relevant part:  “The limit of liability will be reduced by all sums ․ [p]aid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.”   Language identical to this has been interpreted by our Supreme Court in Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 764, 621 A.2d 258 (1993), and Buell v. American Universal Ins. Co., 224 Conn. 766, 770–71, 621 A.2d 262 (1993), and again by our Appellate Court in U.S. Fidelity and Guar. Co. v. Pitruzzello, supra, 35 Conn.App. 641.  “The policies do not say ‘a bodily injury,’ or ‘any bodily injury,’ or ‘all bodily injuries,’ but are expressly limited to the singular ‘the bodily injury.’  (Emphasis added.)   This phrase undoubtedly refers to the claimant's bodily injury, and not to any other bodily injuries.”  Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 764;  Buell v. American Universal Ins. Co., supra, 224 Conn. 771.  “We hold only that, in this case, the specific terms of the underinsured motorist provision at issue do not entitle the plaintiff to credits for payments made to other claimants in calculating the offset of damages owed to each of the defendants ․” U.S. Fidelity and Guar. Co. v. Pitruzzello, supra, 35 Conn.App. 645.⁴

In the present case, while the plaintiff's reading of Stephan, Buell, and Pitruzzello is accurate, he fails to address the most glaring factual difference between those cases and the present case.   In all three of the aforementioned cases, the defendant insurance companies attempted to reduce the claimants' underinsured motorist benefit awards by amounts specifically allocated and awarded to other claimants by or on behalf of the tortfeasor.   In the present case, however, the $99,350.20 settlement from Wakefield's policy was awarded as a lump sum, subject to a settlement agreement between the Farbers and the defendant.   The settlement contract provides:  “Massachusetts Bay Insurance Company consents to Judith and Michael Farber accepting $99,350.20 as money paid because of bodily injury by or on behalf of Sharon Wakefield (Liberty Mutual Insurance Co.).   The parties further agree and stipulate that Massachusetts Bay Insurance Company has no obligation to make any payment pursuant to the underinsured coverage unless the combined or individual bodily injury damages of Michael and/or Judith Farber resulting from the 3/5/05 automobile accident with Sharon Wakefield exceed the $99,350.20 money paid by or on behalf of Sharon Wakefield.”

By the express terms of the settlement agreement, the defendant has no obligation to make any underinsured coverage payments until the individual or combined bodily injury damages of Michael and/or Judith Farber exceed the $99,350.20 paid by or on behalf of Wakefield.   The defendants, therefore, are entitled to a $99,350.20 credit from the total amount of individual or combined bodily injury damages of Michael and/or Judith Farber.   The plaintiff here, Michael Farber, was awarded a jury verdict totaling $223,330.   Pursuant to the settlement agreement dated May 5, 2011, the verdict must be reduced by the $99,350.20 received by or on behalf of Wakefield, resulting in a total verdict for the plaintiff in the amount of $123,979.80.

CONCLUSION

Accordingly, judgment is entered in favor of the plaintiff in the amount of $123,979.80.

Robaina, J.

FOOTNOTES

FN1. Docket No. HHD CV 08 5017402S..  FN1. Docket No. HHD CV 08 5017402S.

FN2. See motion # 181, Exhibit A..  FN2. See motion # 181, Exhibit A.

FN3. See motion # 181,Exhibit A..  FN3. See motion # 181,Exhibit A.

FN4. See also J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (1010) § 6.2.3..  FN4. See also J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (1010) § 6.2.3.

Robaina, Antonio C., J.