Joseph DeCosta v. Kenska Antoine et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 133)

FACTS

On August 9, 2010, the plaintiff, Joseph DeCosta, filed a two-count amended complaint against the defendants, Kenska Antoine, and his insurer, Liberty Mutual Fire Insurance Company (Liberty Mutual).   The amended complaint alleges that on January 11, 2007, Antoine was operating his vehicle when it struck the plaintiff's vehicle from behind.   The plaintiff suffered various injuries as a result.   The amended complaint further alleges that Liberty Mutual had issued an automobile insurance policy to the plaintiff in effect at the time of the accident that included uninsured motorist coverage in the amount of $100,000.   In counts one and two, respectively, the plaintiff alleges claims against Antoine for negligence and recklessness.   In count three, the plaintiff alleges the losses sustained by the plaintiff are the legal responsibility of Liberty Mutual because all liability coverage of the loss has been exhausted and was inadequate to fully compensate the plaintiff for his injuries.

On September 2, 2011, Liberty Mutual filed a motion for summary judgment.   In support of its motion, Liberty Mutual submitted the affidavit of Bradford Jackson, a claims adjuster for Liberty Mutual, an unauthenticated copy of the subject insurance policy and a memorandum of law.   The plaintiff filed a memorandum in opposition on October 12, 2011.   To support his memorandum in opposition, the plaintiff submitted an unauthenticated copy of the draft disbursement page from the law firm representing the plaintiff.   This matter was heard at short calendar on October 17, 2011.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).   “The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).  “[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

Liberty Mutual argues that it is entitled to summary judgment because the payments received by the plaintiff in the form of workers' compensation benefits and a settlement with the tortfeasor reduce the plaintiff's uninsured motorist insurance benefits to zero.   Specifically, the plaintiff's policy provided that Liberty Mutual would compensate the plaintiff for bodily injury caused by uninsured motorists in the amount of $100,000 per person injured.   Nonetheless, Liberty Mutual argues that the $100,000 in uninsured motorist insurance benefits has been reduced to zero because the plaintiff has received other payments in the amount of $109,743.02. ($89,743.02 workers' compensation payments paid plus $20,000 from the tortfeasor settlement.)   In response, the plaintiff argues that there is $2,726.15 ¹ left in uninsured motorist insurance benefits because the amount of the workers' compensation lien has been or will be reduced by payments made from the settlement with the tortfeasor.   The plaintiff claims that $12,469.17 of the recovery from the tortfeasor will be paid to the workers' compensation carrier.  (Plaintiff's Memorandum in Opposition, p. 1.)

General Statutes § 38a–334 mandates that insurance policies provide uninsured/underinsured motorist coverage for private passenger motor vehicles in Connecticut.  Section 38a–334–6(d)(1)(B) of the Regulations of Connecticut State Agencies provide for the reduction of uninsured/underinsured motorist obligations by the amounts paid under any workers' compensation law.   “[I]n the context where the amount of workers' compensation benefits does not exceed the policy limits, such workers' compensation payment should be applied to reduce the amount of damages recoverable under the policy in order to prevent a ‘double recovery.’  “ J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (3d Ed.2004) § 6.3.1, p. 457;  see Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 792 A.2d 132 (2002);  Fahey v. Safeco Ins. Co. of America, 49 Conn.App. 306, 714 A.2d 686 (1998).   The regulations also provide that a carrier may reduce the limits of uninsured/underinsured motorist coverage to the extent that damages have been “paid under the policy in settlement of a liability claim.”  Regs., Conn. State Agencies § 38a–334–6(d)(1)(C).  “[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.”  United States Fidelity & Guaranty Co. v. Pitruzzello, 35 Conn.App. 638, 644, 646 A.2d 936, cert. denied, 231 Conn. 933, 649 A.2d 255 (1994).

In the present case, the plaintiff has uninsured motorist coverage in the amount of $100,000, which must be reduced by the settlement amount paid by the tortfeasor to the plaintiff.   It is undisputed that after payment of attorneys fees and costs the plaintiff must pay the balance of his recovery from the tortfeasor to the workers' compensation carrier.   These payments reduce the workers' compensation lien from $89,743.02 to $77,273.85.   Liberty Mutual is not entitled to summary judgment because it fails to consider that the plaintiff contributed his net recovery from the tortfeasor's policy to reduce the workers' compensation lien by the amount of $12,469.17.   Consequently, the workers' compensation lien is effectively reduced to $77,273.85.   When subtracted from the $80,000 of remaining uninsured motorist coverage there remains a potential recovery by the plaintiff of $2,726.15 in uninsured motorist insurance benefits.

CONCLUSION

For the foregoing reasons, the court denies Liberty Mutual's motion for summary judgment.

Cosgrove, J.

FOOTNOTES

FN1. $109,743.02 total payments received, less $12,469.17, equals $97,273.85.   Therefore, the amount of the $100,000 in uninsured motorist insurance benefits remaining is $2,726.15..  FN1. $109,743.02 total payments received, less $12,469.17, equals $97,273.85.   Therefore, the amount of the $100,000 in uninsured motorist insurance benefits remaining is $2,726.15.

Cosgrove, Emmet L., J.