Amica Mutual Insurance Company v. Martina P. Given et al. (2013)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Amica Mutual Insurance Company (Amica Mutual) brings this action against Martina P. Given and Lorrie A. Craw, in the form of a request for a declaratory judgment.   Amica Mutual asks the court, pursuant to S. 52–29 1 of the General Statutes and S. 17–55 2 of the Connecticut Practice Book to declare that it has no duty to either defend or to indemnify Martina P. Given, under an automobile insurance policy issued to her (Pol. # 91106–21U) concerning an automobile accident which occurred on July 25, 2011.

On that date, Martina Given was operating a 2003 Volkswagen owned by her fiancé Douglas Cooper, on the Boston Post Road in Milford, when she was involved in an accident with a vehicle operated by one Jeffrey Craw, in which the Defendant Lorre A. Craw was a passenger.

The 2003 Volkswagen was insured, under a policy issued by the Progressive Insurance Company.   The policy provides limits of $50,000 per person, and $100,000 per accident.

The Defendant, Lorrie A. Crow, has instituted an action which names Martina P. Given as a defendant, seeking compensation for injuries and damages she claims to have suffered in the accident (Docket # CV 11–6023132).

The parties to this action, have stipulated to certain facts.

At the time of the accident in question, July 23, 2011, Martina Given and Douglas Cooper were engaged to be married, and were residing together at the same address, 259 Lookout Hill Road, Milford.   They had lived together at that address for approximately four (4) years on July 23, 2011.

Martina Given was operating the 2003 VW owned by her fiancé with his permission on July 23, 2011.   She used the vehicle two times per week to perform errands, but did not use that car to commute to her place of employment.   Although Martina Given had access to the keys to the car, she did not have her own set of keys.

Martina Given had the implied permission of Douglas Cooper to use the 2003 VW, if Douglas Cooper was driving another vehicle which was garaged at 259 Lookout Hill Road, a 2012 Volvo.   The Volvo was co-owned by Martina Given and Douglas Cooper, and was routinely used by Martina Given.

Although the 2003 Volkswagen was insured under a policy issued by Progressive, Douglas Cooper had specifically excluded Martina Given from that policy.   The reason she was excluded, it is agreed, was to avoid the payment of a double premium.

In a recorded statement taken following the July 23, 2011 accident (Ex. 3), Martina Given stated that she did not know that she was an excluded driver under the Progressive policy, until she was informed of that fact following the accident (Ex. 3, p. 11–12).

In that same statement she admitted driving the car a few times per week.

Douglas Cooper maintains that he was told by his insurance agent that although Martina Given was excluded from the Progressive policy, she could drive the 2003 Volkswagen, so long as she maintained her own insurance.

The Amica Mutual insurance policy (Ex. 5) covered the 2010 Volvo.   Martina Given is identified as the named insured on that policy, and no other vehicle is listed.

The policy defines an “Insured” to mean:

B. Insured

1.  You of any family member for the ownership, maintenance or use of any auto or trailer ․

The policy language also contains certain exclusions from coverage:  (Ex. 5)

Exclusions

B. We do not provide Liability Coverage for the ownership, maintenance or use of:

2.  Any vehicle other than your covered auto, which is:

b. furnished or available for your regular use.

Amica Mutual contends that the 2003 Volkswagen was furnished or available for the regular use of Martina Given, and, therefore, its policy did not cover Martina Given on July 23, 2011, when the accident with the Craw vehicle occurred.

The Defendant, Martina Given, argues that the 2003 Volkswagen was not made available for her regular use, and that the Amica Mutual policy is applicable to the July 23, 2011 incident.

In the alternative, she maintains that the declaratory judgment action ought to be dismissed, since it is not ripe for judicial determination.   She contends that the dispute between the parties is purely hypothetical, until the action brought by Lorrie Craw is resolved, or tried to a conclusion.

AMICA MUTUAL MAKES A PROPER AND TIMELY CLAIM FOR DECLARATORY RELIEF

It is well settled that a declaratory judgment procedure is a suitable vehicle to test the rights and liabilities of parties to an insurance contract.   Shelby Mutual Ins. Co. v. Williams, 152 Conn. 178, 179 (1964);  St. Paul Fire & Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 308 (1990).   The question in each case is whether the action is timely, and ripe for adjudication, or whether the procedural posture of a given case precludes resort to the declaratory judgment procedure.

The Defendant, Martina Given, claims that resort to declaratory relief is premature, until a finding of liability has been made in the action between Lorrie Craw and Martina Given.  Hamilton v. United States Automobile Association, 115 Conn.App. 774 (2009).

This claim, and the reliance upon Hamilton, are unavailing.

Hamilton was instituted by the conservator of the victim's estate.   A declaratory ruling was sought, in order to determine the obligation of the insurer, USAA, to defend and indemnify a licensed professional counselor, under a homeowners policy.

The policy had been issued to one John E. Thorson, and the underlying action, which was pending at the time of the request for declaratory relief, concerned claims of professional negligence, and negligent infliction of emotional distress.

It was alleged that the defendant was professionally negligent, because he manipulated and exploited his patient sexually for a number of years.   The name of the victim was not disclosed, and would have been disclosed had the claim for declaratory relief proceeded.

The Appellate Court, faced with an unsettled factual record, determined that the allegations were known, but the evidence in the case had not been presented.   The Court held that in the absence of evidence, and a jury verdict in the underlying case, it could not determine whether an obligation to indemnicy existed.  Hamilton v. United Services Automobile Association, supra, 785.

Here, the question posed is not hypothetical, and its resolution is not dependent upon findings by the trier of fact, following the receipt of evidence.

Resolution of the issue presented requires only the construction of the policy provision (Ex. 5), in light of the stipulation of the parties.   The question is whether the vehicle involved in the July 23, 2011 accident was available or furnished for the “regular use” of Martina Givens.   No factual finding in the matter of Craw v. Given (CV 11–6023132) is relevant, or required.

The claim for declaratory relief instituted by Amica Mutual is ripe for determination, under both the applicable statute and the provisions of the Practice Book.

The motion to dismiss this action filed by the Defendant, Martina Given, must therefore be denied.

THE 2003 VOLKSWAGEN WAS FURNISHED OR AVAILABLE FOR THE REGULAR USE OF MARTINA GIVEN

Resolution of the question presented, involves a consideration of Amica Mutual's duty under its policy of insurance issued to Martina Given.

It is therefore necessary to consider whether Amica Mutual is under a duty to defend Martina Given in any action brought following the accident of July 23, 2011, and whether it is under a duty to indemnify her in the event of a judgment.

The duty to defend, is much broader than the duty to indemnify.   A duty to defend is triggered whenever a complaint alleges facts which could fit within the scope of the coverage.  DaCruz v. State Farm Fire and Casualty Co., 268 Conn. 675, 688 (2004).   Where there is no duty to defend, there is no duty to indemnify.  QSP, Inc. v. Aetna Casualty and Surety Co., 256 Conn. 343, 382 (2001).   In determining whether a duty to defend is present, the allegations in the complaint are compared to the policy provisions, because the facts to be adduced by the evidence are not in dispute.  Wentland v. American Equity Ins. Co., 267 Conn. 592, 599 (2004).

However, simply because a duty to defend might be present, it does not necessarily follow that the insurer is under a duty to indemnify.   A duty to indemnify arises only if the evidence as established at trial, demonstrates that the conduct was actually covered by the policy.  DaCruz v. State Farm Fire and Casualty Co., supra, 688.

Based upon the procedural posture of this case, it can be found that Amica Mutual is under neither a duty to defend, nor to indemnify Martina Given.

The 2003 Volkswagen was garaged at the dwelling occupied by Martina Given, and her fiancé, Douglas Cooper.   They had resided together at the address for four (4) years.

Martina Given was specifically excluded from the Progressive Insurance Company policy which covered the vehicle she was using at the time of the accident.   She drove the car on a regular basis, two or three times per week, in order to run errands.

Martina Given had access to the keys to the vehicle, and had the authorization to drive the car, when Douglas Cooper, to whom she was engaged, was using the 2010 Volvo.

Although Martina Given claims that she did not know that she had been excluded from the Progressive policy until after the July 23, 2000 accident, there is no question that she was excluded, and that the motive for excluding her was to avoid a higher premium.

The Defendant seems to suggest that Amica Mutual, becomes the insurer of a vehicle not listed on the policy issued to Martina Given, when the named insured on its policy, Martina Given, is operating that vehicle.

Amica Mutual cannot be compelled to shoulder the burden of insuring the 2003 Volkswagen, while it was being driven by one who had been specifically excluded from the policy insuring that vehicle.   Such a scenario was clearly not bargained for, when Amica agreed to insure the 2010 Volvo, with Martina Given as the named insured.

It is found that the 2003 Volkswagen operated by Martina Given on July 23, 2011, was furnished or available for her regular use.

It is further found, that the 2003 Volkswagen is therefore subject to the exclusion contained in the policy issued by Amica Mutual to Martina Given.

Therefore, it is found that because the exclusion in the policy (Ex. 5) applies, Amica Mutual is under no duty to either defend or indemnify Martina Given, in the event that a judgment is entered against her as a result of the July 23, 2011 accident.

Judgment may enter, accordingly in favor of the Plaintiff, Amica Mutual Insurance Company.

The court declines to award costs to any party.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 52–29, C.G.S.—”(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment.“(b) The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”.  FN1. Section 52–29, C.G.S.—”(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment.“(b) The judges of the Superior Court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”

FN2. Practice Book S. 17–55—A declaratory judgment action may be maintained if all of the following conditions have been met:(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger or loss or of uncertainty as to the party's rights or other jural relations;(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which require settlement between the parties;  and(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternative procedure.”.  FN2. Practice Book S. 17–55—A declaratory judgment action may be maintained if all of the following conditions have been met:(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger or loss or of uncertainty as to the party's rights or other jural relations;(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which require settlement between the parties;  and(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternative procedure.”

Radcliffe, Dale W., J.