Richard L'Heureux v. Kenneth Rudd et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANT HARLEYSVILLE INSURANCE COMPANY'S MOTION TO STRIKE (# 104)

This action arises from a 2012 motor vehicle collision involving the plaintiff, Richard L'Heureux, and defendant Kenneth Rudd. The first three counts are against Rudd. Defendant Harleysville Insurance Company (Harleysville or movant) moves to strike the fourth count, which seeks uninsured/underinsured motorist insurance policy benefits.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.   See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).

Viewing the allegations of the fourth count in this light, the essential facts are as follows.   On or before January 28, 2012, Harleysville issued to the plaintiff an insurance policy, number PAAA56762.   Under the policy, Harleysville agreed to pay all sums which the plaintiff became legally entitled to recover as damages from the owner of an uninsured or underinsured motor vehicle because of injuries he sustained in any accident due to the ownership, maintenance or use of that vehicle.   The plaintiff had fulfilled the terms and conditions of the policy.   The policy was in full effect on January 28, 2012, when a motor vehicle operated by an uninsured/underinsured motorist collided with the plaintiff's vehicle as the plaintiff attempted to drive through the intersection of Cemetery Road and Norwich Road in Plainfield, Connecticut.¹  The collision caused the plaintiff injuries and losses.   The plaintiff is legally entitled to recover any damages caused by the uninsured or underinsured motorist because the collision and resulting injuries were caused by the negligent maintenance and operation of the uninsured or underinsured motor vehicle in multiple ways.

The motion to strike was filed on April 4, 2013.   On April 26, 2013, the plaintiff filed an opposing brief.   The motion was argued on May 20, 2013.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Intemal quotation marks omitted.)   Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

The movant first claims the fourth count should be stricken because it fails to allege the four elements of a breach of contract claim:  formation of an agreement, performance by one party, breach of the agreement by the other party, and damages.   See Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004).   It is true the plaintiff does not allege breach of the movant's insurance policy, let alone damages from such a breach.   However, the fourth count simply is not for breach of contract.   It is a suit for uninsured/underinsured motorist benefits.

Harleysville claims that the plaintiff has not alleged legally sufficient facts to support a claim for uninsured or underinsured motorist benefits pursuant to General Statutes § 38a–336.²  The movant's first claim, that the fourth count fails to allege that the plaintiff is legally entitled to recover damages against the owner or operator of an uninsured or underinsured motor vehicle, is plainly contradicted by paragraph 4 of the fourth count.

Section 38a–336(b) provides, in relevant part, as follows:  “An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage.”   The movant correctly states that the plaintiff has failed to allege facts showing he has pursued and exhausted the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident.   However, count one of the complaint, which is against Rudd for negligence, is essentially the process for pursuing the limits of such insurance and determining whether such insurance is exhausted.   It is proper to commence an action for uninsured or underinsured motorist benefits prior to the exhaustion of the liability limits of the tortfeasor's policy “Under General Statutes § 38a–336(b) ․ an insured may recover uninsured or underinsured motorist benefits only after exhausting the liability limits of the tortfeasor's policy ․ [H]owever, an insured may commence an action for underinsured motorist benefits prior to exhausting the liability limits of the tortfeasor's policy.”  (Emphasis added.)  Stevens v. Aetna Life & Casualty Co., 233 Conn. 460, 470 n.14, 659 A.2d 707 (1995).

“It follows that the plaintiff must at least allege ․ facts sufficient to support [his] entitlement to damages from the tortfeasor, that the motor vehicle is uninsured, and that the claimant is entitled to uninsured motorist benefits from his or her uninsured motorist coverage carrier.”   Colon v. Ingram, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–02–0187373–S (April 24, 2003, Lewis, J.);   see also Kost v. Riley, Superior Court, judicial district of New Britain, Docket No. CV–04–0528111–S (December 1, 2004, Burke, J.).   A complaint alleging that a driver was negligent and uninsured or underinsured constitutes a legally sufficient claim for underinsured motorist benefits.   Prion v. Tecci, Superior Court, judicial district of Fairfield, Docket No. CV–94–0318432–S (February 21, 1995, Freedman, J.).  “Whether the plaintiff can actually prove that all available liability insurance coverage has been exhausted is an issue of fact that cannot be addressed on a motion to strike.   Where the legal grounds for a motion to strike are dependent upon facts which only could be proved by evidence adduced at trial, the motion should be denied.”  Id., citing Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).³

Count four alleges that the collision was caused by “an uninsured or underinsured motorist” and that the injuries sustained were the result of the maintenance and operation of an “uninsured or underinsured motor vehicle.”   That the motorist and/or the motor vehicle were uninsured or underinsured is at least implied.   Furthermore, the plaintiff alleges facts to support the claim that he is entitled to damages because of the motorist's negligence, that he had a policy with Harleysville for uninsured and underinsured motorist coverage, that the policy was in full effect at the time of the collision, and that he had complied with the terms and conditions of the policy.   The allegations of the fourth count are legally sufficient as a claim for uninsured or underinsured motorist benefits.

For the foregoing reasons, the motion to strike is denied.

Cole–Chu, J.

FOOTNOTES

FN1. Rudd is not mentioned in the fourth count.   The briefs of both the movant and the plaintiff say Rudd “operated his vehicle directly into the path of the plaintiff's vehicle.”   Reconciling that with paragraph 3 of the fourth count—”collided with the Plaintiff's motor vehicle as he attempted to drive through the intersection”—is not necessary here..  FN1. Rudd is not mentioned in the fourth count.   The briefs of both the movant and the plaintiff say Rudd “operated his vehicle directly into the path of the plaintiff's vehicle.”   Reconciling that with paragraph 3 of the fourth count—”collided with the Plaintiff's motor vehicle as he attempted to drive through the intersection”—is not necessary here.

FN2. General Statutes § 38a–336 provides in pertinent part:  “An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage.   In no event shall there be any reduction of uninsured or underinsured motorist coverage limits or benefits payable for amounts received by the insured for Social Security disability benefits paid or payable pursuant to the Social Security Act, 42 USC Section 301 et seq.   The limitation on the total amount of recovery from all policies shall not apply to underinsured motorist conversion coverage purchased pursuant to section 38a–336a ․ For the purposes of this section, an “underinsured motor vehicle” means 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 ․”.  FN2. General Statutes § 38a–336 provides in pertinent part:  “An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage.   In no event shall there be any reduction of uninsured or underinsured motorist coverage limits or benefits payable for amounts received by the insured for Social Security disability benefits paid or payable pursuant to the Social Security Act, 42 USC Section 301 et seq.   The limitation on the total amount of recovery from all policies shall not apply to underinsured motorist conversion coverage purchased pursuant to section 38a–336a ․ For the purposes of this section, an “underinsured motor vehicle” means 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 ․”

FN3. The fourth count does not allege the amount of any insurance the uninsured or underinsured motorist had.   However, if the plaintiff proves at trial that the motorist had less automobile liability insurance than the movant's policy insures, let alone that the motorist was uninsured, and that the plaintiff's damages from the collision exceeded any insurance limit of that other driver, then the plaintiff would prevail on the fourth count.   The court is aware that the hypothetical extrapolation of the present decision is that a plaintiff could sue a driver with a million dollars of automobile liability insurance in a case where the plaintiff only suffered a bruise and, in the same suit, sue his own insurer for uninsured/underinsured motorist insurance benefits.   The wisdom of adding counts such as this is not before the court.   Any restriction on doing so is for the General Assembly..  FN3. The fourth count does not allege the amount of any insurance the uninsured or underinsured motorist had.   However, if the plaintiff proves at trial that the motorist had less automobile liability insurance than the movant's policy insures, let alone that the motorist was uninsured, and that the plaintiff's damages from the collision exceeded any insurance limit of that other driver, then the plaintiff would prevail on the fourth count.   The court is aware that the hypothetical extrapolation of the present decision is that a plaintiff could sue a driver with a million dollars of automobile liability insurance in a case where the plaintiff only suffered a bruise and, in the same suit, sue his own insurer for uninsured/underinsured motorist insurance benefits.   The wisdom of adding counts such as this is not before the court.   Any restriction on doing so is for the General Assembly.

Cole–Chu, Leeland J., J.