Rachel Hale et al. v. Geico Insurance Company (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE [# 108]

FACTS

The plaintiffs allege:

1. The present action arises from an automobile collision that occurred on December 7, 2012 at around 1:27 p.m.;

2. Plaintiffs occupied a motor vehicle which was stopped for a red light at the intersection of Waterville and Homer Streets in Waterbury, CT.;

3. Their vehicle was struck in the rear by a second vehicle;

4. The operator of the second vehicle was never identified;

5. The unidentified operator “did not have insurance policies that would cover his liability in this matter(.),” i.e. an uninsured motorist;

6. The plaintiff's suffered harm as a direct result of the negligent operation of a motor vehicle by an uninsured/unidentified motorist;  and

7. GEICO issued an automobile insurance policy covering the plaintiffs, effective on the date of accident, and providing, inter alia, uninsured motorist coverage.

The plaintiffs seek uninsured motorist benefits under that automobile insurance contract/policy for harm allegedly resulting from the negligence of the aforementioned uninsured/unidentified motorist.

GEICO timely appeared, answered, and filed an apportionment complaint.   The apportionment complaint asserts that the apportionment defendant, Ms. Heylee Rodriquez, was, on December 7, 2012, the registered owner of the vehicle that struck the vehicle plaintiff's occupied and, consequently, Rodriquez is or may be liable pursuant to CGS 52–572h for a proportionate share of the plaintiffs' damages.   Consequently GEICO seeks an apportionment of liability with Ms. Rodriquez and GEICO insofar as GEICO stands in the shoes of or is surrogate for the legal liability of the alleged negligence of the unidentified driver.

GEICO, in paragraph 4.a-c of each count of the apportionment complaint, asserts that Ms. Rodriquez is legally liable for some or all of the plaintiffs' harm in that:

a.  In that she negligently entrusted her motor vehicle to another individual;

b. In that she is vicariously responsible and liable for the actions of any individual who causes injures (sic) or damages to another person as a result of the use, possession, or operation of her motor vehicle;

c. In that she is directly liable under the financial responsibility laws of this state for any injures (sic) or damages to another person as a result of the use, possession, or operation of her motor vehicle in accordance with Connecticut General Statutes 38a–334 to 38a–343, 38a–335, and 14–112(a).

On December 13, 2013 the plaintiffs moved to strike the apportionment complaint, the defendant objected on December 17, 2013, the plaintiff's replied to the objection on January 2, 2014.

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).  “In ruling on a motion to strike, the court is limited to the facts in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 588.  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

Plaintiffs first argue that GEICO's apportionment complaint should be stricken because the underlying claim for uninsured motorist benefits constitutes a contract action, and apportionment is only proper in a negligence action.   GEICO counters that our Supreme Court has recognized that apportionment complaints may be appropriate in certain un/underinsured motorist benefits cases due to the hybrid nature of un/underinsured motorist coverage.

General Statutes § 52–102b, which sets forth the procedure for filing an apportionment complaint, provides in relevant part:  “A defendant in any civil action to which Section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.”   “[A] civil action to which section 52–572h applies, within the meaning of § 52–102b, means a civil action based on negligence.”   Internal quotation marks omitted.)  Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793–95, 756 A.2d 237 (2000).

A number of Superior Court decisions have held that apportionment is not available to an insurance carrier in an action to recover uninsured or underinsured motorist benefits because such a claim constitutes a contract action, and § 52–102b only provides the right to apportion liability in a negligence action pursuant to CGS 52–572h.   See, e.g., Ingraham v. American Economy Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 00 0157741 (March 20, 2001, Doherty, J.);   Ferellec v. Government Employees Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 99 0424611 (March 9, 2000, Thompson, J.) [26 Conn. L. Rptr. 546];  Hirth v. Hartford Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 98 0584227 (September 17, 1999, Booth, J.) [25 Conn. L. Rptr. 491];  Wasserman v. Hartford Casualty Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 97 0574953 (October 14, 1998, Fineberg, J.) (23 Conn. L. Rptr. 290);  Henry v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 96 0134412 (January 7, 1998, Shortall, J.) (21 Conn. L. Rptr. 113);  Kramer v. Travelers Indemnity Co., Superior Court, judicial district of Hartford, Docket No. CV 97 0567172 (September 25, 1997, Wagner, J.) (20 Conn. L. Rptr. 416).

In Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001), our Supreme Court acknowledged the hybrid nature of un/underinsured motorist coverage, and held that an apportionment complaint is legally sufficient to state a claim for relief under certain circumstances.   In the present case, however, unlike in Collins, the underlying complaint only alleges negligence against a single tortfeasor, the unidentified operator of the vehicle that collided with the plaintiffs' vehicle, and GEICO is acting as a surrogate for liability purposes for that unidentified tortfeasor.   See Capp v. Safeco Ins. Co. of Illinois, Superior Court, judicial district of New Haven, Docket No. CV 07 5013308 (December 18, 2007, Bellis, J.) [44 Conn. L. Rptr. 682] (finding apportionment complaint in uninsured motorist benefits case is not proper under Collins where underlying complaint only alleges negligence against one tortfeasor for whom is the defendant is acting as a surrogate for liability purposes).

In an apparent effort to avoid the dismissal pursuant to Eskin v. Castiglia, 253 Conn. 516 (2000), wherein the Supreme Court sustained the trial court's striking of the apportionment complaint against an unidentified operator, here GEICO attempts to apportion the legal responsibility of the purported owner, Ms. Rodriquez, of the vehicle operated by the unidentified operator/tortfeasor.

The subject apportionment complaint alleges legal liability without allegations of factual foundation.   As noted above, the apportionment complaint, paragraph 4 of each of the three counts, alleges:

a․  She negligently entrusted ․

b ․ she is vicariously liable ․

c ․ she is directly liable under the financial responsibility laws ․

“A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.

The apportionment complaint lacks a factual basis, or inferences that may be fairly drawn from facts alleged, for legal conclusions that Ms. Rodriquez “negligently entrusted” or “is directly liable under the financial responsibility laws ․” In addition to this infirmity, the latter allegation, subparagraph 4c in each count, cites several statutes applicable only to insurance companies—with no allegation that Ms. Rodriquez is such an entity.   Additionally subparagraph (c) alleges a violation of CGS 14–112(a).   Said statute mandates compliances with minimum financial responsibility laws, but does not impose “direct liability” for the torts of an unidentified operator on the owner of the vehicle.   Therefore, the motion to strike is appropriate as to these two subparagraphs, (a) and (c) of the apportionment complaint.

However, the apportionment complaint, subparagraph (b), does allege sufficient facts to give rise to a claim of vicarious liability based upon an agency relationship.   The apportionment complaint alleges Ms. Rodriquez was the owner of the motor vehicle on the date of loss and that an unidentified operator was driving the vehicle.  CGS 52–183 ¹ creates a presumption of agency between the unidentified operator and the apportionment defendant/alleged owner of the vehicle.   Therefore, the apportionment complaint does allege facts sufficient to invoke said statute and hence, the court addresses the allegations of vicarious liability of Rodriquez in paragraph 4.b. of each count.

As succinctly stated in Capp v. Safeco Ins. Co. of Illinois, supra, “Simply put, an apportionment claim cannot lie against Diglio, (here Ms. Rodriquez) because Safeco (here GEICO) is, in essence, a surrogate for Diglio (here the unidentified operator and hence, vicariously, Ms. Rodriquez), and there is no negligence to apportion in the case where the allegations of the complaint make clear that there is only one tortfeasor.”   In short, when imposing vicarious liability on Ms. Rodriquez (owner) for the conduct of the unidentified operator, the fact finder, would only be assessing the liability, if any, of only the unidentified operator.   As there would be no additional tortfeasor with whom the factfinder could apportion legal liability for the plaintiffs' harm, there would be no “apportionment” possible—either the unidentified operator was legally liable or the judgment enters for the defendant.

This case is unlike Collins, supra, as only the conduct of one tortfeasor is being measured.   Absent some basis for Ms. Rodriquez' legal liability, independent of vicarious liability for the unidentified operator's conduct, the factfinder(s) would have no other actor to whom to “apportion” liability in this case.

The apportionment plaintiff also asserts that the plaintiff has no standing to file this motion to strike.   In Eskin v. Castiglia, supra, the trial court found the plaintiff had standing to file the motion to strike.   The Supreme Court addressed the merit of the motion to strike.   Though the issue of standing was not addressed by the Supreme Court, standing implicates subject matter jurisdiction and may be raised by any party, or the court sua sponte, at any time.   Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved ․ The fundamental test for determining [classical] aggrievement encompasses a well settled twofold determination:  [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.   (Internal quotation marks omitted.)  Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).   The plaintiffs have standing to challenge the apportionment complaint as their contractual entitlement to uninsured motorist benefits, money compensation for harm caused by an uninsured motorist, would be diminished or even defeated if the fact finder apportioned legal responsibility to an apportionment defendant, perhaps uninsured, against whom the plaintiffs had no claim.

In sum, the court finds the plaintiffs have standing to contest the legal sufficiency of the apportionment complaint to state a claim upon which relief can be granted.

GEICO asserts it is “only attempting to enforce their, sic, rights under the contract and case law, and ensure that the rules regarding primacy of coverage are enforced.   Under these standards the Defendant only becomes responsible for the Plaintiff's injuries once it is proven that the owner/operator had no insurance coverage at the time of the loss.   The Plaintiffs are required under their contract with the Defendant to prove this to the Defendant, before coverage under the policy is triggered.   They have not done so to date.”

This claim raises an issue unrelated to the legal sufficiency of the apportionment complaint.   Here the defendant addresses the sufficiency of proof of an element of the plaintiffs' prima facie case in this contract claim:  the need to prove the lack of, or exhaustion of, “the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident ․” CGS 38a–336(b) and to satisfy all the terms and conditions in the applicable insurance contract “uninsured motorist endorsement”—particularly with respect to proving the plaintiff's harm was caused by an “uninsured motorist”—as defined by the policy.

While GEICO may be correct that plaintiffs must establish a lack of all bodily injury liability bonds and insurance policies on either the unidentified driver or Rodriquez vehicle, see also CGS 38a–336c,² and satisfy all the terms and conditions of the insurance policy entitling them to uninsured motorist contractual benefits, that is a different issue than establishing the legal sufficiency of the apportionment complaint.   Here the defendant raises the issue of whether the plaintiff will be able to prove that the vehicle which struck the plaintiffs' car was an “uninsured motor vehicle” as defined in the GEICO uninsured motorist endorsement applicable to this loss.

An apportionment complaint is not the proper vehicle to test the sufficiency of the plaintiffs' proof of exhaustion of applicable liability insurance coverage for the alleged tortfeasor.   GEICO may engage in pretrial discovery or wait until evidence is offered at trial on this issue.

Pursuant to the foregoing, an apportionment claim is not legally sufficient to state a claim upon which relief can be granted.

Therefore, plaintiffs' motion to strike GEICO's apportionment complaint must be granted.

CONCLUSION

Wherefore, the court hereby grants plaintiffs' motion to strike GEICO's apportionment complaint.

Zemetis, J.

FOOTNOTES

FN1. Sec. 52–183.   Presumption of agency in motor vehicle operation.   In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment.   The defendant shall have the burden of rebutting the presumption..  FN1. Sec. 52–183.   Presumption of agency in motor vehicle operation.   In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment.   The defendant shall have the burden of rebutting the presumption.

FN2. Sec. 38a–336c.   Claims for uninsured or underinsured motorist benefits. (a) An insured, when making a claim for uninsured or underinsured motorist benefits, shall make reasonable efforts to establish what liability coverage there is for the owner and operator of an alleged uninsured or underinsured vehicle.(b) For any motor vehicle accident occurring on or after October 1, 2006, no insurer may require its insured, as a condition of eligibility for payment of uninsured motorist benefits, to provide affidavits or written statements from the owner or operator of the alleged uninsured vehicle attesting to the fact that the individual did not maintain any liability coverage at the time of the motor vehicle accident.(c) For any motor vehicle accident occurring on or after October 1, 2006, no insurer may require its insured, as a condition of eligibility for payment of underinsured motorist benefits, to provide affidavits or written statements from the owner or operator of the alleged underinsured vehicle attesting to the lack of any additional bodily injury liability bonds or insurance applicable at the time of the motor vehicle accident.(d) Nothing in this section shall relieve any person seeking to secure any coverage under an automobile insurance policy of any duty or obligation imposed by contract or law..  FN2. Sec. 38a–336c.   Claims for uninsured or underinsured motorist benefits. (a) An insured, when making a claim for uninsured or underinsured motorist benefits, shall make reasonable efforts to establish what liability coverage there is for the owner and operator of an alleged uninsured or underinsured vehicle.(b) For any motor vehicle accident occurring on or after October 1, 2006, no insurer may require its insured, as a condition of eligibility for payment of uninsured motorist benefits, to provide affidavits or written statements from the owner or operator of the alleged uninsured vehicle attesting to the fact that the individual did not maintain any liability coverage at the time of the motor vehicle accident.(c) For any motor vehicle accident occurring on or after October 1, 2006, no insurer may require its insured, as a condition of eligibility for payment of underinsured motorist benefits, to provide affidavits or written statements from the owner or operator of the alleged underinsured vehicle attesting to the lack of any additional bodily injury liability bonds or insurance applicable at the time of the motor vehicle accident.(d) Nothing in this section shall relieve any person seeking to secure any coverage under an automobile insurance policy of any duty or obligation imposed by contract or law.

Zemetis, Terence A., J.