HURLEY, JUDGE TRIAL REFEREE.
Facts
The plaintiff, John Gomes, filed a two-count complaint against the defendants, Massachusetts Bay Insurance Company (Massachusetts Bay) and Allstate Insurance Company (Allstate), on October 11, 2002. This action arises from an accident that involved a motor vehicle colliding into the plaintiff while the plaintiff was directing traffic in accordance with his duties as a volunteer for the Pawcatuck fire district. The plaintiff recovered $100,000 from the driver's insurance cater for the injuries he sustained and now seeks to collect on the uninsured/underinsured motorist coverage policies he has with each named defendant.
It is alleged that the plaintiff has insurance coverage with Massachusetts Bay as a volunteer with the Pawcatuck Fire District, and coverage with Allstate personally.
On January 28, 2003, the defendant, Massachusetts Bay, filed a motion for summary judgment claiming that the plaintiff as a matter of law cannot recover under the uninsured/underinsured motorist policy. In support of its motion, the defendant submitted a memorandum of law together with a copy of the insurance policy (exhibit A). The plaintiff filed an objection to the defendant's motion on February 26, 2003 accompanied with a memorandum of law in support of the objection, an affidavit of the plaintiff, portions of the legislative history of the underinsured and uninsured motorist statute, a copy of the OLR amended bill analysis for the statute, as well as case law. The plaintiff filed a supplemental affidavit on March 27, 2003.
Allstate has appeared in this action but is not a party to the motion for summary judgment, therefore, the court will refer to Massachusetts Bay as the defendant.
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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of CT Page 7547-bn any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002).
The defendant argues that the plaintiff is barred from recovering under the policy because the workers' compensation act provides his exclusive remedy. Furthermore, the defendant claims that General Statutes § 38a-336 (f), an exception to the workers' compensation act, does not apply to present case because the plaintiff was not occupying the vehicle at the time of the accident.
The plaintiff refutes the defendant's contentions, arguing that the exception found in § 38a-336 (f) applies to this case because the plaintiff was occupying the vehicle in the sense that the plaintiff exited the vehicle to direct the fire truck through the intersection and then intended to return to the vehicle immediately. The plaintiff asserts that the legislature did not intend to limit recovery to only those individuals actually sitting within a covered automobile.
General Statutes § 38a-336 (f) provides, "[n]otwithstanding subsection (a) of section 31-284 [workers' compensation act], an employee of a named insured injured while occupying a covered motor vehicle in the course of employment shall be covered by such insured's otherwise applicable uninsured and underinsured motorist coverage." Occupying is defined by the policy to mean "in, upon, getting in, on, out or off." (Defendant's Exhibit A.) In the present case the plaintiff was not getting in, or out of a covered vehicle when he was injured by a motor vehicle. The plaintiff was not physically touching the covered vehicle and in fact was in the middle of an intersection directing traffic when struck by a motor vehicle. These facts are not in dispute. General Statutes § 38a-336 (f) applies only to those injured "while occupying a covered motor vehicle . . ." Accordingly, because the plaintiff was not in, upon, getting in out or off a motor vehicle at the time of the injury, the defendant's motion for summary judgment is granted. CT Page 7547-bo
D. Michael Hurley, JTR