SNIDE v. SMITH, No. 124010 (Apr. 16, 2003)

LEUBA, JUDGE TRIAL REFEREE.

This vigorously contested motion for summary judgment was filed by the defendant, Zurich American Insurance Company ("Zurich") on the ground that there is no genuine issue of material fact, and, therefore, it is entitled to judgment as a matter of law because the claim brought by the plaintiff, Mary Snide, the Administratrix the Estate of Desiree Snide, is not covered by the Zurich insurance policy.

On March 12, 2003, the court heard oral arguments on the defendant Zurich's motion for summary judgment. At oral argument, the parties stipulated to the facts and asked the court to rule, as a matter of law, whether the business policy prohibited the plaintiff from any recovery.

The following facts are necessary background to the resolution of this motion. On December 5, 1999, the plaintiff's decedent, Desiree Snide ("decedent"), was killed while a passenger in a 1992 Pontiac Grand Am automobile being operated by Noah Smith ("Smith") who was intoxicated. At the time of the accident, the vehicle was owned by the decedent's father, Douglas Snide ("Snide"), and was insured by State Farm Insurance Company ("State Farm") with coverage limits of $100,000.00 per person and $300,000.00 per accident. The operator of the vehicle, Smith, was insured by an automobile liability insurance policy issued by Allstate Insurance Company ("Allstate") with coverage limits of $50,000.00.

Snide also owned a second automobile, insured by a business automobile policy issued under a separate policy by Zurich, which provided for underinsured motorist coverage in the amount of $300,000.00. State Farm and Allstate tendered $150,000.00 ($100,000.00 on the State Farm policy and $50,000.00 on the Allstate policy) to the plaintiff exhausting all available liability coverage. The plaintiff then instituted suit against Smith and Zurich seeking uninsured motorist benefits pursuant to the CT Page 4731 business policy. The suit was subsequently withdrawn as to Smith.

"[A] motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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 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 party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitled him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Mytych v. May Dept. Stores Co., 260 Conn. 152, 164 n. 8 793 A.2d 1068 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663 (1997). "[A]though the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment.]" (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). "[C]onclusory statements, in [an] affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

The task before the court is to determine if there is a genuine issue of material fact between the parties as to whether Zurich's policy CT Page 4732 insures the plaintiff under the facts of this case. Zurich argues there is no genuine issue of material fact because the language of the policy excludes coverage in this situation. The pertinent language of the Zurich policy states:

This insurance does not apply to any of the following:

. . .

4 "Bodily Injury" sustained by:

. . .

c. Any "family member" while "occupying" or when struck by any vehicle owned by you that is insured for Underinsured Motorists Coverage on a primary basis under any other Coverage Form or policy.

This language, Zurich argues, is consistent with Connecticut General Statutes § 38a-336 (d). "If any person insured for uninsured and underinsured motorists coverage is an occupant of an owned vehicle, the uninsured and underinsured motorists coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available." General Statutes § 38a-336 (d).

The plaintiff argues that the motion is procedurally defective and that the terms of the contract are ambiguous, and, therefore, preclude summary judgment from being granted.

According to the plaintiff, Zurich has not presented an "affidavit, deposition testimony, disclosures, written admissions or the like to support its assertion there is no genuine issues of material fact exist in this case." (Plaintiff's Memorandum, p. 4.) "It is the trier of fact's job to determine what `you' in the exclusion refers to which in turn will determine if the exclusion applies at all; is a permissible limitation or reduction of uninsured coverage required by statute, or even if a permissive limitation or reduction pursuant to the insurance regulations is it sufficiently ambiguous to render it inapplicable and unenforceable. Any ambiguity within an insurance contract should be construed in favor of providing insurance coverage." (Plaintiff's Memorandum, p. 5.)

Procedurally, Zurich's motion is not defective because of the failure CT Page 4733 to include an affidavit. The parties have stipulated to the facts and have asked the court to resolve this issue on the law. Where the issue on summary judgment is one of law only, an affidavit is not necessary to the resolution of the motion. Boulay v. Bigonesse, 3 CSCR 320 (1988). See also, Barone v. Schuster Express, Inc., 2 Conn. Sup. 315 (1987) (failure by both parties to file supporting affidavits did not preclude the court from ruling on the motion). Furthermore, the parties have stipulated to the facts. The sole issue is the proper interpretation of the Zurich policy that has been submitted to the court. Zurich's motion is found to be procedurally adequate. Whether this issue could have been raised in another manner is immaterial. This court will not elevate form over substance.

Zurich attached to its memorandum a copy of the policy purported to be in effect at the time of the accident. The plaintiff offers no evidence countering the validity of this policy, and, therefore, even if the stipulation did not reach the policy terms, Zurich has sufficiently met its burden of submitting evidence to establish that this was the policy in effect at the time of the accident.

Zurich argues that the plain language of the policy excludes the plaintiff from coverage because of the language fund in section C (4) (c). Zurich states that the policy is made out to Snide individually and extends coverage to his family. Under Zurich's theory, the decedent is a "family member" and would normally be entitled to coverage but for the exclusion in section C (4) (c). The plaintiff claims that the decedent was covered under the policy, but that the exclusion does not apply to her.

The plain language of the policy, however, does exclude the decedent from coverage. The decedent was in a car owned by Snide that had underinsured motorists coverage under the State Farm policy. The language of C (4) (c), when applied to these facts, excludes the decedent from coverage under the policy. Zurich has sufficiently met its burden of showing the absence of any dispute of material fact regarding the applicability of the policy exclusion to the facts in the present case, and the plaintiff has failed to submit any evidence establishing the existence of any disputed fact.

The plaintiff argues that the language of the policy is ambiguous as to the definition of "you," and, thus, whether the exclusion applies to the decedent is in dispute. This argument exposes the fatal flaw in the plaintiff's action. For the plaintiff to bring this action, it must show that the decedent was covered under the Zurich policy. If the policy does not cover the decedent, no claim can be brought. Therefore, the plaintiff CT Page 4734 must proceed under the theory that "you" refers to Snide and his family. The plaintiff attempts to have it both ways by arguing that the meaning of "you" is unambiguous when it comes to who is covered by the Zurich policy, but suddenly becomes ambiguous when it comes to deciding whether the exclusion of C (4) (c) applies. When the language of the policy is applied to these facts, there is no material fact in dispute as to the applicability of the exclusionary provision, C (4) (c). Zurich has met its burden of showing the absence of any issue of material fact regarding the inability of the plaintiff to recover uninsured motorist benefits under this policy and the plaintiff has failed to submit evidence establishing the existence of any disputed material fact as to whether coverage is excluded.

For the foregoing reasons, the evidence stipulated by both parties shows there is no dispute of material fact regarding the decedent's lack of coverage under these facts. The law favors the defendant. The defendant Zurich's motion for summary judgment is granted.

Leuba, JTR