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Cohn v. Pacific Employers Ins. Co.

Supreme Court of Connecticut

January 30, 1990

Stuart COHN, Conservator (ESTATE Of Jill COHN)

Argued Nov. 1, 1989.

Page 545

Ira B. Grudberg, with whom was Alice S. Miskimin, New Haven, for appellant (plaintiff).

Jesse M. Frankl, with whom was Jean Molloy, Glastonbury, for appellee (defendant).


COVELLO, Associate Justice.

This is an appeal from a judgment following a ruling of the trial court, Corradino, J., that concluded that the defendant's insurance contract was inapplicable to the plaintiff's claim. The principal issue is whether an "excess" or "umbrella" insurance policy [213 Conn. 541] provides coverage to third party claimants injured through the acts of uninsured or underinsured motorists. We conclude that neither the language of this policy nor the provisions of General Statutes § 38-175c [1] require such a result, and therefore, find no error.

[213 Conn. 542] The relevant facts are undisputed. On August 11, 1983, the defendant, Pacific

Page 546

Employers Insurance Company (PEIC), had in force an "Excess Blanket Catastrophe Liability Policy," (umbrella policy) insuring Joseph Cohn & Son, Inc. (insured), a New Haven commercial painting contractor. The PEIC umbrella policy provided blanket coverage of $5,000,000, this sum to be available, however, only in the event of the exhaustion of the coverage provided by three other specifically identified policies. One of these underlying policies was the insured's automobile liability policy that provided coverage for each of twenty-two vehicles. [2] The insuring agreement [3] stated that "PEIC will indemnify [213 Conn. 543] the insured for ultimate net loss in excess of the retained limit hereinafter stated which the Insured shall become legally obligated to pay as damages because of A. personal injury or B. property damage or C. advertising injury...." (Emphasis added.)

[213 Conn. 544] On August 11, 1983, the plaintiff's wife, Jill Cohn, while operating one of the insured automobiles, was severely injured in a collision at the intersection of Temple and Grove Streets in New Haven. Transamerica Insurance Company, insurer of the other vehicle involved in the collision, paid the plaintiff $25,000 which was the full amount of its liability policy. Despite the exhaustion of the limits of two other policies available to Jill Cohn that were primary to the PEIC umbrella policy and that provided underinsured motorist coverage, the total sums paid were insufficient to

Page 547

compensate Jill Cohn's estate for her injuries and losses. [4]

The plaintiff, the conservator of his wife's estate, made a timely demand for payment under the PEIC umbrella policy, claiming that the policy provisions were applicable to a situation where the responsible tortfeasor was an underinsured motorist. PEIC denied the claim. On April 30, 1986, the plaintiff brought suit, alleging a breach of the insurance contract. PEIC filed a motion to strike the complaint as revised in its entirety, on the ground that the insurance contract did not provide coverage under the circumstances described in the complaint.

The trial court, Corradino, J., granted the motion to strike, concluding that: (1) the umbrella policy's language was unambiguous; (2) the umbrella policy did not provide underinsured motorist protection; and (3) the umbrella policy was not an "automobile liability policy" within the meaning of General Statutes § 38-175c and therefore, as a matter of law, the policy was not required to provide uninsured motorist coverage. The plaintiff declined to plead over, and on May 15, 1989, the trial court, Quinn, J., rendered judgment for the [213 Conn. 545] defendant. The plaintiff appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, the plaintiff first argues that the trial court erred in concluding that the language of PEIC's umbrella policy was not ambiguous. Specifically, he contends that paragraph 3(e) of the "Conditions" section of the umbrella policy renders the policy ambiguous as to its nature and the scope of its coverage. Therefore, the plaintiff argues, according to well established principles of insurance contract construction, the policy must be interpreted in the light most favorable to the plaintiff; i.e., so as to provide underinsured motorist coverage to Jill Cohn. See, e.g., Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980); Dickinson v. Maryland Casualty Co., 101 Conn. 369, 378-79, 125 A. 866 (1924). We do not agree.

Paragraph 3(e) of the policy states, "[a]s this policy is excess insurance, the insured warrants that coverage under the uninsured motorist laws will be maintained during the policy period. It is agreed that the Named Insured shall promptly reimburse PEIC for any amount of ultimate net loss paid on behalf of any Insured as respects any payment made under an uninsured motorist law, or any similar law."

This language is neither ambiguous nor does it broaden the scope of the policy's coverage. Rather, it describes as a condition to the policy's issuance, the circumstances under which the insured would be liable to the carrier. First, it contains the insured's representation that uninsured motorist coverage would be maintained during the policy period. Clearly, if paragraph 3(e) was providing uninsured motorist coverage, as the plaintiff contends, it would not be necessary to include a representation that uninsured motorist coverage would be maintained during the policy period as [213 Conn. 546] such coverage would already exist within the four corners of the very same policy. Second, paragraph 3(e) mandates that the insured must promptly reimburse PEIC for any loss that PEIC may have to pay by reason of any uninsured/underinsured motorist law. In other words, it is the insured who is agreeing to pay PEIC for any uninsured/underinsured motorist claims, and not vice versa, as the plaintiff contends. Nowhere does PEIC agree to provide uninsured or underinsured coverage. Where the terms of a policy are clear and unambiguous, they will be given their plain and ordinary meaning. As ...

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