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Smith v. Nationwide Mut. Ins. Co.

Supreme Court of Connecticut

May 1, 1990

Celestine SMITH
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, et al. HARTFORD CASUALTY INSURANCE COMPANY
v.
Celestine SMITH.

Argued March 8, 1990.

Martin M. Looney, with whom were Thomas F. Keyes, Jr., and, on the brief, John A. Keyes, New Haven, for appellant (Celestine Smith).

Philip F. von Kuhn, Bridgeport, for appellee (Hartford Cas. Ins. Co.).

Before SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

[214 Conn. 735] CALLAHAN, Associate Justice.

The sole issue in this appeal is whether Celestine Smith is a covered person under the terms of an insurance policy issued by Hartford Casualty Insurance Company (Hartford Casualty) to Robert Harrington. [1] On the basis of stipulated facts, an arbitration panel concluded that Smith was not entitled to recover under the policy. Subsequently,

Page 741

Smith, the plaintiff in the first case, applied to the Superior Court to vacate, modify or correct the award. See General Statutes § 52-418(a)(4). Hartford Casualty, the plaintiff in the second case, applied to the Superior Court to confirm the award. The trial court denied Smith's application and confirmed the award of the arbitration panel. Smith thereafter took an appeal to the Appellate Court which this court transferred to itself, pursuant to Practice Book § 4023. We find no error.

[214 Conn. 736] According to the stipulation of facts, on March 22, 1986, Smith was a passenger in an automobile owned and operated by Eric S. Harrington when it was involved in a one car accident. She suffered severe injuries. Damages attributable to Smith's injuries could exceed $260,000.

Eric Harrington was insured by Nationwide Mutual Insurance Company (Nationwide). Pursuant to its policy, Nationwide paid Smith $30,000 on behalf of its insured. [2] Because Eric Harrington's policy did not fully compensate her, she also pursued a claim under a policy issued by Hartford Casualty to Robert Harrington, the father of Eric Harrington. The policy issued by Hartford Casualty provided coverage for two cars owned by Robert Harrington, neither of which was the automobile involved in the accident in question. As to each of Robert Harrington's automobiles, the policy provided $100,000 of underinsured motorist coverage.

On appeal, Smith claims she is entitled to recover underinsured motorist benefits under Hartford Casualty's policy issued to Robert Harrington. Her argument is based upon the premise that once a policy provides liability coverage to an insured, the underinsured motorist coverage therein is coextensive with the liability coverage. In support of her argument, Smith cites the liability coverage section of Hartford Casualty's policy which provides that "[w]e will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident." The policy defines "covered person" as "you or any family member for the ownership, maintenance or use of any auto or trailer." Smith contends that Eric Harrington, as a family member, was [214 Conn. 737] a "covered" person under the terms of Robert Harrington's policy, who became legally responsible for her injuries because of an automobile accident while driving "any auto." Because Robert Harrington's policy provides liability coverage to Eric Harrington while using "any auto," Smith argues that the policy must also provide underinsured benefits to her as an occupant of that vehicle.

Smith's analysis, however, crumbles at its foundation because Eric Harrington was not a "covered" person under the liability portion of Robert Harrington's policy in these circumstances. That policy explicitly excludes from coverage "any vehicle other than your covered auto which is owned by any family member." Thus, it did not provide liability coverage to Eric Harrington while he was driving his own vehicle, a vehicle not covered by the policy. Apparently recognizing this limitation, Smith cites our decision in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982), to argue that uninsured motorist coverage attaches to the insured person and therefore "an insured party may receive the benefits of a policy even though not occupying a vehicle insured under the policy." Thus, Smith asks this court to invalidate the policy's exclusion "in the context of uninsured/underinsured motorist coverage." This approach, she claims, would further the public policy embodied in General Statutes § 38-175c and § 38-175a-6(a) of the Regulations of Connecticut State Agencies. [3] We are unpersuaded by her arguments.

Page 742

[214 Conn. 738] "Section 38-175c(a)(1) requires insurance, designated as 'uninsured motorist coverage,' for protection against operators of uninsured and underinsured motor vehicles...." American Motorist Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990). Section 38-175c(a)(1) states: "Every policy shall provide insurance, herein called uninsured motorist coverage ... for the protection of persons insured thereunder...." In Harvey v. Travelers Indemnity Co., we held that the public policy embodied in § 38-175c directs that uninsured motorist coverage is "person oriented" and [214 Conn. 739] therefore must be provided to insureds while they are occupants of insured vehicles or uninsured vehicles. Harvey v. Travelers Indemnity Co., supra, 188 Conn. at 248, 449 A.2d 157. "The coverage attaches to the insured person, not the insured vehicle." Id. In Harvey, we ruled that the plaintiff, an insured under his mother's policy, was entitled to coverage under that policy, even though he was injured while occupying a vehicle owned by his father which was not insured. We concluded that the exclusion in the policy, which purported to disclaim liability because the plaintiff was injured while occupying an uninsured vehicle, was invalid as against the public policy underlying uninsured

Page 743

motorist coverage in Connecticut. Id., at 246, 249, 449 A.2d 157.

Unlike Harvey, however, Smith is not an insured under the defendant's policy. The portion of the policy defining uninsured motorist coverage provides: "We will pay damages which a covered person is legally entitled to recover from the owner or operator of an [214 Conn. 740] uninsured motor vehicle because of bodily injury: 1. Sustained by a covered person; and 2. Caused by an accident." Thus, in order for Smith to recover under the terms of the policy, she must satisfy both conditions. The policy defines "covered person" in this part as: "1. You or any family member; 2. Any other person occupying your covered auto; 3. Any ...


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