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Leitkowski v. Middlesex Mutual Assurance Co.

Superior Court of Connecticut, Judicial District of New London, New London

July 6, 2017

Garhard Leitkowski
v.
Middlesex Mutual Assurance Co.

          MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#114)

          Leeland J. Cole-Chu, J.

         In the complaint in this case, filed July 13, 2015, the plaintiff, Garhard Leitkowski, alleges liability of his own automobile insurance company, Middlesex Mutual Assurance Company, under the uninsured motorist provision of the automobile insurance policy issued to him by the defendant. More particularly, the plaintiff alleges that, on or before December 7, 2012, the defendant issued to the plaintiff automobile insurance policy number AU8484977 (" defendant's policy"); the plaintiff was an insured under that policy and complied with all its terms and conditions; in the defendant's policy, the defendant agreed to pay all sums that the plaintiff, as insured, became legally entitled to recover from the owner of an uninsured motor vehicle as damages because of bodily injury caused by an accident arising out of the ownership or use of the uninsured motor vehicle during the term of the policy. The plaintiff alleges that, on December 7, 2012, when the defendant's policy was in full force and effect, the plaintiff was operating his motor vehicle in New London, Connecticut, when a motor vehicle driven negligently in a variety of ways by an uninsured motorist struck the plaintiff's motor vehicle, for the resulting injury and loss to the plaintiff he is entitled under the defendant's policy to recover damages from the defendant.

         The defendant on August 25, 2016, moved for summary judgment on the ground that the allegedly uninsured tortfeasor, whose name is Sphamandla Cele, was not uninsured and, to the contrary, was insured under an automobile liability policy issued by 21st Century North America Insurance Company, policy number 21244596 (" tortfeasor's policy"). The plaintiff filed an opposing brief and affidavit, with exhibits, on January 3, 2017, on which day the motion was argued and submitted. The court apologizes for the delay in ruling.

         To the defendant, this is a simple case in which it is entitled to judgment as a matter of law because the contractual basis for the plaintiff's uninsured motorist insurance claim does not exist. To the plaintiff, the case is by no means simple because the police officer who completed the accident report, the prosecutor who charged the tortfeasor with failure to insure a private motor vehicle, the plaintiff and his attorneys, and more than one representative of the defendant thought that the tortfeasor was uninsured--or at least, in a letter dated January 12, 2015, did not dispute the tortfeasor was uninsured[1]--until some time after this suit was filed.

         There are several evidentiary mysteries before the court. For example, both the certification of the tortfeasor's policy and the 21st Century North America Insurance Company officer, whose affidavit is relied upon by the defendant state, contrary to the several declarations pages submitted with the motion, [2] that the term of the tortfeasor's policy was " 9/24/[20]12 to 12/26/[20]12." Also, within two months, the tortfeasor's policy covered three different vehicles--a Toyota Camry and two 2006 BMW sedans with different vehicle identification numbers.[3]

         According to the police investigation report in evidence, the owner of the vehicle driven by the tortfeasor, a 2006 BMW four-door sedan having vehicle identification number WBAVB13526PS65013 (" the BMW"), was Sandra P. Venades, of Fitchburg, Massachusetts. In all of the exhibits which are claimed to be excerpts of the defendant's policy, the tortfeasor, Cele, is listed as living in New London, Connecticut, and Venades is not listed as an insured. Neither the defendant nor the plaintiff explain, at least in arguments and exhibits concerning the present motion, how the tortfeasor was able to get and keep the tortfeasor's policy, in which the evidence at best indicates that the BMW was not listed as an insured vehicle until a little over a week before the date of the collision in question. On the other hand, under the defendant's policy, there appears to be a sound basis for the defendant to claim that the tortfeasor was insured even if he was driving a vehicle he did not own, with permission of its owner.[4]

         The court rejects the plaintiff's claim that this is a negligence case for purposes of the principle of disfavoring motions for summary judgment. This is first a contract case and, in particular, the present motion concerns coverage under the defendant's insurance policy. See Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010 (1997) (suit to recover under an automobile insurance policy is an action in contract). However, in ruling on a motion for summary judgment, the court holds the movant strictly to its burden of proof of entitlement to judgment as a matter of law. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). Summary judgment is not granted if the facts, properly construed in favor of the nonmoving party, reveal a possibility the latter might prevail. Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). The liability coverage portion of the tortfeasor's policy provides, " we will pay damages for which an insured becomes legally liable due to bodily injury or property damage caused by an auto accident for which coverage under this Part A applies." (Emphasis added.) The evidence indicates that, when this suit was filed in 2015, neither party knew the tortfeasor was insured on the date of the collision, December 7, 2012--and the two-year statute of limitation on suit against Cele, the tortfeasor, had run. See General Statutes § 52-584. The court is highly skeptical that the tortfeasor's policy covered, or would have covered, a claim brought by the plaintiff after the statute of limitation had expired. Therefore, even if the tortfeasor's policy would have covered a timely suit by the plaintiff against the tortfeasor, there is sound reason to doubt that, when this suit was brought, the tortfeasor was insured; i.e., that the tortfeasor could have become " legally liable" for damages claimed by the plaintiff.[5]

         The defendant might argue that it is the plaintiff who should bear the burden of ascertaining whether the tortfeasor was uninsured before he sued the defendant after the statute of limitation on a suit against the tortfeasor had run, and that it is the plaintiff who should bear the consequence of not having done so in this case. It is unnecessary for the court to analyze the merits of such hypothetical claim--or the countervailing claim that the insurer should always bear the consequence of its failure to deny uninsured motorist status. Suffice it to say that, assuming that the tortfeasor was insured on December 7, 2012, the defendant had an active role, as stated above, in encouraging the plaintiff's apparent belief that the tortfeasor was uninsured. Issues of fact regarding estoppel, as well as whether the tortfeasor was insured, prevent the court from concluding that the plaintiff is entitled to judgment as a matter of law.

         For the foregoing reasons, the defendant's motion for summary judgment is denied.

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Notes:

[1]See page 2 of exhibit D to plaintiff's opposition (#117). This and several other exhibits are not authenticated under oath, but objection on that ground is made by neither side.

[2]The declarations pages of the tortfeasor's policy at pages 63-68 of the motion all show the policy term as " 9/24/[20]12 to 3/24/[20]13."

[3]Compare motion page 66 (" New Policy" dated at bottom 9/10/12; covered auto Toyota Camry Hybrid); motion page 63 (" Amend--Policy Change" date 11/29/12; covered BMW VIN ends in CS65093); motion page 67 (" Amend--Policy Change" date 11/29/12 [sic] but date at bottom is 11/30/12; covered BMW VIN ends in PS65013--the same VIN listed on the police investigation report). All these ...


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