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Puente v. Progressive Northwestern Insurance Co.

Court of Appeals of Connecticut

May 15, 2018

WILSON PUENTE
v.
PROGRESSIVE NORTHWESTERN INSURANCE COMPANY

          Argued February 1, 2018

         Procedural History

         Action to recover damages for underinsured motorist benefits allegedly due under a policy of automobile insurance issued by the defendant, and for other relief, brought to the Superior Court in the judicial district of Stamford, where the court, Povodator, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          John C. Turner, Jr., for the appellant (plaintiff).

          John W. Cannavino, Jr., with whom, on the brief, was Alexandra J. Zeman, for the appellee (defendant).

          Lavine, Prescott and Elgo, Js.

          OPINION

          PRESCOTT, J.

         In this action to recover underinsured motorist benefits pursuant to an insurance policy issued by the defendant, Progressive Northwestern Insurance Company, to Wilson Roofing, LLC (Wilson Roofing), the plaintiff, Wilson Puente, appeals from the judgment of the trial court granting the defendant's motion for summary judgment. The plaintiff claims that the trial court improperly granted the motion because a genuine issue of material fact existed regarding whether (1) he was a named ‘‘insured'' within the meaning of the policy issued to Wilson Roofing or (2) even if he was not the named insured, he is still entitled to recover pursuant to the policy because he was ‘‘occupying'' a vehicle covered by the policy when he sustained his injuries. We affirm the judgment of the trial court.

         The record reveals the following facts and procedural history. The plaintiff alleged in his complaint that he was occupying or in the process of exiting a 2001 GMC Savana G3500 in a parking lot in Norwalk when Cristian Zuna, a nonparty, struck him with her 2008 Honda Accord, causing him to suffer injuries. The plaintiff further alleged that any damages he suffered as a result of the accident were covered under a commercial auto policy through which the defendant provided uninsured/underinsured motorist coverage to the plaintiff's business, Wilson Roofing.

         On May 6, 2016, the defendant filed a motion for summary judgment in which it argued that there is no genuine issue of material fact regarding whether (1) the plaintiff was insured under the policy because he was not ‘‘occupying'' the vehicle at the time of the accident, and (2) the vehicle was not an ‘‘insured auto'' under the policy. The plaintiff filed a motion in opposition to the motion for summary judgment arguing that there was a genuine issue of material fact as to whether he was the named insured within the meaning of the policy or that he was ‘‘occupying'' an insured vehicle at the time he sustained his injuries.

         At his deposition, a transcript of which the defendant attached as an exhibit to its motion for summary judgment, the plaintiff testified that he operates a home improvement company known as Wilson Roofing and Siding, LLC, which has four or five employees.[1] On the morning of May 15, 2014, the plaintiff drove to a parking lot at Rick's Main Roofing at 26 Fitch Street in Norwalk. The plaintiff worked for Rick's Main Roofing as a subcontractor and had two assigned parking spaces in that lot. The plaintiff left for a job assignment and returned to the parking lot at Rick's Main Roofing sometime between 3 and 3:30 p.m. The plaintiff parked his vehicle with the front end of his vehicle facing into the parking space.[2] He gathered the papers he needed to take into Rick's Main Roofing, stepped out of the vehicle, and walked toward the rear of the vehicle. After he walked past the rear of his vehicle, he noticed a Honda Civic traveling toward him and was forced to jump onto the front end of the Honda to avoid being hit. He suffered injuries to his left foot after it was caught under the front end of the Honda Civic.

         It is undisputed that the commercial auto insurance policy issued by the defendant to the plaintiff, which was in effect at the time of the accident, provided coverage for some of Wilson Roofing's vehicles. The declarations page of that policy states that the defendant provided commercial auto insurance coverage and that the ‘‘named insured'' was ‘‘Wilson Roofing, LLC.''

         Following a hearing, the court granted the defendant's motion for summary judgment. The court concluded that the language of the policy was unambiguous and that there was no genuine issue of material fact regarding whether the plaintiff was a named insured within the meaning of the policy. Specifically, the court concluded as a matter of law that Wilson Roofing, and not the plaintiff, was the named insured under the policy. The court also concluded that, even if he was not the named insured, the plaintiff had failed to raise a genuine issue of material fact that he was still entitled to recover pursuant to the policy language that extends coverage to persons ‘‘occupying'' a vehicle insured under the policy because he failed to raise a genuine issue of material fact that he was ‘‘occupying'' such a vehicle when he sustained his injuries. This appeal followed.

         The plaintiff claims on appeal that the court improperly concluded that there was no genuine issue of material fact as to whether (1) the policy provided underinsured coverage to him personally regardless of whether he was occupying the vehicle and (2) he was ‘‘occupying, '' within the meaning of the policy, an insured vehicle at the time he sustained his injuries. We are not persuaded.

         We first set forth the applicable standard of review. ‘‘In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although 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.'' (Internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC, 110 Conn.App. 679, 684, 956 A.2d 581 (2008).

         ‘‘Summary judgment shall be granted 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. . . . A fact is material when it will make a difference in the outcome of a case. . . . The party moving for summary judgment bears the burden of demonstrating the absence of any genuine issue of ...


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