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Gabriel v. Mount Vernonfire Insurance Co.

Court of Appeals of Connecticut

November 20, 2018

DOMINGOS GABRIEL ET AL.
v.
MOUNT VERNONFIRE INSURANCE COMPANY

          Argued September 17, 2018

         Procedural History

         Action to recover proceeds allegedly due under an umbrella automobile insurance policy issued by the defendant, and for other relief, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Krumeich, J., on a stipulation of facts; judgment for the plaintiffs as to liability; thereafter, the court denied the defendant's motion to open and vacate the judgment; subsequently, the court granted in part the plaintiffs' amended motion to assess damages and for postjudgment interest, and the defendant appealed to this court. Affirmed.

          Dennis M. Carnelli, with whom were Emily McDonough Souza and, on the brief, Joseph J. Andriola, for the appellant (defendant).

          Michael S. Burrell, with whom were Joseph P. Krevolin and, on the brief, Joram Hirsch, for the appellees (plaintiffs).

          Sheldon, Elgo and Eveleigh, Js.

          OPINION

          EVELEIGH, J.

         The defendant, Mount Vernon Fire Insurance Company, appeals from the judgment of the trial court in favor of the plaintiffs, Domingos Gabriel and his wife, Laurinda Gabriel.[1] On appeal, the defendant argues that the trial court erred in (1) finding that the plaintiffs' primary insurance policy qualified as an underlying policy entitling the plaintiffs to excess coverage; (2) finding that the business exception of the plaintiffs' umbrella insurance policy did not apply; and (3) its determination of damages. We affirm the judgment of the trial court.

         The following stipulated facts and procedural history are relevant to the resolution of this appeal. On September 6, 2011, at approximately 1 p.m., Domingos Gabriel was the passenger in a van operated by Domingos Pires, on Route 58 in Easton, Connecticut, that went off the road and crashed into a building. The accident caused severe injuries to Domingos Gabriel, including injuries to his spine, which rendered him permanently wheelchair bound and severely limited the use of his arms. At the time of the accident, Pires was driving the van for D.A.J., LLC, doing business as Pools Plus, Inc. (Pools Plus), a pool maintenance company. Pires was employed by Pools Plus and his wife, Ana Pires, was a principal in the company.

         When the accident occurred, Pires was insured under a $1 million umbrella liability insurance policy (policy), issued by the defendant. The van was covered by a primary business insurance policy issued by National Grange Mutual Insurance Company (NGM) to Pools Plus. The NGM policy was effective from January 1, 2008 through September 7, 2011, and had a policy limit of $300, 000.

         Domingos Gabriel brought actions, in 2012, against Pires and, in 2013, against Pools Plus to recover damages for his injuries and losses. Laurinda Gabriel, was also a plaintiff in those actions and sought to recover damages for loss of consortium. The plaintiffs recovered judgments in the total amount of $1, 800, 000 from Pires and Pools Plus.[2] NGM paid the plaintiffs $300, 000 toward their judgments.[3] The defendant, however, refused to apply its $1, 000, 000 umbrella coverage to the unpaid balance of the plaintiffs' judgments. The defendant denied coverage because ‘‘the NGM policy provided bodily injury liability coverage of less than $500, 000, '' which, the defendant argues, was not sufficient to trigger excess coverage.

         After the defendant denied Pires' claim, Pires assigned the policy to the plaintiffs.[4] The plaintiffs then commenced the present action to enforce the policy and to recover the excess coverage from the defendant. The trial court tried the case based on stipulated facts. On November 16, 2016, the court found in favor of the plaintiffs, stating: ‘‘[T]he policy declares unambiguously [that] the failure to maintain underlying policies covering the loss that meet minimum limits would not invalidate the policy but merely adjusts the net loss to be paid by the insurer.'' This appeal followed. Additional facts and procedural history will be set forth as necessary.

         Before analyzing the merits of the defendant's claims on appeal, we set forth the applicable standard of review. ‘‘[C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo.'' (Internal quotation marks omitted.) Lexington Ins. Co. v.Lexington Healthcare Group, Inc., 311 Conn. 29, 37, 84 A.3d 1167 (2014). Because ...


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