Doyle v. Metropolitan Property & Casualty Insurance

PALMER, J.,

with whom BERDON and MCDONALD, Js., join, dissenting. I disagree with the majority’s conclusion that the tortfeasor’s vehicle in this case was not underinsured within the meaning of General Statutes (Rev. to 1993) § 38a-336, as amended by Public Acts 1993, No. 93-77, § 2, Public Acts 1993, No. 93-297, § 1, and Public Acts, Spec. Sess., May 25, 1994, No. 94-1, §§ 35 and 36.

As the majority acknowledges, this court never has resolved the question of whether a tortfeasor’s vehicle is underinsured for purposes of § 38a-336 when “the tortfeasor’s single limit liability coverage is less than the per accident limit of the plaintiffs split limit uninsured [and underinsured] motorist coverage.”1 Neither the language nor the legislative history of § 38a-336 *92expressly addresses the circumstance in which the underinsured motorist provision of the insured’s policy has two different liability limits.

I believe, however, that the fundamental policy underlying our underinsured motorist statutes mandates the conclusion that the tortfeasor in this case was underin-sured within the meaning of our statutory scheme. It is not disputed that underinsured motorist coverage should be available to protect an injured claimant to the same extent that the claimant would have been protected if the tortfeasor had possessed as much in coverage under his or her liability policy as the claimant possesses under a policy of underinsured motorist coverage. See, e.g., American Motorists Ins. Co. v. Gould, 213 Conn. 625, 630, 632, 569 A.2d 1105 (1990), overruled in part on other grounds, Covenant v. Coon, 220 Conn. 30, 37, 594 A.2d 977 (1991). To make a meaningful comparison between a policy that, like that of the tortfea-sor’s policy, contains a single limit, with a policy that, like that of the plaintiffs policy, contains split limits, it is necessary to treat the tortfeasor’s single limit policy as its split limit equivalent, in this case $100,000 per person and $100,000 per accident. See, e.g., Windsor Ins. Co. v. Judd, 321 Or. 379, 381, 898 P.2d 761 (1995) ($60,000 single limit liability coverage provides “$60,000 per person subject to a limit of $60,000 per accident”); Mutual of Enumclaw Ins. Co. v. Key, 131 Or. App. 130, 132, 883 P.2d 875 (1994) (“[a] single limit policy providing $300,000 of coverage is essentially a split-limit policy with limits of $300,000 per person and $300,000 per accident”). When one compares the tort-feasor’s policy limits as so characterized with the limits of the plaintiffs policy, it is apparent that the tortfeasor was underinsured with respect to the per accident limit of her liability policy.2 This is true even though the per *93accident component will be activated only in cases, like this one, involving multiple claimants. Other states with analogous statutes also have drawn similar conclusions. See, e.g., Botting v. Allstate Ins. Co., 707 A.2d 1319, 1321 (Me. 1998); Staub v. Hanover Ins. Co., 251 N.J. Super. 66, 68-69, 596 A.2d 1096 (App. Div. 1991); Prudential Property & Casualty Co. v. Szeli, 83 N.Y.2d 681, 687-88, 635 N.E.2d 282, 613 N.Y.S.2d 113 (1994). Indeed, other than our Appellate Court’s decision in D'Arcangelo v. Hartford Casualty Ins. Co., 44 Conn. App. 377, 689 A.2d 502, cert. denied, 240 Conn. 925, 692 A.2d 818 (1997), I am aware of no case in which any court has reached a contrary conclusion.3

The statutory interpretation urged by the plaintiff is consistent with the remedial nature of our underinsured motorist statute. See, e.g., Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 373, 641 A.2d 783 (1994) (“our [under]insured motorist statute is remedial in nature and designed to protect people injured by [underjinsured motorists”). It is axiomatic “that remedial statutes should be construed liberally in favor of those whom the law is intended to protect.” Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10, 18, *94688 A.2d 306 (1997); see also Cotto v. United Technologies Corp., 251 Conn. 1, 8-9, 738 A.2d 623 (1999). Construing our statute in light of these considerations, the plaintiffs policy protects him against several related, but potentially distinct, eventualities. Under the per person component of his underinsured motorist coverage, he is protected against a loss in circumstances in which the tortfeasor carries a lesser amount of liability insurance. Under the per accident component of the plaintiffs underinsured motorist coverage, he is protected against losses of up to $100,000 in the event of an accident where, based on the existence of multiple claimants, the tortfeasor’s liability policy is exhausted before the plaintiff has recovered $100,000 in compensation under the tortfeasor’s policy.

I disagree with the majority that this court’s holding in Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, leads to a contrary conclusion. In Coon, the tortfeasor’s policy provided for split limit liability coverage of $25,000 per person and $50,000 per accident. Id., 31-32. The owner of the automobile in which the claimant was injured carried a single limit $50,000 underinsured motorist policy. Id., 31. After exhausting the tortfeasor’s $25,000 per person liability limits, the claimant sought to recover under, inter alia, the owner’s underinsured motorist policy. Id., 32. The insurer argued that the tortfeasor’s vehicle was not underinsured within the meaning of § 38a-336 because the tortfeasor’s $50,000 per accident liability coverage was not less than the $50,000 single limit underinsured motorist policy under which the claimant sought to recover. See id., 32-33. This court disagreed, concluding that, because the claimant could only make a claim against the $25,000 per person limit of the tortfeasor’s policy, the per person limit was the only limit available to the claimant. Id., 34. Thus, this court stated in Coon that “it is consistent with our earlier interpretation of § 38a-336 to conclude that the *95total of the per person limit is the amount of liability insurance available to the claimant, i.e., $25,000.” Id. Our resolution of the underinsured motorist issue raised by Coon was dictated by the fact that, in that case, the tortfeasor had a split limit liability policy while the policy under which the claimant sought to recover had single limit underinsured motorist coverage. See id., 31-32. In this case, by contrast, the plaintiffs underin-sured motorist policy has split limits whereas the tort-feasor’s policy is a single limit policy.

Indeed, the result that this court reached in Coon and the analysis we employed therein are fully consistent with the interpretation of § 38a-336 that the plaintiff urges. In Coon, the policy under which the claimant sought to recover had single limit underinsured motorist coverage. Id., 31. That policy is the equivalent of a split limit policy with limits of $50,000 per person and $50,000 per accident. The tortfeasor in Coon had a split limit policy of $25,000 per person and $50,000 per accident. Id., 31-32. A comparison of the limits of the policy under which the claimant sought to recover with the limits of the tortfeasor’s policy reveals that, although the per accident limits of the two policies were the same, the tortfeasor’s per person liability limit was less than the per person underinsured motorist limit of the policy under which the claimant sought to recover. Thus, as we concluded in Coon, the tortfeasor in that case was underinsured. Id., 33.

The majority also suggests that the plaintiffs interpretation of § 38a-336 is improper because it is founded not upon the statutory language, but, rather, upon the fact that multiple claimants exhausted the liability limits of the tortfeasor’s policy. See Florestal v. Government Employees Ins. Co., 236 Conn. 299, 306, 673 A.2d 474 (1996) (exhaustion of policy limits due to multiple claims does not alter effect of statute); American Motorists Ins. Co. v. Gould, supra, 213 Conn. 633 *96(same). I disagree. The existence of multiple claimants does not affect the determination of whether the tortfea-sor was underinsured. Rather, the fact that multiple claimants exist is relevant only because the plaintiff would have had no need to seek recovery under his underinsured motorist policy but for the exhaustion of the tortfeasor’s per person policy limits due to the existence of such additional claimants. Although the plaintiff can never recover more than the $100,000 per person limit of his underinsured motorist policy, he is entitled to the same protection that he would have had if the tortfeasor’s per accident limit had been equal to that component of his underinsured motorist policy.

Finally, the defendant contends that the relief sought by the plaintiff in this case was anticipated by the legislature when it provided for the option of underinsured motorist conversion coverage in 1994. See General Statutes § 38a-336a;4 see also Florestal v. Government Employees Ins. Co., supra, 236 Conn. 307-308 (“This option, which is available for an additional premium to consumers who wish to purchase it in lieu of standard underinsured motorist coverage under § 38a-336, pro*97vides enhanced protection to victims of underinsured motorists because, in contrast to coverage under § 38a-336, it is activated when ‘the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person.’ . . . General Statutes § 38a-336a [e].”). There is nothing in the text of this state’s underinsured motorist conversion coverage statute, in its legislative history, or in the reason for its enactment, to support the defendant’s claim that, in light of the insurance policies in effect in this case, the tortfeasor’s vehicle was not underinsured within the meaning of § 38a-336. Consequently, the defendant has failed to demonstrate that the existence of underinsured motorist conversion coverage has a bearing on our determination of the issue raised by this case.

In my view, therefore, the plaintiff, not the defendant, is entitled to summary judgment on the issue of the availability of coverage under the underinsured motorist policy issued to the plaintiff by the defendant.

Accordingly, I respectfully dissent.

For purposes of brevity, this opinion hereinafter refers to uninsured and underinsured motorist coverage, policies or statutes as underinsured motorist coverage, policies or statutes. No distinction between “uninsured” and “underinsured” is intended.

Although the $100,000 per person limit of the tortfeasor’s policy is equivalent to the $100,000 per person limit of the plaintiffs underinsured motorist policy, the tortfeasor’s per accident limit of $100,000 is less than the plaintiffs *93per accident limit, of $300,000. The tortfeasor’s vehicle, therefore, is under-insured.

Moreover, the reasoning of the Appellate Court in D\'Arcangelo has been questioned. For example, the authors of the authoritative commentary on Connecticut’s uninsured and underinsured motorist law have observed: “[T]he question arises whether the decision [in DArcangelo] is consistent with the general philosophy that [underinsured motorist] coverage should be available to protect an injured party to the same extent that [that] individual would have been protected had the tortfeasor possessed as much in liability coverage as the claimant possesses in uninsured/underinsured motorist coverage. See [American Motorist Ins. Co. v. Gould, supra, 213 Conn. 631].” J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (Sup. IV 1997) § 1.6.2, p. S24. Moreover, the trial court in this case, although bound by the Appellate Court’s holding in DArcangelo, indicated that it was “troubled” by the reasoning of the court, in DArcangelo in light of the fundamental purpose of our underinsured motorist statutes.

General Statutes § 38a-336a provides in relevant part: “(a) Each insurer licensed to write automobile liability insurance in this state shall offer, for an additional premium, underinsured motorist conversion coverage with limits in accordance with section 38a-336. The purchase of such underinsured motorist conversion coverage shall be in lieu of underinsured motorist coverage pursuant to section 38a-336. . . .

“(c) Each insurer shall be obligated to pay to the insured, up to the limits of the policy’s underinsured motorist conversion coverage, after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements. If the insured purchases such underinsured motorist conversion coverage, then in no event shall the underinsured motorist coverage be reduced on account of any payment by or on behalf of the tortfeasor or by any third party. . . .

“(e) For purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person. . . .”