Estavien v. Progressive Casualty Insurance Company

Ruby ESTAVIEN v. PROGRESSIVE CASUALTY INSURANCE COMPANY et al.

No. FBTCV176068795S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

March 1, 2019

UNPUBLISHED OPINION

OPINION

STEWART, J.

Defendant Sacoto Agency, LLC moves for summary judgment on count two of the amended complaint (no. 108.00) filed by plaintiff Ruby Estavien. The defendant was retained by the plaintiff’s grandfather, Paul Noel, to secure automobile insurance for his livery service. While the plaintiff was a member of Noel’s household, she was seriously injured in a car accident. The $ 120, 000 she recovered from the tortfeasor and her driver was not adequate for her injuries. She brought this action in breach of contract against the co-defendant, Progressive Casualty Insurance Company ("Progressive"), and in negligence against this defendant to recover what she claims should be $ 1.5 million in underinsured motorist benefits in that policy. This defendant argues that summary judgment should enter in its favor on the negligence claim on the grounds that (1) the defendant did not cause the plaintiff’s damages, and (2) the requirements of General Statutes § 38a-336(a)(2) do not apply to commercial policies such as that purchased by the plaintiff’s grandfather. For the reasons that follow, the court denies the motion on these grounds. However, the court believes that there is a serious question as to whether the plaintiff has standing to sue this defendant, and even if she has standing, whether this defendant owes a duty to her. Accordingly, the court orders supplemental briefing on those issues as set forth in an accompanying order.

MATERIAL FACTS

This defendant secured a series of commercial automobile insurance policies for Noel from co-defendant Progressive. Plaintiff’s Exhibits (Pl. Ex.) A-L (no. 139.00). Each policy insured one vehicle, a 2007 Chevrolet Express G3500. See, e.g., Pl. Ex. L (no. 139.00). The plaintiff was covered by the policy’s Uninsured/Underinsured Motorist Coverage Endorsement. That endorsement defines "insured" as "you or a relative" "if the named insured shown on the Declarations Page is a natural person" (Pl. Ex. M (no. 140.00)). The named insured is Paul Noel. Id. The policy defines "relative" as "any person living in the household in which the named insured resides who is related to the named insured by blood, marriage, or adoption, including a ward or foster child. This term only applies if the named insured is a natural person." Id. The insuring agreement provides: "we will pay for damages, ... which an insured is legally entitled to recover from an owner or operator of an uninsured auto because of bodily injury: 1. Sustained by any insured; 2. Caused by an accident; and 3. Arising out of the ownership, maintenance, or use of an uninsured auto." Id.

Prior to March 31, 2015, Noel’s Progressive policies consistently had limits of $ 20, 000 each person/$ 40, 000 each accident for both liability and underinsured motorist coverage (Pl. Exs. A-J (no. 139.00)). On March 31, 2015, Noel told this defendant that he needed $ 1.5 million in liability coverage to meet Connecticut Department of Transportation requirements for his business (Pl. Ex. O (no. 141.00)). In response to that request, a Sacoto employee name Miluidy called Progressive, which recorded the conversation (Pl. Ex. P (no. 142.00)). In the first recording, Miluidy asked the Progressive representative for the addition of a form MC 1641B to the policy (Pl. Ex. P). The representative of Progressive advised Miluidy that the liability limits had to be increased to $ 300, 000 combined single limits. Id. Progressive made changes to the policy that date to increase the liability limits to $ 300, 000 and to change the uninsured/underinsured motorist limits to $ 50, 000 combined single limit (Pl. Ex. K (no. 139.00)). There was no discussion of underinsured motorist coverage or the $ 50, 000 limit in the first recording (Pl. Ex. P.)

Later that same date, Miluidy called Progressive again and asked if it could provide $ 1.5 million in liability coverage (Pl. Ex. Q (no. 142.00)). When Progressive’s representative indicated that it could, Miluidy requested an increase in liability coverage to $ 1.5 million. Id. When Progressive’s representative asked Miluidy about uninsured/underinsured motorist coverage limits, Miluidy stated that those would remain at the $ 50, 000 combined single limit. Id. There is no indication in the recording that she stopped the conversation to talk to Noel to confirm that he agreed. Id. Moreover, there is no evidence of any kind that has been submitted by any party regarding any conversation between Noel and anyone at Sacoto regarding whether the underinsured motorist coverage limits should be equal to the new liability limits Noel was requesting or whether they should be lower.

Progressive issued new declaration pages reflecting first the $ 300, 000 liability limit and the $ 50, 000 underinsured motorist coverage limit and then the $ 1.5 million liability limit and the $ 50, 000 underinsured motorist coverage limit (Pl. Exs. K and L (no. 139.00)). In addition, Progressive sent to Noel at least one informed consent form required by General Statutes § 38a-336(a)(2) (Pl. Ex. R (no. 142.00)). That informed consent form, which was written in English, explained uninsured and underinsured motorist coverage and included this warning in letters that were bold, all capitals and underscored:

WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PUCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OF ANOTHER QUALIFIED ADVISOR.

Id. Directly below that warning was a signature line. Id. Noel signed and dated it April 8, 2015. Id. There is no evidence that Noel consulted with Progressive or Sacoto about this form. At his deposition, Noel testified that he did not know what underinsured motorist coverage is, that as a native Creole speaker he was not comfortable speaking English, and that he had relied upon this defendant for help with insurance documents in the past (Pl. Ex. O (no. 141.00)).

The plaintiff was injured on March 30, 2016, after this change in the policy limits. Complaint, ¶ 1.

LEGAL ANALYSIS

I. SUMMARY JUDGMENT STANDARD

"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith 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 ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312, 77 A.3d 726 (2013). "Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). The opposing party must demonstrate that she has sufficient counterevidence to raise a genuine issue of material fact as to each of the essential elements of her cause of action. See Stuart v. Freiberg, 316 Conn. 809, 823-24, 116 A.3d 1195 (2015).

II. GENERAL STATUTES § 38a-336(a)(2) APPLIED TO THE PLAINTIFF’S GRANDFATHER’S POLICY

General Statutes Section 38a-336(a)(2) requires that the limits for underinsured motorist coverage be equal to the limits for liability coverage unless the policyholder signs a written informed consent form for lower limits:

Notwithstanding any provision of this section, each automobile liability insurance policy issued or renewed on and after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements that extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form that shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner, (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state: "WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED

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