DeMarinis v. United Services Automobile Ass'n Casualty Insurance
DeMarinis v. United Services Automobile Ass'n Casualty Insurance
Opinion of the Court
This is an appeal from a summary judgment rendered in favor of the defendant. At issue in this appeal is whether, in light of General Statutes §§ 52-555a through 52-555d,
The essential facts giving rise to this lawsuit are not in dispute. On May 26, 1992, Anthony R. DeMarinis, Jr., was operating his motorcycle when it collided with a motor vehicle owned by Donald F. Scarfo and operated by Natalie Scarfo. DeMarinis suffered injuries in the
The plaintiff, June P. DeMarinis, is the surviving spouse of DeMarinis and was appointed administratrix of his estate. The plaintiff claimed damages from the Scarfos as administratrix for the wrongful death of DeMarinis and on her own behalf for loss of consortium. On or about December 10,1992, the plaintiff settled the claims against the Scarfos with the Royal Insurance Company, having requested and received permission from the defendant to do so, for the entire proceeds of the policy. Two hundred thousand dollars was paid on account of the wrongful death claim, and $100,000 was paid on the loss of consortium claim. These payments exhausted the limits of liability under all bodily injury liability insurance policies applicable at the time of the accident.
The plaintiffs insurance policy with the defendant USAA provides uninsured motorist coverage. Under the terms of that coverage, the defendant agreed to “pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by a covered person; and 2. Caused by an accident.” That coverage is provided “only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.”
The policy declarations show limits of liability for uninsured motorist coverage for bodily injury to be $100,000 for each person and $300,000 for each accident. Because there were three premiums, the defendant’s limit of liability for uninsured motorist coverage was $300,000 for all damages arising out of bodily injury sustained by one person and $900,000 for bodily injury resulting from any one accident.
The plaintiffs claim on appeal that the trial court improperly (1) held that a postmortem loss of consortium claim under § 52-555a is dependent and derivative of the claim of the deceased spouse and (2) failed to hold that the defendant’s policy would provide coverage “even under the standard set forth in Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 524 A.2d 641 (1987).” Because those issues are overlapping, we address them together.
Subsequently, our Supreme Court in Ladd v. Douglas Trucking Co., 203 Conn. 187, 191, 523 A.2d 1301 (1987), determined that “a spouse may recover for antemortem loss of consortium in her individual capacity where her common law claim has been joined with the wrongful death action brought by the decedent’s estate pursuant to § 52-555.” The court further found, however, that a spouse may not recover for postmortem loss of consortium under Connecticut statutory or common law. Id., 191.
Shortly thereafter, in Izzo v. Colonial Penn Ins. Co., supra, 203 Conn. 305, the Supreme Court considered whether the spouse of a person injured in an automobile accident was entitled to a separate “per person” recovery for the injury of loss of consortium within the “per occurrence” limit of an automobile liability insurance policy. The policy at issue in Izzo provided liability limits applicable to bodily injury coverage in the amount of $100,000 per person and $300,000 per occurrence. Id., 308. The claim of the injured person in Izzo was settled for $100,000, and the spouse, who was not
On October 1, 1989, § 52-555a was enacted. That statute provides: “Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse shall be separate from and independent of all claims or causes of action for the determination of damages with respect to such death.” The plaintiff argues that the enactment of § 52-555a eliminated the rule set forth in Izzo, making a postmortem loss of consortium claim “separate and independent for all purposes under the law,” including the calculation of limits of liability under a liability insurance policy. She concedes only that a bodily injury must occur before a cause of action for loss of consortium can arise. She, therefore, claims that there were two injuries suffered in the present case for purposes of calculating the liability limitation, the bodily injuries to her husband and her own loss of consortium, and that the limit of liability in this case is $600,000 rather than the $300,000 found by the trial court. We disagree.
Section 52-555a did change the rule set forth in Ladd by making a claim for loss of consortium with respect to the death of a spouse “separate from and independent of all claims or causes of action for the determination
To determine the limits of liability under a liability insurance policy, we look to the policy language rather than to the language of § 52-555a. See id. The relevant language in the policy at issue provides: “The limit of liability for [uninsured motorist] Coverage shown in the Declaration for ‘each person’ multiplied by the number of premiums shown, is our maximum limit of liability for all damages, including ... all ... derivative . . . damages arising out of [bodily injury] sustained by any one person in any one accident.” Thus, the limit of liability under the policy for damages arising out of a single accident is subject to the limitation calculated on the basis of the number of persons suffering “bodily injury.” Only one person sustained bodily injury in this case. See id. The limit of liability is, therefore, $300,000 for all damages suffered as a result of the decedent’s injuries, including any loss of consortium suffered by the plaintiff. Because that limit is not greater than the total amount of the tortfeasor’s liability insurance coverage available to the plaintiff, the tortfeasor’s motor vehicle does not qualify as an “underinsured” motor vehicle, and no coverage is available to the plaintiff
The judgment is affirmed.
In this opinion the other judges concurred.
The text of § 52-555a is set forth hereafter in the text of this opinion. The succeeding three sections require that any claim or cause of action for loss of consortium be brought with or joined with the claims and causes of action with respect to the death of the spouse, that such an action must be commenced within the time in which an action with respect to the death of the spouse may be commenced, and that the claim or cause of action is contingent on proof of facts sufficient to establish recovery for wrongful death of the spouse and is subject to any defenses available against the claim for wrongful death.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.