Nationwide Insurance v. Gode
Nationwide Insurance v. Gode
Opinion of the Court
This action seeking an injunction and a declaratory judgment was reserved for the advice of this court on a stipulation of the following facts. On October 14,1979, the defendant Christopher Code, a minor child of the defendant John H. Gode, Jr., was a passenger in a car operated by Timothy Dolan which was involved in a two-car aceident in Clinton. At the time of the accident, the defendant Christopher G-ode resided in the household of the defendant, John H. Code, Jr. As a result of the aceident, Christopher Code was seriously injured and has been paid $20,000 by Timothy Dolan’s liability insurance carrier. This was the entire limit of the insurance liability policy on the Dolan automobile and is the minimum liability insurance required by General Statutes §§ 38-175b and 14-112 (a).
The damages from the injuries sustained by Christopher Code, which include the loss of sight in one eye, could exceed $20,000. At the time of the accident, the plaintiff, Nationwide Insurance Company, had in force an automobile liability policy covering the two automobiles owned by the defendant, John H. Code, Jr. A premium was paid to the plaintiff for insurance on each of the two vehicles covered under the policy. This policy provided the minimum uninsured motorist coverage in the amount of $20,000 for each person and $40,000 for each accident.
The defendant Christopher Code was within the definition of an “insured” under the insurance policy as a relative living in the household of the defendant John H. Code, Jr. On February 19, 1980, the defendants made a claim against the plaintiff for additional payments under the uninsured motorist
The questions reserved for the advice of this court are: (1) Was the Dolan vehicle “under-insured” under § 38-175e (b) (2) of the General Statutes? (2) For the purposes of determining the applicability of § 38-175c (b) (2) of the General Statutes, was the liability coverage on the Dolan automobile “less than the applicable limits of liability under the uninsured motorist portion” of the Gode policy? The determination of the second of these questions is decisive of the issues presented.
The basic issue presented is whether, under our statutes, an insured can aggregate or “stack”
In the senate proceedings,
We now turn to the actual language of the statute, which, the plaintiff claims, is determinative of the issues presented. The plaintiff points to the legislature’s selective use of singular and plural terms
We cannot agree with the plaintiff. “In interpreting the meaning of a statute, we attempt to
Even if it were argued that this interpretation was not a fair reading of the statute, the plaintiff’s argument still must fail. If it is assumed, for purposes of this argument, that the legislature intended only that underinsured motorist coverage was to be determined by the uninsured motorist limits of the one “policy” against which a claim is made, since the parties have stipulated that [a]t the time of the accident, the plaintiff had in force an automobile liability policy covering the two automobiles owned by the defendant . . .” (emphasis added), the instant situation clearly falls within the statute’s scope. It is apparent that, even if the
A statute is to be construed by considering its legislative history, language, purpose and the circumstances surrounding its enactment. See Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978), and cases cited therein. At the time of the enactment of § 38-175c (b) (1) and (2), this court had already held that the stacking of uninsured motorist coverages was allowed where the insured was covered by two or more policies and was injured by an uninsured motorist.
It is clear that the legislative intention behind § 38-175c (b) (1) and (2) was “that uninsured motorists coverage also will extend to underinsurance situations.” Se.e comments ,of Joseph C. Mike, commissioner on insurance, Hearings before Joint Standing Committee on Insurance and Real Estate,
“Where two premiums are paid for two vehicles, whether in one policy or two, total coverage for the named insured is doubled since a person can reasonably expect double coverage when he pays double premiums.” Yacobacci v. Allstate Ins. Co., supra, 231. See Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 793, 457 P.2d 34 (1969) ; Hartford Accident & Indemnity Co. v. Bridges, 350 So. 2d 1379, 1381 (Miss. 1977) ; Southern Farm Bureau Casualty Ins. Co. v. Roberts, 323 So. 2d 536, 538 (Miss. 1975) ; Kemp v. Allstate Ins. Co., 601 P.2d 20, 24 (Mont. 1979) ; Grimes v. Concord General Mutual Ins. Co., 120 N.H. 718, 724, 422 A.2d 1312 (1980) (Douglas, J., dissenting) (and cases cited therein); Esler v. United States Services Automobile Assn., 273 S.C. 259, 263, 255 S.E.2d 676 (1979); Cunningham v. Ins. Co. of North America, 213 Va. 72, 79, 189 S.E.2d 832 (1972) ; but cf. 8C Appleman, Insurance Law and Practice § 5106, p. 517 ; 8D Appleman, supra, § 5192, p. 613.
There is no question that if the Dolan vehicle had been uninsured, the defendants, under Safeco
This, however, is not the end of our discussion of this issue. We must still consider whether there was any effective exclusionary or limiting language in the plaintiff’s insurance policy which operated to negate the effect of § 38-175c which we have held allows an insured to stack uninsured motorist coverages when determining underinsured benefits. The plaintiff points to a clause contained in the policy entitled “LIMITS OP PAYMENT [,]
The plaintiff claims that § 38-175c (b) (2)’s reference to “the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made . . .” incorporates the above quoted limitation clause which defines the “applicable limits.” The plaintiff argues that since the language of the policy and that of the statute are plain and consistent, its policy has effectively prevented the defendants from stacking their coverages. We do not agree.
We find that what we said in our discussions of the “other insurance”
“Other than those exceptions, the regulations do not authorize any reduction of coverage because of ‘other insurance.’ Moreover, any provisions of a private contract of insurance which conflict with the statutes or regulations must give way to the latter. General Statutes § 38-175d. The ‘other insurance’ provisions, therefore, cannot prevent aggregation of the uninsured motorist coverage of the two policies in question.” (Footnote omitted.) Safeco Ins. Co. v. Vetre, supra, 332-33; see Pecker v. Aetna Casualty & Surety Co., supra, 450-51; State Farm Mutual Automobile Ins. Co. v. Murphy, 226 Ga. 710, 714, 177 S.E.2d 257 (1970). We have already found that the legislative intention was to put the underinsured motorist coverage on the same footing as uninsured motorist coverage. Since underinsured motorist coverage, as defined in General Statutes § 38-175c, can be determined only by reference to and in comparison with the insured’s uninsured motorist coverages, and since claim is made against an insured’s uninsured motorist coverage after it is determined that the at-fault party is underinsured,
To answer the questions presented, then, we find that the defendants are entitled to aggregate or stack their uninsured motorist coverages in order to determine their underinsured benefits. Therefore, for purposes of § 38-175c (b) (2), the Dolan automobile’s liability coverage ($20,000) was less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made (20,000 & 20,000 = 40,000) and the answer to question 2 is “yes.” It necessarily follows that we answer question 1 “yes.”
In this opinion Speziale, C. J., Petees and Aementano, Js., concurred.
This court has previously considered somewhat similar questions reserved for advice in Simonette v. Great American Ins. Co., 165 Conn. 466, 338 A.2d 453 (1973), and Fidelity & Casualty Co. v. Darrow, 161 Conn. 169, 286 A.2d 288 (1971). We have, where we have deemed it appropriate, exereised our discretion to entertain reservations in actions for declaratory judgments. See, e.g., Fidelity & Casualty Co. v. Darrow, supra.
“Stacking” refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first poliey alone would be inadequate. See Blakeslee v. Farm Bureau Mutual Ins. Co., 388 Mich. 464, 473, 201 N.W.2d 786 (1972) ; see also Van Boozer v. Farmers Ins. Exchange, 219 Kan. 595, 608, 549 P.2d 1354 (1976); Detroit Automobile Inter-Insurance Exchange v. McMillan, 97 Mich. App. 687, 693, 296 N.W.2d 147 (1980); 7 Am. Jur. 2d, Automobile Insurance § 326; 8C Appleman, Insurance Law and Practice § 5103; Widiss, A Guide to Uninsured Motorist Coverage § 2.34a (1981 Sup.); 19 Couch, Insurance (2d Ed.) § 82.1:11 (Pocket Sup.). One court has noted that “[s] tacking is derived from the presumption that when the named insured purchases uninsured motorist coverage
General Statutes § 38-175e (b) (1) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist 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, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”
In Simonette v. Great American Ins. Co., 165 Conn. 466, 473, 338 A.2d 453 (1973), we said: “While a strong public policy argument can be advanced in support of the plaintiff’s desired expansion of the definition of ‘uninsured’ to prevent the particular anomaly presented herein, it is not the function of this court to attempt to improve legislation by reading provisions into it.”
In construing a statute and determining the legislative intent, we may take judicial notice of the discussions on the floor of the General Assembly although such discussions are not controlling on statutory interpretation. See Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 245, 377 A.2d 305 (1977) ; Miller v. Board of Education, 166 Conn. 189, 194, 348 A.2d 584 (1974); Harris v. Planning Commission, 151 Conn. 95, 100, 193 A.2d 499 (1963).
We have also considered the comments of John Day, president of the Insurance Association of Connecticut, and of Charles Watson, president of the Independent Insurance Agents of Connecticut. See Hearings before Joint Standing Committee on Insurance and Real Estate, 1979 Sess., pp. 100-101, 124. It is interesting to note that in testimony before the Joint Standing Committee on Insurance and Real Estate, the commissioner on insurance, Joseph C. Mike, stated: “[T]he bill intends that uninsured motorists coverage also will extend to underinsurance situations. This is a poliey that we’re presently enforcing ... as best we can within the insurance department we don’t know offhand of any companies that are not in compliance with our poliey. We’d like to see this statute—the statute
The legislature is presumed to be mindful of the judicial construction of relevant legislation. Sawyer Savings Bank v. American Trading Co., 176 Conn. 185, 189, 405 A.2d 635 (1978).
We note that Florida has enacted an antistaeking statute since the decision in State Farm Mutual Ins. Co. v. White, 330 So. 2d 858 (Fla. App. 1976). See Fla. Stat. Ann. § 627.4132 (West Pocket Part 1981) and State Farm Mutual Automobile Ins. Co. v. Wimpee, 376 So. 2d 20 (Fla. App. 1979).
We want to be clearly understood as limiting our holding on the reservation before us on this appeal to cases factually similar to this case. This must be said because we anticipate a possible argument extending the analysis herein to accomplish a result that would be absurd. An example that comes to mind is the situation which would result if a plaintiff, urging stacking, was injured or killed, while in an automobile which was insured as only one of a fleet of cars. Our answer to such a situation will be given only when such a circumstance properly presents itself for review. The Rhode Island Supreme Court has noted that in these circumstances “even in those jurisdictions where intra-policy stacking for two or three vehicles is allowed, courts have uniformly denied such an extension of the stacking theory. See e.g. Holloway v. Nationwide Mutual Insurance Co., 376 So. 2d 690 (Ala. 1979) ; Ohio Casualty Insurance Co. v. Stanfield, 581 S.W.2d 555 (Ky. 1979); Linderer v. Royal Globe Insurance Co., 597 S.W.2d 656 (Mo. App. 1980) ; Continental Casualty Co. v. Darch, 27 Wash. App. 726, 620 P.2d 1005 (1980).” Taft v. Cerwonka, 433 A.2d 215, 219n (R.I. 1981).
An “other insurance” clause provides that if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance. See Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 445-46, 370 A.2d 1006 (1976) ; Fidelity & Casualty Co. v. Darrow, 161 Conn. 169, 172, 286 A.2d 288 (1971).
Iii fact, underinsured motorist coverage can be viewed as the equivalent of uninsured motorist coverage to the extent that an injured insured receives less than his uninsured motorist policy limits from a minimally or lesser insured tortfeasor. See Simonette v.
Dissenting Opinion
(dissenting). I would reject this reservation because of certain procedural irregularities but, more importantly, because the stipulation does not contain some information which is essential for an adequate resolution of the questions propounded.
The relief sought by the plaintiff is primarily a declaratory judgment upon whether the defendants have any valid claim under the insurance policy
The complaint contains no allegations which would satisfy the requirements of Practice Book § 390 for rendering a declaratory judgment. No answer or other responsive pleading has been filed. Instead the parties proceeded to file a stipulation in accordance with Practice Book § 3134. The stipulation does resolve the issues of fact raised by the complaint, but does not indicate whether any special defenses will ultimately be raised or whether the conditions precedent to the issuance of the declaratory judgment sought as set forth in § 390 have been met.
In Cavalli v. McMahon, 174 Conn. 212, 215, 384 A.2d 374 (1978), we refused to entertain a reservation under similar conditions: “Thus, the issues have not been joined, and the case is not ready for final judgment in the trial court.” See Gannon v. Sanders, 157 Conn. 1, 4, 244 A.2d 397 (1968); Bronson v. Thompson, 77 Conn. 214, 219, 58 A. 692 (1904). There the court also found that there was nothing in the record to indicate that all persons having an interest in the subject matter had been notified as required by Practice Book §390 (d).
My major reason for declining to answer the questions reserved requires some discussion of the merits of the issues raised. The majority opinion has over-simplified the holding in Safeco Ins. Co. v. Vetre, 174 Conn. 329, 387 A.2d 539 (1978). In part I of Safeco, where we considered a question of inter-policy stacking, we held simply that a reduction of coverage by the “other insurance” clause contained in the policy was invalid because it did not fall within the permissible scope of such clauses sanctioned by § 38-175a-6 (d)
Part II of Safeco dealt with a policy, like the one before us, in which two vehicles were covered and separate premiums were charged for each item of coverage for each vehicle, including uninsured motorist coverage. The question was one of intrapolicy stacking. The policy contained a clause stating that “[w]hen two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each.” Relying upon this clause we adopted the contention of the claimant in that case “that the language of the policy is clear: the one instrument constitutes two policies with identical language and coverage including separate uninsured motorist endorsements affording $20,000 coverage per person.” Id., 334. Since we had declared in part I that stacking was required for separate policies of insurance, the conclusion that the policy considered in part II constituted two separate policies meant that stacking of the uninsured motorist coverages provided for each vehicle was necessary.
The policy before us contains no provision similar to that relied upon in Safeco but provides the contrary: “The insuring of more than one person or vehicle under this policy does not increase our Uninsured Motorists payment limits .... In no event will any insured be entitled to more than the highest limit, applicable to any one motor vehicle under this . . . policy . . . .”
The regulation; Regs., Conn. State Agencies § 38-175a-6 (d); mandates that the insurer’s liability under the uninsured motorist coverage be not less
Although Safeco, part II, appears to have rested primarily upon a policy provision diametrically opposed to the clause here which precludes intrapolicy stacking, that opinion also cited with approval the view expressed by some courts and reiterated by the majority in this ease that “[w]here two premiums are paid for two vehicles, whether in one policy or two, total coverage for the named insured is doubled, since a person can reasonably expect double coverage when he pays double premiums.” Yacobacci v. Allstate Ins. Co., 33 Conn. Sup. 229, 231, 372 A.2d 987 (1976). Whether such an expectation is reasonable in the case of a single policy containing a clause like the one we are considering which unambiguously precludes intrapolicy stacking is greatly to be doubted. Nevertheless, insurance policies are “contracts of adhesion,” not subject to the normal bargaining procedures of ordinary contracts and it would be unconscionable to permit an insurer to collect a premium twice for the same risk. The difficulty in applying that principle to this case is that we do not know from anything in the record whether the premium charged for uninsured motorist coverage with respect to each of the two vehicles is double the
Since I have concluded that the answers to the questions reserved may ultimately depend upon whether the plaintiff insurer is in fact collecting twice for the same risk, an issue which is capable of resolution by competent actuarial evidence, I would reject the present reservation and remand the ease to the trial court for further proceedings.
Accordingly, I dissent.
Regs., Conn. State Agencies § 38-175a-6 (d) provides as follows: “limits op liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of § 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury, (2) paid or are payable under any workmen’s compensation or disability benefits law, or (3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily liability coverage to the extent of the payment.”
Reference
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- Nationwide Insurance Company v. John H. Gode, Jr., Et Al.
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