Opinion
No. CV 03 0194747
March 7, 2005
MEMORANDUM OF DECISION
I. INTRODUCTION
The plaintiff, Connecticut Insurance Guaranty Association ("Association"), brings this declaratory judgment action against the defendants, Carol Fontaine and Michael Jimenez, M.D. The action is before the court on the Association's motion to reargue this court's decision granting summary judgment in favor of the defendants for the reasons set forth in a memorandum of decision filed September 16, 2004.
The action concerns a coverage issue relating to a medical malpractice insurance policy. The issue arises from an underlying medical malpractice action brought by Ms. Fontaine's husband against Dr. Jimenez. Ms. Fontaine made a claim for loss of consortium in that action. Mr. Fontaine's claim for personal injuries against Dr. Jimenez has been settled. Only Ms. Fontaine's consortium claim is pending.
The parties filed cross motions for summary judgment contending that the policy language at issue unambiguously supports their respective interpretation. The parties agree that the material facts involved in the action are not in dispute. The parties only dispute the interpretation of the portion of the policy applicable to the loss of consortium claim.
The Association moves for summary judgment claiming that there is no question of material fact that Ms. Fontaine's claim for the loss of consortium is not covered under the policy. The basis for the Association's claim is their argument asserts in their memorandum in support of the motion that coverage under the policy is limited to "bodily injury," and loss of consortium is not a "bodily injury" within the policy terms and conditions.
Ms. Fontaine opposes the summary judgment motion, and cross moves for summary judgment. Ms. Fontaine asserts that there is no question of material fact that her loss of consortium claim is covered under the policy because she seeks "damages because of . . . bodily injury . . . caused by a medical incident" in accordance with the terms of the applicable coverage section of the policy. Dr. Jimenez filed a motion for summary judgment in which he joined in Ms. Fontaine's motion.
The Association moved to reargue the court's summary judgment decision primarily claiming that the contra proferentum rule of contract construction utilized by the court in its original decision could not be applied against the Association because that entity, a statutorily created guaranty association, did not draft the Policy. The defendants objected to reargument asserting, among other things, that the language at issue clearly and unambiguously provides coverage for the loss of consortium claim and that summary judgment in their favor was properly granted. All parties submitted briefs on the issues. The court granted the motion to reargue (118.00), and heard reargument on November 15, 2004. As a result, the court vacates its prior summary judgment decision (117.00) and reissues its decision in accordance with the present memorandum of decision.
II. SUMMARY JUDGMENT LAW
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." Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004).
"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 . . ." (Citation omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 83 Conn.App. 576, 581, 850 A.2d 1106 (2004).
III. CONNECTICUT INSURANCE GUARANTY ASSOCIATION ACT
PHICO Insurance Company issued the pertinent professional liability policy (the "Policy"). Dr. Jimenez is a named insured under the Policy. The defendants agree that the Policy is true and genuine, and there is no dispute that Dr. Jimenez is insured under the Policy. The Association became obligated under Connecticut law to pay statutorily defined "covered claims" under the Policy as a result of PHICO being declared insolvent by a Pennsylvania court.
"[M]any states have passed laws establishing an organization, the sole purpose of which is to compensate those who have claims against an insurance company which have not been paid because the company is insolvent. Such organizations are commonly referred to as insurance guaranty associations." Annot., 30 A.L.R. 4th 1110, 1114 (1984). The Connecticut legislature created the Association in a 1971 public act that was codified in General Statutes § 38a-836 et seq., entitled "Connecticut Insurance Guaranty Association Act" (the "Act"). "The [A]ssociation was established in order to reimburse, to a limited extent, covered claims against insolvent insurers." Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 439 n. 1, 705 A.2d 1012 (1997). "[T]he purpose of the act is to protect policyholders and claimants" in the event of the insolvency of insurers. Id. 452. In Douchette v. Pomes, 247 Conn. 442, 460, 724 A.2d 481 (1999), the Supreme Court found "helpful" the following words of the Supreme Judicial Court of Massachusetts interpreting that state's version of its similar guaranty act: "[t]he obvious legislative purpose in establishing the [guaranty fund], which is funded by the insurance industry, is to benefit members of the public, individuals and entities . . . which are outside the insurance industry, from losses due to the insolvency of a member of that industry."
"The association was established for the purpose of providing a limited form of protection for policyholders and claimants in the event of insurer insolvency . . . When an insurer is determined to be insolvent under § [38a-838(6)], the association becomes obligated pursuant to § 38a-841, to the extent of covered claims within certain limits . . . In order to be reimbursable by the association, a claim against the association must be encompassed within the definition of a covered claim contained in § [38a-838(5)]." (Citations omitted; internal quotation marks omitted.) Doucette v. Pomes, 247 Conn. 442, 454-55, 724 A.2d 481 (1999). Under General Statutes § 38a-838(5), "[c]overed claim means an unpaid claim . . . which arises out of and is within the coverage and subject to the applicable limits of an insurance policy . . ." (Internal quotation marks omitted.)
The Association's obligation to pay covered claims is limited in certain instances. For example, the Association is only obligated to pay covered claims that are in excess of one hundred dollars and are less than three hundred thousand dollars, except that the Association must pay the full claim arising under a workers' compensation policy. General Statutes § 38a-841(a)(ii).
IV. DISCUSSION
The issue in this insurance contract interpretation case is whether Ms. Fontaine's loss of consortium claim is a "covered claim" within the terms and conditions of the Policy. The relevant coverage section of the Policy provides as follows: "Company . . . agrees with the name insured to pay on behalf of the insured all sums which the insured shall be legally obligated to pay as damages because of (a) bodily injury or property damage to which this insurance applies caused by a medical incident . . ." In the general definitions section, the phrase bodily injury "means injury to the human body, illness or disease sustained by an [sic] person, including death at any time resulting therefrom."
The language of the Policy gives rise to the issue of whether Ms. Fontaine's claim for loss of consortium is one for "damages because of bodily injury" within the meaning of the Policy. Construction of a policy of insurance presents a question of law. Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 700-01, 826 A.2d 107 (2003). "Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy . . . If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally reasonable] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted . . . [T]his rule of construction favorable to the insured extends to exclusion clauses." (Citation omitted; internal quotation marks omitted.) Allstate Insurance Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004), quoting Travelers Ins. Co. v. Namerow, 261 Conn. 784, 796, 807 A.2d 467 (2002).
"Although policy exclusions are strictly construed in favor of the insured . . . the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Citation omitted; internal quotation marks omitted.) Moore v. Continental Casualty Co., 252 Conn. 405, 409 (2000).
Applying the foregoing rules to the facts of the present case and to the language of the subject Policy, and subsequent to reargument, the court concludes that it is clear under the Policy that Ms. Fontaine's loss of consortium claim comes within the coverage for "damages because of . . . bodily injury . . . caused by a medical incident . . ." (Emphasis added.) Further, such an interpretation is consistent with the broad purposes that the Act serves in protecting insureds and claimants in the case, like this one, of an insolvent insurance company.
"A cause of action for loss of consortium does not arise out of bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions." Izzo v. Colonial Penn Insurance Company, 203 Conn. 305, 312, 524 A.2d 641 (1987), citing Hopson v. Saint Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). In this action, the coverage is not limited by the Policy terms to damages paid for the direct bodily injury suffered by Mr. Fontaine. The language at issue does not require that recovery be limited to one who sustained a bodily injury. The court holds, therefore, that there is no question of material fact that Ms. Fontaine's claim for loss of consortium is covered under the terms and conditions of the Policy.
Notwithstanding the Association's contrary argument, the case of Izzo v. Colonial Penn Insurance Company, 203 Conn. 305, 524 A.2d 641 (1987), is not determinative of the issue in this case. The primary issue in Izzo was whether the plaintiff's loss of consortium claim fell within the per person or per occurrence liability limits of the applicable policy.
The Supreme Court, in QSP, Inc. v. Aetna Casualty Surety, Co., 256 Conn. 343, 379-80, 773 A.2d 906 (2001), discussed their decision in the Izzo case as follows: "In Izzo, the husband of a woman injured in an automobile accident sought coverage under a $300,000 `per occurrence' limit of bodily injury coverage for loss of consortium, after his wife recovered $100,000 under the `per person' limit of coverage . . . Denying recovery for the husband, we concluded that it was the wife who could not perform the spousal functions who suffered the bodily injury, not the husband claiming a resultant loss of consortium . . . Even though we considered the loss of consortium a separate cause of action, we held that it was `derivative and inextricably attached to the claim of the injured spouse.' . . . The couple, therefore was limited to the `per person' coverage . . . Izzo, however, dealt with bodily injury coverage, and followed the well settled principle that "damages for loss of consortium . . . are subject to `per person' limitation." (Citations omitted; internal quotation marks omitted.) In reaching its decision, the Izzo court further held that "[a] claim for loss of consortium, although a `personal injury,' is not a `bodily injury' to the claimant." Izzo v. Colonial Penn Ins. Co., supra, 313.
Although it did not deal with the precise issue in this case, Izzo is instructive on the issue of whether the loss of consortium claim in this case falls within the ambit of the policy coverage. In Izzo, the liability limits section of the policy stated that "[t]here are two limits of coverage for Bodily Injury Liability. The amount shown on your Declarations Page for `Each Person' ($100,000) is the most [w]e'll pay for damages because of bodily injury to one person caused by any one occurrence." Izzo v. Colonial Penn Ins. Co., supra, 309. (Emphasis added.) In discussing the limits of liability language, the court noted in dictum that "[t]he plaintiff's loss of consortium claim, therefore, clearly fits within the `per person' limit as it is a loss sustained `because of bodily injury to one person caused by any one occurrence.'" Izzo v. Colonial Penn Ins. Co., supra, 312.
Cases involving insurance policies providing for uninsured motorist benefits lend further persuasive authority for the court's decision on reargument in the present case. Like Izzo, those cases involve policy language nearly identical to the language at issue.
In Jensen v. Aetna Casualty Surety Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90-00110728-S (October 22, 1992, Nigro, J.) ( 7 Conn. L. Rptr. 486), the defendant moved for summary judgment on the loss of consortium count of the complaint arguing that the uninsured motorist statutes or the applicable uninsured motorist policy did not provide for such a claim. The policy provided, in pertinent part, that a person insured for uninsured motorist purposes included "any person for damages that person is entitled to recover because of `bodily injury' to which this coverage applies . . ." In deciding the issue, the court noted that the Izzo court "did not directly address the issue of whether a loss of consortium claim arises because of bodily injury although not itself a claim for bodily injury." The court denied the summary judgment motion in part because "the terms of the policy do not clearly exclude claims by a covered person for loss of consortium . . ." See also Catalina v. General Accident Insurance, Superior Court, judicial district of Waterbury, Docket No. CV-94-109676 (May 16, 1994, Sullivan, J.) ( 11 Conn. L. Rptr. 502) (court concludes that the plaintiff's husband's loss of consortium claim was covered under terms of uninsured motorist policy at issue, which policy contained identical language to Jensen case); Smith v. Amica Mutual Insurance Co., judicial district of Hartford-New Britain at Hartford, Docket No. CV-92-703270, (October 29, 1992, Aurigemma, J.) ( 7 C.S.C.R. 1276) ( 7 Conn. L. Rptr. 539) (court concludes that the plaintiff's wife's loss of consortium claim was covered under terms of uninsured motorist policy at issue, which policy contained identical language to Jensen case).
V. CONCLUSION
In view of the foregoing, the court vacates its decision (117.00) issued on September 16, 2004, and herein grants the motions for summary judgment filed by the defendants, Ms. Fontaine () and Dr. Jimenez (113.00), and denies the plaintiff Association's motion for summary judgment (106.00).
BY THE COURT
THEODORE R. TYMA