Lead Opinion
Opinion
Thе plaintiff, Mario Fiailo, appeals from the judgment of the trial court denying his request to amend his complaint to add bad faith claims after a jury verdict in his favor and granting the motion of the defendant, Allstate Insurance Company, to subtract amounts from the jury verdict, as contemplated by the plaintiffs insurance policy, before rendering judgment. On appeal, the plaintiff claims that the court (1) applied the law erroneously in denying his request to amend his complaint and (2) erred in failing to find an ambiguity in the insurance policy. We affirm in part and reverse in part the judgment of the trial court.
The following facts set forth by the court in its September 23, 2010 memorandum of decision on postver-dict motions are relevant to the plaintiffs appeal. “On July 24, 2006, the plaintiff, Mario Rallo, was employed by Eagle Hill School in Fairfield as a maintenance worker. While he was engaged in yard work at the campus of Eagle Hill School he was struck by an automobile operated by Michelle Igesias and sustained injuries. Igesias was covered by an automobile liability insurance policy with $20,000 in policy limits. The plaintiff was paid the entire $20,000 under Igesias’ policy and brought this action against [the] defendant, Allstate Insurance Company, pursuant to the underinsured motorists provision of a policy issued to the plaintiff by the defendant.
“The defendant filed an answer and special defenses claiming that its liability under the policy was limited to $50,000 and that, pursuant to the terms of the policy, it was entitled to credits equal to the amounts received by the plaintiff from Igesias and the amounts of benefits paid or payable by workers’ compensation. A jury trial was conducted from May 25 to May 27, 2010, in Bridgeport Superior Court. On May 27, 2010, the jury returned a verdict awarding the plaintiff [$95,000, which comprised] $30,287.14 in economic damages and $64,712.86 in noneconomic damages.”
The jury had been instructed that its “only task [was] to determine whether the рlaintiff sustained injuries as a result of the accident and, if so, what amount of money will fully and fairly compensate the plaintiff.” The court found that “the parties had agreed to reserve all issues relating to reductions in underinsured motorists coverage under the provisions of [the] policy, including those which might otherwise [have] been submitted to the jury, for postverdict determination by the court.”
I
The plaintiff first claims that the court erred in denying his request to amend his complaint to allege bad faith on the part of the insurer. He asserts two related grounds for his claim: the court erred (1) in declining to allow new claims to be alleged after the jury returned its verdict and was dismissed, and (2) in predicting that his.bad faith claims could be asserted in a separate action after the conclusion of the underlying action, if the claims were truly unknown prior to or during trial. We disagree.
The following additional facts are relevant. On June 11, 2010, the plaintiff filed a request for leave to amend his complaint “to conform [to] the evidence produced and discovered during trial and reflect the misconduct of the [defendant, Allstate by adding counts for breach of the covenant of good faith, breach of contract, violations of CUIPA and violations of CUTPA.” In the five count proposed amended complaint, count one was identical to the original complaint. In counts two through five, the plaintiff claimed, inter alia, that the defendant “failed to investigate the value of the claim, failed to make a good faith effort to settle this claim, failed to disclose the basis for [its] refusal to negotiate the claim, and improperly refused to settle within the policy limits.”
On June 22, 2010, the court heard argument on the request. Although the plaintiff asserted in his request to amend his complaint that the proposed amendment was filed, inter alia, so that the pleadings conformed to the evidence at trial, the court stated that the amended complaint set forth a new action that relied on “facts that were not shown at trial.” The plaintiff acknowledged that the court was correct. The plaintiff argued that he was required, however, to raise the new claims in the present case because “the Supreme Court has said in multiple decisions . . . once a judgment has entered I’m estopped from pursuing a further action because all claims that could have been brought and . . . the facts underlying them didn’t arise until the trial began . . . .” The plaintiff stated that he “had some idea that [the misconduct that formed the basis of his additional claims] may have been occurring during the trial . . . .” The court stated: “I have trouble seeing your right to amend the complaint for . . . making a claim of fully defending themselves, albeit perhaps not successfully, who knows — I don’t see that that amounts to bad faith and reverts back. I just don’t seе it. In any event, I think you’re going to have to provide me with better authority before I would consider allowing the— a new case to be built based upon a postjudgment motion to
At the hearing on July 22, 2010, the plaintiff cited Powell v. Infinity Ins. Co.,
We first set forth the applicable standard of review. “A trial court’s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An apрellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiffs] burden ... to demonstrate that the trial court clearly abused its discretion. ... A trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof. . . . Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of
The plaintiff argues that the court erred in determining that he could not amend his complaint after the jury verdict and before judgment was rendered on the verdict. Both parties agree that the standard of review is abuse of discretion. In light of the facts recounted previously, we do not conclude that the court abused its discretion in denying the plaintiffs request.
The court repeatedly requested authority from the plaintiff in support of his position and found that none was persuasive. The court examined Powell and opined that the plaintiff likely would not be barred from bringing a separate action if facts supporting bad faith were not known to him so that he could have amended his complaint in a timely manner. In Powell, our Supreme Court held that res judicata barred the plaintiffs’ action alleging bad faith, breach of contract, violation of CUTPA and violation of CUIPA brought one year after judgment was rendered in an action against their insurer asserting claims brought pursuant to the uninsured motorist coverage of the automobile insurance policy. Powell v. Infinity Ins. Co., supra,
An analogous situation arose in the present case. The first action alleged a breach of contract by failing to pay the damages due, which, were it not for an underinsured scenario, would have been paid by the tortfeasor’s insurer. By agreement, the court tried the аmount of the tortfeasor’s liability to a jury, reserving the issue of deductions called for in the policy for later determination. Only after the insurer moved to reduce the judgment to nothing did the plaintiff seek to amend his complaint to allege bad faith. The facts alleged included the defendant’s having undertaken “no discovery other than filing standard interrogatories,” failure “to conduct a reasonable investigation,” failure “to make any offer to settle this claim until immediately prior to trial,” a pattern of unscrupulous business practices and a very low settlement offer just prior to trial. The plaintiff alleges that these acts occurred despite his expressed willingness to settle within the policy limits. These are the same kinds of facts that the court in Powell held were sufficiently known before trial to have been timely alleged.
The court in the present case, then, faced the discretionary decision of how to proceed when the plaintiff attempted to amend the complaint after a jury verdict but before the rendering of judgment. Delay, of coruse, was a significant factor weighing against allowing the amendment. The primary issue in the circumstances of
The merits of the bad faith claims either could be reached or could not be reached in a second trial. If the merits could be reached, then the plaintiff would not be seriously prejudiced by the denial of the request for leave to amend in the first action, and there would be no unfairness at all. If the merits could not be reached in a second action, because of Powell, then serious unfairness would arise only if the plaintiff in fact had been unable to raise the claim in a more timely manner. The court in Powell noted that the bad faith claims stеmmed from the same transaction as the straightforward uninsured/underinsured motorist claim; id., 604-605; both arose from the defendant’s refusal to pay under the policy “despite its contractual obligations.” Id., 606; see also Duhaime v. American Reserve Life Ins. Co.,
The trial court in the present case impliedly recоgnized that if the claims were subject to being barred in a second action on res judicata grounds, then they should have been seasonably raised in the first action. If the claims were not raised in a timely manner when they should have been so raised, then there is no unfair prejudice in disallowing the amendment. If the claims could not have been timely raised, then they will not be barred, at least by the denial of the request for leave to amend the complaint, in a second action. It will be for the trial court in the second action to decide whether res judicata is a bar; we hold only that the trial court in this case did not abuse its discretion.
The plaintiff also claims that the court erred in failing to find an ambiguity in the language of the insurance policy, including the declarations page.
The following additional facts are relevant. The plaintiffs automobile insurance policy was introduced as an exhibit at a postverdict hearing. Each declaration page for each of the three vehicles for which the plaintiff was insured included a column entitled “COVERAGE.” Under that column, one of the rows read in its entirety, “Uninsured/Underinsured Motorists,” and reflected a policy limit of $50,000 per person and $100,000 per accident.
Part V of the policy was entitled “Uninsured Motorist Insurance Underinsured Motorist Insurance Coverage SS.” It provided in relevant part: “If a premium is shown on the declarations page for Coverage SS, Uninsured Motorist Insurance and Underinsured Motorist Insurance, we will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto or underinsured auto because of bodily injury sustained by an insured person.” Part V additionally provided: “The limits of this coverage will be reduced by: 1. all amounts paid by or on behalf of the owner or operator of the uninsured auto or underinsured auto .... 2. all amounts paid or payable under any worker’s compensation law . . . .” (Emphasis added.)
Part VI of the policy was entitled “Uninsured Motorist Insurance Underinsured Motorist Conversion Insurance Coverage SC.” It provided in relevant part: “If a premium is shown on the declarations page for Coverage SC, Uninsured Motorist Insurance and Underin-sured Motorist Conversion Insurance, we will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto or underinsured auto because of bodily injury sustained by an insured person.” Part VI additionally provided: “In the case of accidents involving a legally hable underinsured motorist, the damages payable will be reduced by: 1. all amounts paid by or on behalf of the owner or operator of the underinsured auto .... 2. all amounts paid or payable under any worker’s compensation law . . . .” (Emphasis added.)
Under part V of the policy, the limits of the covеrage are reduced by the amount
The court rejected the plaintiffs argument that an ambiguity existed in the policy because of the failure of the declarations page to specify code “SS” or code “SC.” The court found: “There is nothing on the dеclaration^] page to suggest that conversion coverage was being provided by the defendant. Under these circumstances, the court finds no ambiguity in the policy and finds that the plaintiff is entitled to coverage afforded under part V of the policy and [is] not entitled to coverage under part VI of the policy.”
We first set forth the applicable standard of review. “[A]n insurance policy is a contract that is construed to effectuate the intent of the parties as expressed by their words and purposes. . . . [Unambiguous terms are to be given their plain and ordinary meaning. . . . As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. . . . The determination of whether an insurance policy is ambiguous is a matter of law for the court to decide.” (Citations omitted; internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co.,
The plaintiff argues that, because the declarations page failed to state “Coverage SS” or “Coverage SC,” the policy is ambiguous and should be construed in his favor. The policy provides: “A Coverage applies only when a premium for it is shown on the declarations page.” Both part V and part VI of the policy provide that the insurer will pay damages “[i]f a premium is shown on the declarations page for Coverage [SS in part V or SC in part VI].” The declarations page expressly states coverage for “Uninsured/Underinsured Motorists.” Part V is entitled “Uninsured Motorist Insurance Underinsured Motorist Insurance Coverage SS.” Part VI is entitled “Uninsured Motorist Insurance Underinsured Motorist Conversion Insurance Coverage SC.” Applying a layperson standard, a reader cannot clearly discern tо which type of insurance “Uninsured/ Underinsured Motorists” refers. The only three words that appear on the declarations page are “Uninsured/ Underinsured Motorists,” all of which appear in both coverage options. The language used on the declarations page is reasonably susceptible to more than one reading, i.e., “Uninsured/Underinsured Motorists” could refer either to uninsured/underinsured motorist insurance coverage or uninsured/underinsured motorist conversion insurance coverage.
Having found an ambiguity in the language, we next determine how to resolve it. As. our Supreme Court has stated, “Ordinarily, if an ambiguity arises that cannot be resolved by examining the parties’ intentions . . . the ambiguous language should be construed in accordance with the reasonable expectations of the insured when he entered into the contract. . . . Courts in such situations often apply the contra proferentem, rule and interpret apolicy against the insurer.” (Citation omitted; internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 255 Conn. 306. In the present case, however, the issue of whether the plaintiff purchased standard uninsured/ underinsured motorist coverage or uninsured/underin-sured motorist conversion coverage presents a question of historical fact, rather than one of contract construction. Accordingly, the canon of contra proferentem
The determination of what policy was bought may be resolved by examining extrinsic evidence. “If the policy is ambiguous, extrinsic evidence may be introduced to support a particular interpretation. ... If the extrinsic evidence presents issues of credibility or a choice among reasonable inferences, the decision on the intent of the parties is a job for the trier of fact.” (Citation omitted; internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra,
Under different circumstances, our Supreme Court has examined extrinsic evidence in resolving an ambiguity in an insurance policy. In Connecticut Ins. Guaranty Assn. v. Fontaine, supra,
In Connecticut Ins. Guaranty Assn., the issue was the determination of the meaning of a particular phrase in the policy language, whereas the issue before this court in the present case is the determination of a historical fact, to wit, which type of uninsured/underinsured motorist insurance coverage the plaintiff selected for purchase. Although this distinction, and the fact that the case in Connecticut Ins. Guaranty Assn, was before the court on a set of stipulated facts, distinguishes the two cases, the framing of the analysis upon determining that there was an ambiguity is instructive. The court in Connecticut Ins. Guaranty Assn, wrote: “Thus, having concluded that the relevant policy language is ambiguous, we ordinarily would be free to consider extrinsic evidence, although [i]f the extrinsic evidence presents issues of credibility or a choice among reasonable inferences, the decision on the intent of the parties is a job for the trier of fact. ” (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Fontaine, supra,
Our search of the case law has not yielded cases within our jurisdiction that have addressed the issue of resolving an ambiguity as to which particular option was selected for purchase in an insurance policy.
In General Star Indemnity Co. v. Custom Editions Upholstery Corp.,
The court began its analysis by noting: “An insurance contract, like any other, must be construed to effect the intent of the parties as expressed by their words and purposes.” Id. The court stated that, in the event of an ambiguity, the parties may introduce extrinsic evidence. Id. “If the extrinsic evidence does not yield a conclusive answer as to the parties’ intent, it is appropriate for a court to resort to other rules of construction, including the contra-insurer rule, which states that any ambiguity in an insurance policy should be resolved in favоr of the insured.” (Internal quotation marks omitted.) Id., 655. The court concluded that the policy was ambiguous. The use of the word “Contents” on the declarations page was reasonably susceptible to more than one meaning, i.e., it could encompass both “Business Personal Property” and “Personal Property of Others,” or it could not encompass both types of coverage because the declarations page did not itemize them separately. (Internal quotation marks omitted.) Id. The court then examined the plaintiffs extrinsic evidence— an interview with the owner of Custom Editions, the policy application and sworn testimony of its underwriter — and concluded that such evidence did not eliminate the ambiguity. Id. “When extrinsic evidence fails to resolve the ambiguity in the policy, the contra-insurer rule — i.e., all ambiguities in apolicy must be inteipreted against the insurer — must be applied, and the ambiguous clause must be interpreted in fаvor of the insured.” Id., 656. Accordingly, the court concluded that the policy included coverage for “Personal Property of Others.” (Internal quotation marks omitted.) Id.; but see Simon v. Continental Ins. Co.,
In East Troy v. St. Paul Fire & Marine Ins. Co., Wisconsin Court of Appeals, Docket No. 96-2501 (August 13, 1997) (unpublished), the defendant issued umbrella liability policies to the “Township of East Troy-Water Distribution Department.” The plaintiff sought defense and indemnification for its remediation work at a landfill site unrelated to water distribution. The trial court concluded that the coverage under the insurance policies was limited to water distribution operations and did not cover the work at the landfill site, and, accordingly, granted the defendant’s motion for summary judgment. The appellate court affirmed. It concluded that the identity of the named insured was ambiguous. The court explained that where there is an ambiguity in a contract, it may consider extrinsic evidence of the parties’ intent. See Grange Mutual Casualty Co. v. Snipes,
As in East Troy, the issue in the present case called for a factual determination rather than a construction of the terms of the policy drafted by the insurer. The court in East Troy concluded that the trial court was properly assisted by extrinsic evidence in determining the identity of the named insured. In the present case, extrinsic evidence regarding the circumstances of the plaintiff’s selection of uninsured/underinsured motorist coverage wоuld likely be helpful in resolving the ambiguity as to which variety of coverage he chose.
The court here did not make a finding regarding the parties’ intentions other than its conclusion that the policy and declarations page were unambiguous. As discussed previously, we conclude that there is an ambiguity. Accordingly, we conclude that the court should engage in fact-finding as to the intent of the parties; see M. Taylor, K. Dowd & B. Levesque, supra, § 2-4:2 (“[a] finding of ambiguity permits the use of extrinsic evidence that
The judgment is reversed only as to the granting of the motion to reduce the jury verdict and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.
In this opinion ALVORD, J., concurred.
Notes
The plaintiff maintains that there was a bifurcated trial in the present case. The court appears to have recognized that it was not a bifurcated trial, and, from the record, the action appears to have been tried to a jury, and certain issues were reserved for postverdict motions.
We presume that the court considered the relevant factors. See Przekopski v. Zoning Board of Appeals,
We note also that our Supreme Court has declined to find an abuse of discretion in the denial of a plaintiffs motion to amend his complaint brought eight days after a verdict in a trial in which the only issue was damages. Leone v. Knighton,
This court has also declined to find an abuse of discretion in a trial court’s decision to permit an amendment to the complaint after the granting of a directed verdict. Burton v. Stamford,
The declarations page “is regarded as part of the insurance contract . . . and contains the terms most likely to have been requested by the insured . . . .” 16 S. Williston, Contracts (4th Ed. Lord 2000) § 49:25, p. 139.
The policy provided: “The coverage limit shown on the Policy Declarations for:
“1. ‘each person’ is the most that we will pay for damages arising out of bodily ipjury to one person in any one motor vehicle accident. . . .
“2. ‘each accident’ is the most that we will pay for damages arising out of bodily injury to two or more persons in any one motor vehicle accident.”
In order to reсover uninsured/underinsured benefits, of course, the tort-feasor’s liability policy must be exhausted.
In support of its position, the defendant relies on Herrick v. Bordonaro, Superior Court, judicial district of Litchfield, Docket No. CV-06-5001420-S (October 17, 2008) (
“Contra proferentem” is a principle of construction according to wldch ambiguities will be construed against the party who drafted the document. See 11 S. Williston, Contracts (4th Ed. Lord 1999) § 32:12.
In Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra,
See footnote 6 of this opinion. The cases cited by the defendant concluded that there was not an ambiguity.
The trial court in the present case concluded that there was no ambiguity, although it did hear extrinsic evidence. The court heard the testimony of an employee of the defendant regarding the policy language and the defendant’s internal procedures used to produce the language regarding coverages reflected on the declarations page. Her testimony implied that, according to the defendant, the language of the declarations page circumstantially indicated that the plaintiff did not have conversion coverage. No other evidence, such as a copy of the application, was submitted.
The concurrence suggests that on remand, the burden of proof should be shifted to the defendant. We respectfully disagree. On the facts of this case, of course, if no evidence other than the policy, including the declarations page, is introduced on remand, then, consonant with the authority previously cited, the plaintiff presumably would prevail by the application of contra proferentem. The plaintiff would prevail, however, not because the burden of proof has been shifted but rather because it has been satisfied.
Concurrence Opinion
concurring. I agree with and join the well reasoned opinion of the majority, with two minor linguistic exceptions, which I will discuss. I write separately only to give the trial court some guidance for its determinations on remand.
First, I take issue with the following language in part II of the majority opinion: “The issue in the present case does not require an interpretation of a policy term that is written by the insurer . . . .” (Citation omitted.) I also take issue with the following similar language in part II of the majority opinion: “There is a fundamental distinction between deciding what policy language means, on the one hand, and deciding, on the other hand, whether a particular policy option was bought.” That may or may not be so. In a case such as this, if there is no persuasive extrinsic evidence that resolves the question of what kind of coverage the plaintiff, Mario Fiallo, purchased, in my view “what [the] policy language means” will determine what policy was bought. In other words, the question is not “what policy option was bought,” but what coverage wаs provided by the policy that the plaintiff bought, and that question has to be decided by, first, deciding whether the policy language was ambiguous and, second, if so, whether there is persuasive extrinsic evidence that overcomes the contra proferentem rule.
This brings me to what I regard as some further guidance for the trial court on the remand. In my view, the defendant, Allstate Insurance Company, should have the burden of proof on the question of whether the coverage was straight uninsured and underinsured, as the defendant claims, or conversion coverage, as the plaintiff claims. This is because, consistent with the policy underlying the contra proferentem rule, the defendant had the best opportunity to make that clear in its policy papers, including the application. Furthermore, in the trial court, the defendant had the opportunity to bring forth extrinsic evidence to show the parties’ intentions, and the only evidencе that it produced was the testimony of an underwriter, which I will discuss, and which did not shed any persuasive light on the factual issue involved. This means that if the defendant does not carry its burden of proof on this issue, the court should apply the contra proferen-tem rule and, consistent with the majority’s conclusion that the policy is ambiguous, construe it as a matter of the parties’ intentions against the defendant and in favor of the plaintiff.
In the present case, the only evidence adduced by the defendant in the postverdict hearing held by the court on the coverage issue was testimony by an underwriter for the defendant regarding the function and meaning — as an internal coding matter — of the terms “Coverage SS” and “Coverage SC” generally within the defendant company. Indeed, she did not even relate that testimony to the specific policy purchased by the plaintiff. My point here is that extrinsic evidence such as this would be wholly unhelpful in resolving the question of what coverage the plaintiff purchased from the defendant. Put another way, no reasonable fact finder could rely on it to construe the meaning of the ambiguous language of the policy. Only evidence communicated to the plaintiff and bearing on what the plaintiff, as a layman unschooled in the inner workings of the defendant and its coding operations would understand, would be persuasive to resolve the factual question remaining to be determined on the remand.