222 Conn. 631 | Conn. | 1992
Lead Opinion
This is an appeal from the judgment of the trial court granting, in part, the application of the United States Fidelity and Guaranty Company (USF&G) to vacate an arbitration award, and denying the application of Norman Mass, as executor of the estate of Sara Louise Mass and on behalf of his minor children Daniel and Jessica (Mass), to vacate in part or modify the arbitration award. We affirm the judgment of the trial court.
Most of the facts essential to the disposition of this appeal were stipulated to by the parties. On April 18, 1988, an automobile operated by Sara Louise Mass, in which her two minor children, Daniel Mass and Jessica Mass, were passengers, was struck broadside on a residential street in Fairfield by an automobile driven by Christopher Flynn, who was intoxicated, while traveling at a speed in excess of fifty miles per hour. The accident resulted in the death of Sara Mass and in personal injuries to Daniel and Jessica Mass. On and prior to April 18,1988, USF&G and Norman Mass, the husband of Sara and father of Daniel and Jessica, were parties to an automobile insurance contract. The contract, which covered the Masses’ two automobiles, provided uninsured motorist coverage
On November 1, 1989, a panel of three arbitrators rendered a decision regarding the amount of insurance coverage available under the Masses’ policies with USF&G and the amount of damages suffered by the estate of Sara Mass and the Masses’ two minor children. The arbitrators ruled that $2,000,000 was available to the claimants: $500,000 on each of the Masses’ two automobiles under the automobile insurance contract plus $1,000,000 under the personal excess policy. The arbitrators determined that the damages suffered were as follows: $1,700,000 by the estate of Sara Mass; $50,000 by Daniel Mass; and $50,000 by Jessica Mass.
Both USF&G and Mass applied to the trial court to vacate the arbitration award. In its application, USF&G asserted that the personal excess policy issued to the Masses did not, by its terms and conditions, provide uninsured motorist coverage, and, further, that USF&G was not obligated under General Statutes § 38-175c to provide such coverage.
The trial court, relying on Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 569 A.2d 544 (1990), concluded that the personal excess policy did not extend the Masses’ underlying uninsured motorist coverage because it (1) required that the insured be responsible for maintaining uninsured motorist coverage, and (2) lacked any agreement requiring USF&G to provide excess uninsured motorist coverage. The trial court therefore granted USF&G’s application to vacate the arbitrators’ award to the extent that the award included the personal excess policy. The trial court did not find the miscalculation of damages that Mass had claimed, however, and, therefore, denied Mass’ application. This appeal to the Appellate Court followed. We transferred the appeal to ourselves pursuant to Practice Book § 4023.
On appeal, Mass claims that the trial court improperly failed to conclude that: (1) the personal excess policy provided uninsured motorist coverage; (2) $3,000,000 in uninsured motorist coverage was available under the two policies with USF&G; and (3) the estate of Sara Mass was entitled to at least $3,000,000 in damages. USF&G presents only one issue on appeal, which we shall address in conjunction with Mass’ first claim: whether General Statutes § 38-175c requires that the personal excess policy that USF&G
Mass first claims that the trial court improperly failed to conclude that the personal excess policy issued by USF&G provided uninsured motorist coverage. Mass argues that the trial court misapplied this court’s holding in Cohn v. Pacific Employers Ins. Co., supra, because the personal excess policy in this case is a liability policy, not an indemnity policy, as was the policy at issue in Cohn. Mass contends that since the personal excess policy covers liability for damages arising out of the operation of an automobile,
In support of his argument, Mass places substantial reliance on the distinction between an indemnity policy and a liability policy that this court made in Cohn. In that case, we affirmed the conclusion of the trial court
Unlike the policy involved in Cohn, the personal excess policy issued to the Masses by USF&G did not require that the insured’s liability be discharged before a cause of action against the insurer would accrue. Id., 547. The policy provided that USF&G would pay damages on behalf of the insured, subject to certain exclusions. Uninsured motorist coverage was not specified in the list of exclusions.
Pursuant to § 38-175c (a) (2), an insurer is required to provide an insured with uninsured motorist coverage equal to the amount of automobile liability coverage purchased unless the insured elects a lesser amount in writing, although in no event may he elect less than the statutory minimum specified in General Statutes § 14-112 (a).
In discussing the relationship of uninsured motorist coverage to excess (or umbrella) policies, one leading commentator has stated: “Umbrella policies serve an important function in the industry. In this day of uncommon, but possible, enormous verdicts, they pick up this exceptional hazard at a small premium. Assuming one’s automobile and homeowner’s policies have
We are persuaded that excess or umbrella policies, such as the policy issued to the Masses by USF&G, serve a purpose distinct from that served by policies that exclusively cover liability from damages arising out of the ownership, maintenance or operation of an automobile. While the Masses’ personal excess policy provides, among other coverages, coverage for automobile liability, this does not convert it into an “automobile liability policy” within the meaning of § 38-175c. Rather, the language of the personal excess policy indicates that it was intended as “excess insurance designed solely to protect [the Masses] from the infrequent occurrence of catastrophic judgments against [them].” (Emphasis added.) Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960, 962 (Ala. 1978).
The personal excess policy issued to the Masses by USF&G did not expressly refer to uninsured motorist coverage. In addition, the record is devoid of evidence that the parties intended to include uninsured motor
Mass argues, in essence, that uninsured motorist coverage should be provided under the personal excess policy for the premium the Masses paid for such coverage under the primary automobile insurance contract only. Although § 38-175e does not prohibit such a result, we decline to read it into the policy when the language of the policy does not clearly indicate an intent to pro
Mass refers us to certain decisions in jurisdictions in which the courts have concluded that excess or umbrella policies are automobile liability policies that must provide uninsured motorist coverage. See, e.g., Aetna Casualty & Surety Co. v. Green, 327 So. 2d 65 (Fla. App.), cert. denied, 336 So. 2d 1179 (Fla. 1976); Southern American Ins. Co. v. Dobson, 441 So. 2d 1185 (La. 1983); Duriak v. Globe American Casualty Co., 28 Ohio St. 3d 70, 502 N.E.2d 620 (1986); Cincinnati Ins. Co. v. Siemens, 16 Ohio App. 3d 129, 474 N.E.2d 655 (1984). Mass argues that this court should adopt the reasoning of these cases because the applicable uninsured motorist statutes are similar to § 38-175c in that they require an insurer to provide uninsured motorist coverage in amounts equal to liability coverage. In other jurisdictions that have considered whether excess policies must provide uninsured motorist coverage pursuant to statute, however, courts have answered the question in the negative. See O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1029 (3d Cir. 1981); Trinity Universal Ins. Co. v. Metzger, supra; Hartbarger v. Country Mutual Ins. Co., supra; United Services Automobile Assn. v. Wilkinson, 132 N.H. 439, 569 A.2d 749 (1989); Matarasso v. Continental Casualty Co.,
In Matarasso v. Continental Casualty Co., supra, the insured sought uninsured motorist coverage under a “Commercial Umbrella Liability Policy” issued by the defendant insurance company. The umbrella policy protected the insured against claims by third parties in excess of the total applicable limits of liability of certain underlying liability policies, including an automobile liability policy. The umbrella policy, which incorporated
Trinity Universal Ins. Co. v. Metzger, supra, involved facts similar to those presented in Matarasso. In Trinity Universal Ins. Co., the insured’s executor sought uninsured motorist coverage under a “Personal Excess Umbrella Policy” that covered “ 'ultimate net loss in excess of the underlying limit which the insured shall become legally obligated to pay as damages because of personal injury or property damage.’ ” Id., 961. The
In O’Hanlon v. Hartford Accident & Indemnity Co., supra, the plaintiff sought reformation of an umbrella policy, denominated a “Personal Catastrophe Plan,” which included automobile liability coverage up to the
The reasoning of the courts in Matarasso, Trinity Universal Ins. Co. and O’Hanlon applies with equal force to the present case. The personal excess policy that the Masses purchased from USF&G would not have existed but for the underlying primary insurance policies listed in the declarations, including the automobile insurance contract. The underlying automobile insurance contract, which complied with the provisions of § 38-175c, provided the plaintiffs with all of the benefits accorded them pursuant to the statute.
Mass contends that the policy behind § 38-175c is “to ensure that insureds receive more than the bare minimum of [uninsured motorist] coverage in recognition of the often catastrophic consequences of automobile collisions and the gross inadequacy of statutory minimum coverages.” While we do not disagree with this contention, we believe that this policy is adequately served by the conclusion we reach in this case. The purpose of § 38-175c is to compensate an insured to the same extent as he would have been if he had been injured by a motorist carrying liability insurance equal to the coverage carried by the insured, unless the insured has elected in writing uninsured motorist coverage in an amount less than his liability coverage. In the present case, it is undisputed that Daniel and Jessica Mass and the estate of Sara Mass were compensated in an amount equal to the liability limits under the Masses’ automobile insurance contract with USF&G.
USF&G also points us to § 38-175a-4 of the Regulations of Connecticut State Agencies in support of its argument that it was not required to provide uninsured motorist coverage to the Masses under the personal excess policy. Pursuant to General Statutes § 38-175a, the insurance commissioner has the authority to enact regulations governing uninsured motorist coverage. In enacting such regulations, however, the commissioner must effectuate the purpose and intent of the uninsured motorist statute. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 196, 530 A.2d 171 (1987). In accordance with his statutory authority, the commissioner has promulgated §§ 38-175a-1 through 38-175a-9 of the Regulations of Connecticut State Agencies, which define minimum provisions to be included in automobile liability insurance policies, including uninsured motorist coverage. Section 38-175a-4, entitled “Exceptions,” provides in relevant part: “These regulations do not apply to the insurance afforded under any policy . . . if the policy contains an underlying insurance requirement . . . .” (Emphasis added.)
Mass argues that § 38-175a-4 is not valid because it conflicts with the purpose and intent of General Stat
Because the personal excess policy issued by USF&G to Norman and Sara Mass is not an automobile liability policy within the meaning of § 38-175c, the trial court properly concluded that the statute did not require the policy to provide uninsured motorist coverage. Therefore, the trial court properly determined that the total amount of uninsured motorist coverage available to the estate of Sara Mass and to Daniel and Jessica Mass was $1,000,000, pursuant to the automobile insurance contract. Our determination regarding this first claim disposes of Mass’ second claim that $3,000,000 in uninsured motorist coverage was available under the personal excess policy. In addition,
The judgment is affirmed.
In this opinion Shea, Covello and Borden, Js., concurred.
In this opinion, the term uninsured motorist coverage encompasses underinsured motorist coverage as well.
In 1991, General Statutes § 38-175a et seq. was recodified as § 38a-334 et seq. We shall refer herein to the former statutory section numbers, cross-referencing the new section numbers where appropriate. General Statutes § 38-175c (now § 38a-336) provides: “(a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured. motor vehi
“(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,198k, shall provide uninsured 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 the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section lk-U2. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
“(b) (1) 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.
“(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” (Emphasis added.)
Mass points to the following definition of “automobile liability insurance,” provided in Webster’s Third New International Dictionary, which this court adopted in Simonette v. Great American Ins. Co., 165 Conn. 466, 470, 338 A.2d 453 (1973): “ ‘[Insurance against loss from or legal liability for damages arising out of ownership, maintenance, or operation of a motor vehicle.’ ”
The relevant language of the policy, which was denominated an “Excess Blanket Catastrophe Liability Policy,” provided that the defendant insurer “ ‘will indemnify the Insured for ultimate net loss in excess of the retained limit hereinafter stated which the Insured shall become legally obligated to pay as damages because of A. personal injury or B. property damage or C. advertising injury ....’” (Emphasis omitted.) Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 542-43, 569 A.2d 544 (1990).
In dicta, however, this court stated: “To the extent that there may be similarities in the environment of underlying automobile policies vis-a-vis excess blanket catastrophe liability policies, we conclude that the term automobile liability policy as referred to in [General Statutes] § 38-175c includes only those policies that extend underlying coverage before the operation of any indemnity policy that might otherwise exist. ’ ’ Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 547-48, 569 A.2d 544 (1990).
The parties also stipulated that the Masses had never requested, in writing or otherwise, a reduction in their uninsured motorist coverage from USF&G.
The declarations also provided that the insured shall maintain primary insurance for personal liability with limits of $100,000 per occurrence. “Primary insurance” is defined in the policy as “insurance collectible by the insured which covers liability for personal injury or property damage.”
General Statutes § 14-112 (a) provides in pertinent part: “To entitle any person to receive or retain a motor vehicle operator’s license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated any of the provisions of section 14-222, section 14-224 or subsection (a) of section 14-227a or any similar provision of the laws of any other state or any territory, or who has been convicted of, or has forfeited any bond taken for appearance for, or has received a suspended judgment or sentence for, a violation of any of said provisions, or who has been held or found criminally responsible in connection with any motor vehicle accident resulting in the death of any person, or who has a record on file with the commissioner which is sufficient, in the opinion of the commissioner, to require evidence of financial responsibility for the reasonable protection of other persons, the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars
As one commentator has noted, to conclude that excess or umbrella policies are required to provide uninsured motorist coverage pursuant to statute could result in “[s]uch [excess or umbrella] coverage being withdrawn from potential insureds or in premium rates being raised so substantially that they will become priced out of the range of most buyers.” 8C J. & J. Appleman, Insurance Law and Practice (1981) § 5071.65, p. 108.
An insurance contract whose terms are ambiguous must be construed in favor of the insured. Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 513, 442 A.2d 920 (1982). Although this rule of construction extends to exclusion clauses; id., 514; “[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.” (Internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 584, 573 A.2d 699 (1990). In the present case, where the personal excess policy did not refer to uninsured motorist coverage, to construe the policy to provide uninsured motorist coverage on the basis that such coverage was not expressly excluded would be to “ ‘read into the insurance contract that which is not there.’ ” Id., 591.
The New Hampshire statute at issue in United Services Automobile Assn. v. Wilkinson, 132 N.H. 439, 448, 569 A.2d 749 (1989), provides that “ ‘[w]hen an insured elects to purchase liability insurance in an amount greater than the minimum coverage required by [the statute], his uninsured motorist coverage shall automatically be equal to the liability coverage elected.’ ” Unlike General Statutes § 38-175c, the New Hampshire statute contains no waiver provision under which an insured may elect coverage less than his liability limits. Id.
We note that one of the decisions relied on by Mass, Aetna Casualty & Surety Co. v. Green, 327 So. 2d 65 (Fla. App.), cert. denied, 336 So. 2d (Fla. 1976), is criticized in 8C J. & J. Appleman, Insurance Law and Practice (1981) § 5071.65. Furthermore, the Louisiana Supreme Court concluded that the state’s uninsured motorist statute applied to excess or umbrella policies only after a rehearing, and three justices dissented for the reasons assigned in the majority opinion on the original hearing. Southern AmeriDobson, 441 So. 2d 1185 (La. 1983). That court’s initial decision followed the reasoning of the cases relied on by USF&G, especially Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960 (Ala. 1978), and Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 437 N.E.2d 691 (1982).
The relevant Alabama statute provided in pertinent part: “ ‘No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state . . . unless coverage is provided therein or supplemental thereto . . . under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder . . . from owners or operators of uninsured vehicles . . . provided, that the named insured shall have the right to reject such coverage . ...' Tit. 36, § 74(62a), Code of Ala. 1940, Recompiled 1958.” Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960, 961 (Ala. 1978).
The Delaware statute, Del. Code Ann. tit. 18, § 3902, as amended, provided in relevant part: “(a) No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any such vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or hit-and-run motor vehicles for bodily injury, sickness or disease, including death, or personal property damage resulting from the ownership, maintenance or use of such uninsured or hit-and-run motor vehicle. Except, that no such coverage shall be required in or supplemental to a policy where rejected in writing, on a form furnished by the insurer describing the coverage being rejected, by an insured named therein, or upon any renewal of such policy unless the coverage is then requested in writing by the named insured. The coverage herein required may be referred to as ‘uninsured vehicle coverage.’
“(b) The amount of coverage to be so provided shall not be less than the minimum limits for bodily injury, death and property damage liability insurance provided for under the motorist financial responsibility laws of this State. The coverage for property damage shall be subject to a $250 deductible for property damage arising out of any 1 accident unless the insurer and the insured agree in writing to a different deductible. Each insured shall be offered the option to purchase additional coverage for personal injury or death up to a limit of $300,000, but not to exceed the limits for personal injury set forth in the basic policy.” See O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1021 n.2 (3d Cir. 1981).
USF&G paid the estate $1,000,000, which represents the stacked total of $500,000 on each of the two automobiles covered under the Masses’ primary automobile insurance contract.
We note that this same reasoning obtains in states whose statutes provide for uninsured motorist coverage equal to the minimum amount required by the state financial responsibility law. See, e.g., Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 437 N.E.2d 691 (1982). We conclude, therefore, that the distinction that Mass attempts to draw between statutes that provide for uninsured motorist coverage equal to liability limits and those that provide for only the minimum amount required by law is not dispositive of the question presented.
Mass conceded at oral argument, however, that if this court upheld the validity of the regulation, it would apply to the personal excess policy issued by USF&G.
Dissenting Opinion
dissenting. I disagree with the majority’s holding that excess policies are not “automobile liability policies” for the purpose of the uninsured and underinsured motorist coverage requirements of General Statutes § 38-175C.
In this case, the majority concedes, as it must, that the excess policy is a liability policy. To avoid the mandate of § 38-175c, however, the majority claims that the excess policy is not an “automobile liability policy,”
First, the majority justifies its decision by construing the statute in light of its legislative history. In doing so, it ignores a fundamental rule that when a statute is clear and the language is unambiguous there is no room for construction. Stuart v. Department of Correction, 221 Conn. 41, 44, 601 A.2d 539 (1992); Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). Moreover, we cannot read into the legislation provisions that are not clearly stated. Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988). But even if we should consider this legislative history and the underlying policies of the statute mandating uninsured motorist coverage, we should still be led to the conclusion that coverage is required under the excess policy. In Travelers Indemnity Co. v. Malec, 215 Conn. 399, 403, 576 A.2d 485 (1990), we made clear that one of the major purposes of the statute requiring uninsured motorist coverage was “to raise the amount of this protection.”
Finally, the majority points to § 38-175a-4 of the Regulations of Connecticut State Agencies, which provides in relevant part that “[t]hese regulations [providing for uninsured motorist coverage] do not apply to the insurance afforded under any policy ... if the policy contains an underlying insurance requirement . . . .” First, it must be noted that these regulations were adopted in 1975, eight years before the legislature mandated that insurers provide uninsured motorist coverage in amounts equal to an insured’s liability limits. More important, the regulations conflict with
In Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 569 A.2d 544 (1990), this court went to great lengths to distinguish an indemnity policy from that of a liability policy. This distinction afforded the basis for our decision in Cohn that an indemnity policy, as distinguished from a liability policy, did not trigger the mandatory uninsured motorist coverage. In Cohn we stated the following: “The entire orientation of this contract, as evidenced by its unequivocal language, is to indemnify the insured rather than to assume direct liability to injured third parties. To the extent that there may be similarities in the environment of underlying automobile policies vis-a-vis excess blanket catastrophe liability policies, we conclude that the term automobile liability policy as referred to in § 38-175e includes only those policies that extend underlying coverage before the operation of any indemnity policy that might otherwise exist.” Id., 547-48. Although it was dicta, this preview of our opinion two years ago has additional significance. “[T]he legislature is presumed to be aware of the interpretation of a statute and ... its subsequent nonaction may be understood as a validation of that interpretation. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). This presump
To support its position, the majority relies on the following cases from other jurisdictions. See O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1029 (3d Cir. 1981); Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960 (Ala. 1978); Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 437 N.E.2d 691 (1982); United Services Automobile Assn. v. Wilkinson, 132 N.H. 439, 569 A.2d 749 (1989); Matarasso v. Continental Casualty Co., 82 App. Div. 2d 861, 440 N.Y.S.2d 40 (1981), aff'd, 56 N.Y.2d 264, 436 N.E.2d 1305, 451 N.Y.S.2d 703 (1982); Moser v. Liberty Mutual Ins. Co., 731 P.2d 406 (Okla. 1986); Thompson v. Grange Ins. Assn., 34 Wash. App. 151, 660 P.2d 307 (1983). That reliance, however, is misplaced. The majority concedes that in those jurisdictions, “the relevant statutes provide for minimum uninsured motorist coverage rather than uninsured motorist limits equal to liability limits, as does § 38-175c.” (Emphasis in original.) Id. Despite this acknowledgment, the majority applies the reasoning of those cases to the provisions of § 38-175c. All but United Services Automobile Assn. v. Wilkinson, supra, however, turned on the legislative decision to provide for minimum uninsured motorist coverage. The Supreme Court of Oklahoma in Moser v. Liberty Mutual Ins. Co., supra, 409, summed up the primary
In holding that excess liability insurance came within the purview of a similar statute, the Ohio Supreme Court held: “Clearly, under the express terms of [Ohio’s uninsured motorist statute], no exception is made with respect to excess insurance coverage. If the legislature desires to exempt excess liability carriers, they are free to do so. In the meantime, however, we are compelled to hold that excess liability insurance must comport with [the uninsured motorist statute]. In this holding
Finally, the majority quotes 8C J. & J. Appleman, Insurance Law and Practice (1981) § 5017.65, p. 107, wherein it states that excess policies “pick up this exceptional hazard at a small premium.” The amount of the premium should not be a concern of ours in determining the law of this state when specific coverage is mandated by our legislature. If the additional risks to the insurer on the excess policy have not already been accounted for, they can be factored into the premium.
I would find that the excess policy provides for uninsured motorist coverage to the extent of $1,000,000, the amount of liability protection afforded to the insureds.
See footnote 2 of the majority opinion for the text of General Statutes § 38-175c.
As the majority notes, the parties agree that Mass had not requested a reduction in the uninsured motorist coverage from USF&G.
When General Statutes § 38-175e was amended to require uninsured motorist coverage to equal liability coverage, the intent of the framers was clear. “We have no doubt that the General Assembly contemplated that an insured should make a purposeful and knowing decision to request a lesser amount of [uninsured motorist] coverage. The legislative history of Public Acts 1983, No. 83-461 demonstrates the importance that the legislature attached to specific awareness of the content of the statute: ‘Under subsection 2, it would require each insured who purchases more than the legally required amount of liability insurance would [sic] receive the same amount of uninsured motorist coverage. The insured would have an opportunity to waive in writing the additional uninsured motorist coverage. This change would increase the consumer’s awareness of the value of low-cost uninsured motorist coverage which protects the insured and his family members. Apparently many drivers purchase $100,000.00 or more of liability
General Statutes § 38-175c (a) (1) provided in pertinent part: “Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations . . . .” (Emphasis added.)
Ohio’s uninsured motorist statute; Ohio Rev. Code Ann. § 3937.18 (Baldwin); provided in pertinent part: “(A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in the state unless an equivalent amount of . . . [uninsured motorist] coverage ... is provided therein . . . .”
In this case, for the same reasons as set forth in my dissent in Curran v. Aetna Casualty & Surety Co., 222 Conn. 657, 671, 610 A.2d 1198 (1992) (Berdan, J., dissenting), I would find that “stacking” does not apply and that there is $1,000,000 of coverage under this excess policy.