44 Conn. App. 754 | Conn. App. Ct. | 1997
The plaintiffs appeal from the summary judgment rendered in favor of the defendant. They claim that the trial court improperly determined that (1) there was no genuine issue of material fact relating to whether the plaintiff Elaine Schratwieser was an insured under her father’s policy of insurance and (2) the plaintiff Paul Schratwieser did not allege a claim on his own behalf. We reverse the judgment of the trial court.
The following facts are necessary for the disposition of the appeal. The plaintiffs commenced this action against the defendant to recover uninsured and underinsured benefits pursuant to a policy of insurance, purchased by the plaintiff Paul Schratwieser, covering him as the named insured together with his relatives who are residents of his household. In their three count complaint, the plaintiffs allege that the plaintiff, Elaine Schratwieser, Paul’s daughter, was a passenger in a car that collided with another vehicle in Stamford. In the first count, the plaintiffs seek uninsured motorist coverage, alleging that the vehicle in which Elaine was riding was uninsured. In the second count, the plaintiffs allege that the driver of the car in which Elaine was riding was underinsured and seek underinsured motorist coverage. In the third count, the plaintiffs allege a breach of the implied covenant of good faith because the defendant’s denial of the plaintiffs’ claim was untimely and the reasons for denial were not fully and fairly set forth.
The defendant moved for summary judgment on the ground that Elaine was not a resident of her father’s household at the time of the accident and, therefore, not an insured under the policy. The defendant also moved for summary judgment against Paul on the ground that he had not asserted a claim on his own
The standard of review of a trial court’s decision granting a motion for summary judgment is well settled and is not challenged in this case. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof
Viewing the evidence in the light most favorable to the plaintiffs, we disagree with the trial court’s determination that there existed no genuine issue of material fact. In this case, the defendant, in order to be entitled to summary judgment, had to show the absence of a genuine issue regarding whether Elaine was a covered person at the time of the accident. In Remington v. Aetna Casualty & Surety Co., supra, 35 Conn. App. 581, we reversed a summary judgment that the trial court rendered, after finding that a defendant had sustained its burden by demonstrating that a plaintiff was not a member of an insured’s household at the time of an accident.
This case is similar to Remington. Elaine’s deposition testimony and her affidavit set forth that she frequently
Whether a person is a resident within a household must be determined on the factual circumstances in each case. Griffiths. Security Ins. Co., 167 Conn. 450, 458, 356 A.2d 94 (1975). We must determine whether there was sufficient evidence to show a close familial relationship and joint occupation to constitute a household. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 686, 590 A.2d 957 (1991);Remington v. Aetna Casualty & Surety Co., supra, 35 Conn. App. 581; Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 492, 616 A.2d 806 (1992).
We conclude that the evidence presented, together with the inferences that could reasonably be drawn from that evidence, including evidence of Elaine’s intent, was sufficient to raise a genuine issue of material fact as to whether she was a resident in her father’s household and capable of supporting such a finding by a reasonable fact finder.
Because summary judgment was improperly rendered as against Elaine, it necessarily must be considered to have been also improperly rendered as against Paul. As the named insured, he is a proper party to the action as the named insured in the contract of insurance between him and the defendant.
In this opinion the other judges concurred.
In interpreting our decision in Esposito v. Wethered, 4 Conn. App. 641, 496 A.2d 222 (1985), the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment pursuant to Practice Book § 384. Since our decision in Esposito, we have not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment. See Union Trust Co. v. Jackson, 42 Conn. App. 413, 420, 679 A.2d 421 (1996); Battistoni v. Weatherking Products, Inc., 41 Conn. App. 555, 560-61, 676 A.2d 890 (1996). Here, both parties submitted depositions as part of their documents in support or in opposition to the motion for summary judgment without objection. Moreover, the evidence presented by the plaintiff in affidavits provides a sufficient evidentiary basis for our disposition of this appeal. We, therefore, accept the record as it has been submitted to us without ruling on the propriety of deposition testimony when submitted with a motion for summary judgment.