2 Conn. App. 282 | Conn. App. Ct. | 1984
This case raises the issue of whether, in order to recover insurance proceeds under a family *283 combination automobile policy, the claimant has the burden of proving that the "nonowned automobile" in question had not been furnished for the regular use of the named insured or of any relative. This precise question is a matter of first impression in Connecticut.
The facts are not disputed.
On July 18, 1972, the plaintiff was riding as a passenger on a motorcycle in Manchester. While standing at a stop sign, the motorcycle was hit from behind by an automobile owned by Dennis Quigley of Manchester and driven by his brother David Quigley, who resided with his parents in South Windsor. As a consequence of the collision, the plaintiff sustained severe injuries including the loss of her left leg below the knee.
The plaintiff brought suit against both Quigley brothers and against a passenger in the Quigley automobile. See Slicer v. Quigley,
The plaintiff brought the present action under General Statutes 38-175 seeking to recover from the defendant insurer a portion of the unsatisfied judgment under a "Family Combination Automobile Policy" issued by the defendant to the parents of David Quigley, the driver of the car. The policy covered all relatives living at home who drive any nonowned automobiles. The defendant admits that David Quigley was a relative living at home. The policy also defines a nonowned automobile as "an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative . . . ." *284
The defendant raised the special defense that the driver, David Quigley, was furnished the car, a Fiat, for his regular use and was therefore not covered under the policy. At the conclusion of the plaintiff's case at trial, the defendant moved for a directed verdict which the court denied. In its charge to the jury, the court stated that the plaintiff had the burden of proof on the "regular use" issue. The jury returned a general verdict for the plaintiff and awarded her the full amount of the defendant's $25,000 policy. On motion by the defendant, the court, M. Hennessey, J., set aside the verdict and rendered judgment for the defendant, stating that "the jury could not have reached the conclusion they did under the court's charge." The plaintiff appeals1 from the judgment notwithstanding the verdict.
The plaintiff briefed two principal issues: (1) whether the trial court erred in granting the defendant's motion for judgment notwithstanding the verdict; and (2) whether the trial court improperly placed the burden of proving an exception to coverage2 on the plaintiff, rather than on the defendant.3
We will first consider the question of burden of proof since our conclusion that the court erroneously allocated to the plaintiff the burden of proving that the nonowned Fiat was not furnished for the regular use of David Quigley, substantially disposes of the case.
The general rule in Connecticut was stated in Harty v. Eagle Indemnity Co.,
"In a case of this kind the plaintiff is not required to negative every possible defense under the policies. In the absence of special defenses his burden is satisfied when he proves his interest, his loss and compliance with the policy requirements as to proof of loss. Benanti v. Delaware Ins. Co.,
On the other hand, the burden of proving an exception to a risk is on the insurer. O'Brien v. John Hancock Mutual Life Ins. Co.,
In Hill v. Employers' Liability Assurance Corporation,
A very similar question was involved in Rathbun v. Aetna Casualty Surety Co.,
Although the court treated the matter as an exception, it did not allude to the burden of proof in deciding as a matter of law that, on the stipulated facts, *288 Joseph's sister, Ina, was a member of Joseph's household within the meaning of the insurance policy.4
The defendant in this case did not claim that the regular user provision is not an exception. Rather, it claimed that, on the authority of Rochon v. Preferred Accident Ins. Co.,
The defendant's reliance on these cases is misplaced. In Rochon, the insurance policy included within its provisions any person operating the car of the insured with his permission. The operator of the car was only an insured if permission were proven. Likewise, in Manthey, the policy provided coverage only if the use were commercial. In each of these cases, the initial existence of coverage depended upon a finding of *289 permission or commercial use. These requirements were clearly conditions precedent so that the burden of proof was on the claimant.
Unlike the claimants in Rochon and Manthey, David Quigley was admittedly an insured under the policy in this case as a relative of the insured parties, living at home and operating a nonowned automobile. The insurance policy sets forth the general insurance protection providing for the operation of nonowned automobiles by relatives. It is only in the definition of a nonowned automobile in the policy that it states that a nonowned automobile is one not furnished for the regular use of a relative.
We conclude that the regular use provision in the policy in this case is an exception to coverage, which the defendant insurer must allege and prove at the trial.
The question of whether or not the court erred in granting the defendant's motion for judgment notwithstanding the verdict is determined by our decision on the issue of the burden of proof. Because the court erroneously placed the burden of proof on the plaintiff, its conclusion that she failed to meet this burden is nugatory. The court erred in setting aside the verdict.
Concerning the appropriate remedy, the plaintiff claims that there was sufficient evidence that the Fiat was not furnished for the regular use of David Quigley which would justify reinstating the verdict. In the memorandum of decision on the defendant's motion for judgment notwithstanding the verdict, the only facts found by the court which are pertinent to this issue are (1) that the Fiat was owned by David Quigley's brother Dennis, who lived in Manchester; (2) that the operator, David Quigley, lived in South Windsor; (3) that David Quigley's parents owned two cars, a Comet and a Toyota, which he was permitted to use; and (4) that David Quigley did not use one automobile more than the other. At trial, *290 neither party offered any other evidence on the question of regular use since each claimed that the other party had the burden of proof on this issue.
The evidence before the jury in the unusual stance of this case fell far short of that necessary to sustain the plaintiff's verdict. Although the jury, in its answer to a special interrogatory, found that the plaintiff had proven that David Quigley was not operating the 1971 Fiat as part of his regular use, it also found, in its answer to another special interrogatory, that the plaintiff had not proven the circumstances under which David Quigley had permission to operate the Fiat on July 18, 1972.
"`[A]lthough it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture.'" State v. Gaynor,
There is error, the judgment is set aside and the case is remanded to the trial court for a new trial.
In this opinion the other judges concurred.