Dixon v. Empire Mutual Insurance

456 A.2d 335, 189 Conn. 449, 1983 Conn. LEXIS 461

• Court: Supreme Court of Connecticut
• Decided: March 8, 1983
• Docket: 10964
• Status: Published

Opinions

Arthur H. Healey, J.

The present case was tried and decided prior to our decision in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982). This appeal raises the issue of whether the trial court erred in holding that the insured plaintiffs could, under the terms and conditions of their insurance policy, “stack” uninsured motorist coverage where their insurance policy covered two automobiles. Even if we were to find that the terms of the policy prohibited the stacking of uninsured motorist coverage, we held in Nationwide that General Statutes § 38-175c, and the pertinent regulations promulgated thereunder, precluded any such terms and conditions from preventing the stacking of benefits. Therefore, we affirm the decision of the trial court permitting stacking.

This action arose out of a motor vehicle accident that occurred on June 19, 1975, in which the plaintiff, Carlton Dixon, was struck and injured by an uninsured motorist.¹ Carlton Dixon was a minor at the time of the accident, so this action was instituted by Rosa F. Dixon, the duly appointed guardian of the estate of Carlton Dixon. Carlton Dixon was “insured” under the terms and conditions of the insurance policy issued by the defendant, Empire Mutual Insurance Company (Empire Mutual), to Dematraious Dixon, the plaintiff’s father. The policy covered two automobiles, a 1970 Buick and a 1971 Mercury,² for which the plaintiff’s father paid separate premiums to provide coverage on both. The policy included a provision protecting against injuries sustained in any accident with an uninsured motorist. The premium for uninsured motorist coverage on the Buick was $2, while for the Mercury it was $1. Empire Mutual has already paid the plaintiffs $5000 for basic reparations benefits, the limit of that coverage provided under the terms of the Basic Reparations Endorsement contained in the policy.

Before the trial court, Empire Mutual contended that the absolute ceiling for uninsured motorist coverage was $20,000 for each person injured, regardless of the number of vehicles covered by the policy. The plaintiffs contended that the amount of protection was $20,000 for each vehicle and, because Dematraious Dixon had two vehicles, the total amount of coverage provided by the policy was $40,000. The trial court agreed with the plaintiffs and, accordingly, awarded them $35,000.³

The insurance policy issued by Empire Mutual is divided into four parts: Part I is entitled “Liability”; Part n is entitled “Expenses for Medical Services”; Part III is entitled “Physical Damage”; and Part IV covers “Protection Against Uninsured Motorists.” Following these sections is a set of “Conditions.” Condition number 4, which specifically applies only to Parts I, II and III, covers situations with “Two or More Automobiles.”⁴ It provides, in relevant part, as follows : “When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each . . .

The applicable provision in Nationwide, unlike the provision contained in Condition 4 of the policy issued by Empire Mutual, explicitly prohibited stacking of uninsured motorist coverage in the event that two or more cars were insured under the same policy. Nationwide Ins. Co. v. Gode, supra, 398. We held there that because the applicable regulations, § 38-175a-6⁵ of the Regulations of Connecticut State Agencies, did “not expressly authorize a limitation of payment provision such as that contained in this insurance policy, the clause cannot operate to prevent the defendants [the insureds] from stacking their coverages as they have tried to do.” Nationwide Ins. Co. v. Gode, supra, 400. The claimed effect of the pertinent provisions of the respective insurance policies in Nationwide and in this case, i.e., no stacking, is the same. Our analysis in Nationwide applies here and need not be repeated. Therefore, regardless of whether Empire Mutual’s claimed interpretation of Condition 4 is correct, it cannot act to prohibit the plaintiffs from stacking the uninsured motorist coverage provided by the policy.

Furthermore, in the present case, coverage for the 1971 Mercury was added to the policy over five months after the policy was issued on the 1970 Buiek. It was separately listed in the policy, and a separate premium was paid by Dematraious Dixon. In such circumstances, we have noted that it is particularly appropriate to presume that such a policy entitled the insured to stack uninsured motorist coverage. See Safeco Ins. Co. v. Vetre, 174 Conn. 329, 334-35, 387 A.2d 539 (1978), and cases cited therein; see also Nationwide Ins. Co. v. Gode, supra, 396, and cases cited therein; Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 450-51, 370 A.2d 1006 (1976).

There is no error.

In this opinion Peters, Parskey and Grillo, Js., concurred.

1 The underlying facts were stipulated by the parties.

2 The policy was originally issued on December 12, 1974, but was later amended so as to add the Mercury in its coverage on May 28, 1975.

3 This figure represents the total amount of uninsured motorist benefits, less the $5000 basic reparations benefits already paid by Empire Mutual.

4 Condition 4 provided in full as follows: “two OR more Automobiles — rPARTS I, II, III: When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Part I of this policy, and separate automobiles under Part III of this policy, including any deductible provisions applicable thereto.”

5 As noted in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 400, 446 A.2d 1059 (1982), the -regulations have the force of law. See also Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 449, 370 A.2d 1006 (1976).