Lamadeleine v. Segur, Inc., No. Cv94-0316702 S (Mar. 12, 1999)

1999 Conn. Super. Ct. 3177, 24 Conn. L. Rptr. 205

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The plaintiffs instituted this proceeding against H.D. Segur, Inc. d/b/a H.D. Segur Insurance and Patrick Gillotti. The complaint alleges that the defendants negligently failed to procure sufficient underinsured motorist coverage. As a result of the defendants' alleged negligence, the plaintiffs did not have adequate coverage when they were involved in an automobile accident with an underinsured motorist.

The defendants have moved for summary judgment on the ground that the plaintiffs have failed to exhaust the underinsurance policy and, therefore, the plaintiffs may not maintain a negligence claim against the defendants. In support of this motion, the CT Page 3178 defendants have cited to General Statutes § 38a-336 (b) andContinental Insurance Co. v. Cebe-Habersky, 214 Conn. 209,571 A.2d 104 (1990).¹ The defendant's reliance upon this authority is misplaced. The sole issue in Cebe-Habersky was "whether a claimants access to underinsured motorist insurance first requires the payment of the limits of the liability policy insuring the person responsible for the accident." ContinentalInsurance Co. v. Cebe-Habersky, supra, 210. The court concluded that such payments were required by § 38-175c(b)(1), the predecessor to § 38a-336 (b).

By contrast, the issue here is whether the plaintiffs' failure to exhaust their underinsured motorist policy precludes them from asserting a negligence action against their insurance agent and the agent's employer. Cebe-Habersky and § 38a-336 (b) are therefore inapplicable to the facts of this case.

The defendants' motion is, accordingly, denied.

Moraghan, J.