Rosnick v. Aetna Casualty & Surety Co.

374 A.2d 1076, 172 Conn. 416, 1977 Conn. LEXIS 910
CourtSupreme Court of Connecticut
DecidedFebruary 22, 1977
StatusPublished
Cited by30 cases

This text of 374 A.2d 1076 (Rosnick v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosnick v. Aetna Casualty & Surety Co., 374 A.2d 1076, 172 Conn. 416, 1977 Conn. LEXIS 910 (Colo. 1977).

Opinions

House, C. J.

This is an appeal from a judgment rendered by the Superior Court granting the defendant’s motion for summary judgment and denying a similar motion made by the plaintiff. The action was brought for a declaratory judgment to determine whether the “hit-and-run” clause in the uninsured motorist provisions of an automobile insurance policy issued by the defendant was in derogation of the statutory minimum requirements for such coverage so that the plaintiff, Anita E. Rosnick, was in fact covered for injuries sustained in an accident.

The facts of the case are not in dispute. On September 14, 1970, the plaintiff was driving an automobile owned by her in a westerly direction on route 84 in Hartford. As a result of a negligent changing of lanes by the driver of a tractor-trailer without warning or signal, the plaintiff was caused to swerve suddenly and collide head-on with a guardrail on the highway. As a result of this accident, the plaintiff sustained personal injuries. There was no contact or collision between the automobile driven by the plaintiff and the tractor-trailer nor was the identity of the tractor-trailer or of its driver ever determined.

The defendant, Aetna Casualty and Surety Company, had issued a contract of automobile liability insurance to the plaintiff in July, 1970, and it was in effect on the date of the accident in question. [418]*418The policy contained an uninsured motorist provision entitled “Family Protection Coverage” which obligated the defendant to pay all sums which the plaintiff would be legally entitled to recover as damages for bodily injuries caused by the owner or operator of an “uninsured automobile.” The term “uninsured automobile” was defined to include a trailer of any type and to include a “hit-and-run automobile” which, in turn, was defined to mean “an automobile which causes bodily injury to an Insured arising out of physical contact of such automobile with the Insured or with an automobile which the Insured is occupying at the time of the accident, provided: . . . there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run automobile.’ ”

The defendant claimed that there was no coverage for the plaintiff in this case under the terms of the policy, since there was no physical contact between the plaintiff’s automobile and the motor vehicle which caused the accident. The plaintiff claimed that the policy requirement for physical contact is in derogation of the statutes of the state of Connecticut and regulations which were promulgated thereunder by the insurance commissioner and that the requirement of physical contact was void.

The trial court concluded that the requirement of physical contact between the motor vehicles of a hit-and-run driver and the plaintiff contained in the uninsured motorist portion of the policy was not a restriction of the statutory mandatory uninsured motorist coverage in Connecticut and thus was not in derogation of the applicable statutes, but was actually an extension of the coverage required [419]*419by the legislature in the applicable statute, § 38-175e of the General Statutes, in effect in 1970, and the regulations promulgated thereunder.

The plaintiff made three assignments of error, all of which relate to the principal issue at trial: Is the requirement of physical contact between the motor vehicle of a “hit-and-run” driver (specifically and accurately described as a “force-and-run” driver in the Superior Court’s finding) and the plaintiff’s vehicle, as provided in the uninsured motorist provisions of a standard automobile insurance policy and the policy in question, a restriction of uninsured motorist coverage made mandatory by statute and the regulations promulgated thereunder in the state of Connecticut and, thus, in derogation of the applicable statutory law or is it an appropriate extension of the coverage required by the legislature as of September 14, 1970?

At the time of the accident in question, the controlling statutes were those adopted by 1967 Public Acts, No. 510, which were amended by 1969 Public Acts, No. 202, and incorporated into the General Statutes as §§ 38-175a through 38-175d, the relevant portions of which are printed in the footnote.1 The [420]*420administrative regulation adopted by the insurance commissioner is § 38-175a-6, entitled “Minimum provision for protection against uninsured motorists,” which provided: “The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured caused by an accident involving the uninsured automobile. This coverage shall insure the occupants of every automobile to which the bodily injury liability coverage applies. ‘Uninsured automobile’ includes an automobile insured against liability by an insurer that is or becomes insolvent.”

On the date of the accident, there was in effect an automobile insurance policy with “Family Protection Coverage” issued by the defendant to the plaintiff. The policy contained a provision which, in relevant part, reads as follows: “Coverage GfFamily Protection (Damages for Bodily Injury) To pay all sums which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an unin[421]*421sured automobile because of bodily injury . . . sustained by tbe Insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. . . . ‘ [UJninsured automobile’ includes a trailer of any type and means: (a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder, or (b) a hit-and-run automobile; . . . ‘hit-and-run automobile’ means an automobile which causes bodily injury to an Insured arising out of physical contact of such automobile with the Insured or with an automobile which the Insured is occupying at the time of the accident, provided: . . . there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run automobile.’ ”

This court decided similar questions to the ones raised in this case in Weingarten v. Allstate Ins. Co., 169 Conn. 502, 363 A.2d 1055. At issue in Weingarten was the interpretation of the same statutory and regulatory provisions in question here. In Weingarten we concluded that the applicable statutory and regulatory provisions did not require coverage in situations such as the present ease where the vehicle causing the accident was “unidentified,” as distinguished from “uninsured,” and where there was no physical contact between it [422]*422and the plaintiff’s vehicle. We there stated (p. 507): “The statute and regulations do not define ‘uninsured motorist’ or in any way refer to what are commonly called hit-and-run operators.

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Bluebook (online)
374 A.2d 1076, 172 Conn. 416, 1977 Conn. LEXIS 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosnick-v-aetna-casualty-surety-co-conn-1977.