United States Fidelity & Guaranty Co. v. Pitruzzello

646 A.2d 936, 35 Conn. App. 638, 1994 Conn. App. LEXIS 324
CourtConnecticut Appellate Court
DecidedAugust 23, 1994
Docket12821
StatusPublished
Cited by6 cases

This text of 646 A.2d 936 (United States Fidelity & Guaranty Co. v. Pitruzzello) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Fidelity & Guaranty Co. v. Pitruzzello, 646 A.2d 936, 35 Conn. App. 638, 1994 Conn. App. LEXIS 324 (Colo. Ct. App. 1994).

Opinion

Schaller, J.

The plaintiff in the first case, United States Fidelity and Guaranty Company, appeals from the judgment of the trial court denying its application to vacate an arbitration award made to the defendants,1 and from the judgments granting the defendants’ applications to confirm the award. The sole issue on appeal is whether, under the defendants’ underinsured motorist coverage, the plaintiff is entitled to credits for payments made to other claimants by or on behalf of the tortfeasor in calculating the offset against damages [640]*640owed to each of the defendants. We affirm the judgments of the trial court.

The following facts are relevant to this appeal. The defendants, Lorenzo Pitruzzello, Troy Kreder and Louis Catalano, were injured in a motor vehicle accident on December 22,1990, while occupying Kreder’s car. The tortfeasor, Esther E. McAvay, was insured under a policy with a limit of $20,000 per person and $40,000 per accident. Pursuant to that policy, Pitruzzello received $18,000, Kreder and Catalano each received $9000, and a fourth occupant not involved in this appeal received $4000.

The defendants pursued arbitration as required by subsection (c) of General Statutes § 38a-336 (formerly § 38-175c) to secure underinsured motorist benefits from the plaintiff under a $50,000 single limit policy owned by Kreder. At the arbitration proceeding, the parties relied on the same arguments offered here regarding the meaning of the $50,000 limit. Two of the three arbitrators agreed with the defendants’ position, and awarded Pitruzzello $32,000, Kreder $5000, and Catalano $4200. The trial court denied the plaintiff’s subsequent application to vacate or modify the award2 and granted the defendants’ applications to confirm the award.3 The plaintiff appeals from that judgment.

[641]*641Currently, under the tortfeasor’s motor vehicle insurance policy and Kreder’s underinsured motorist policy, Pitruzzello has been awarded a total of $50,000, Kreder, a total of $14,000, Catalano, a total of $13,200, and the nonparty occupant of the Kreder vehicle, $4000. A total of $81,200, therefore, has been awarded to the defendants. The plaintiff contends, however, that the defendants should be compensated no more than they would have been had they been injured by a motorist carrying a $50,000 single limit liability policy. That analysis would limit the defendants to collecting no more than $10,000 from the plaintiff under the underinsured motorist provision, the difference between the underinsured policy limit and the amount recovered from the tortfeasor. The plaintiff argues that the defendants have been overcompensated by $31,200.

The underinsured motorist provision of the motor vehicle policy issued by the plaintiff states in part: “Any amounts otherwise payable for damages under this coverage shall be reduced by all sums . . . [p]aid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible . . . ,”4 Language identical to this was interpreted by our Supreme Court to prohibit an insurer from reducing the damages owed to a claimant under a underinsured motorist policy by taking credits for payments made to other claimants in Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 764, 621 A.2d 258 (1993). The Stephan court held that “[t]o interpret ‘the bodily injury’ to mean ‘a bodily injury’ or ‘any bodily injuries’ would be to distort the plain and unambiguous meaning of this simple phrase. . . . We conclude that the policies did not permit Phoenix and [642]*642Pennsylvania to reduce the damages owed to Stephan by taking credit for payments made to others.” (Citation omitted.) Id., 764-65. A companion case, Buell v. American Universal Ins. Co., 224 Conn. 766, 770-71, 621 A.2d 262 (1993), interpreted similar language in another underinsured motorist policy no differently.

The plaintiff attempts to distinguish Stephan from the present case on the ground that the court in Stephan did not state or imply that the total award could exceed the underinsured motorist limits of the policy issued by the defendant. In that case, the amount of underinsured motorist insurance coverage available to Stephan totaled $800,000 between two policies, the greater of which was for $600,000. Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 761. Stephan was found to be entitled to $450,000 damages, reduced by $128,500 in payments already received. Id., 766. The court held that $71,500 in payments made to other injured passengers could not be credited against Stephan. Id., 764-65. The case was remanded with direction to award the claimant $321,500 plus interest, if any. Id., 766.

The plaintiff advances this distinction because of our Supreme Court’s holding in American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990). There, the court held that under the former General Statutes (Rev. to 1989) § 38-175c (b) (2), now § 38a-336 (d), underinsurance coverage is activated only if it is greater than the aggregate of the liability limits of the tortfeasor’s vehicle.5 Id., 631. The court adopted the analysis of courts in other states, which have construed [643]*643similar statutes as being intended “ ‘to permit the injured party to recover the amount he would have received had the tortfeasor been insured to the same extent as the injured party.’ Connolly v. Royal Globe Ins. Co., 455 A.2d 932 (Me. 1983). ‘It could not have been intended to place the insured who is injured by an underinsured motorist in a better position than one who is harmed by a motorist having the same insurance as the insured.’ Dewberry v. Auto-Owner Ins. Co., 363 So. 2d 1077, 1081 (Fla. 1978).” American Motorists Ins. Co. v. Gould, supra, 631; see also Mass v. United States Fidelity & Guaranty Co., 222 Conn. 631, 647, 610 A.2d 1185 (1992).

The plaintiff correctly asserts that the individuals injured in the accident in question here, collectively, have been awarded more than they would have been able to recover had the tortfeasor McAvay been insured for $50,000 and no underinsured motorist policy been available to the defendants. The plaintiff claims that in light of the language in Gould surrounding the policy behind General Statutes § 38a-336 (d), the defendants should not be allowed in effect to stack the liability policy of McAvay with the underinsured motorist policy of the defendant Kreder, thus collecting $31,200 more than they otherwise would be able to recover. The defendants argue in response that Gould is inapposite because the issue in that case was the triggering of underinsured motorist coverage, not the determination of the amount of the offset. See Covenant Ins. Co. v. Coon, 220 Conn.

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Cite This Page — Counsel Stack

Bluebook (online)
646 A.2d 936, 35 Conn. App. 638, 1994 Conn. App. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-fidelity-guaranty-co-v-pitruzzello-connappct-1994.