DAIRYLAND INSURANCE COMPANY v. MAUREEN K. MITCHELL, EXECUTRIX FOR THE ESTATE OF JOHN MOONEY, JR., et al., SC 19482

Judicial District of Litchfield

 

      Automobile Insurance; Whether Bodily Injury Coverage for Named Insured “Specifically Excluded by Endorsement” Under General Statutes (Rev. to 2010) § 38a-335 (d) such that Insurer has no Duty to Defend or Indemnify.  John Mooney, Jr., died in an automobile accident in 2010 when the vehicle in which he was a passenger struck a parked tractor trailer.  While Mooney owned the vehicle, Robert Atherton was driving at the time of the accident.  Mooney’s estate brought a wrongful death action against Atherton alleging that his negligence caused Mooney’s death.  The plaintiff, which insured Mooney’s vehicle under a personal automobile insurance policy, brought this action against Mooney’s estate seeking a declaratory judgment determining that it has no duty to defend or indemnify Atherton in the wrongful death action because the policy does not provide liability coverage for any claims of bodily injury to Mooney, the policy’s named insured.  The policy contains an exclusion providing that “coverage and [the plaintiff’s] duty to defend does not apply to . . . [b]odily injury to you,” and the policy includes an endorsement amending the policy definition of “you” to mean “the person shown as the named insured on the Declarations Page.”  Mooney is the named insured on the declarations page.  At the time of the accident, General Statutes § 38a-335 (d) provided that “the coverage afforded under the bodily injury liability and property damage liability provisions in any [automobile liability policy] shall apply to the named insured and relatives residing in his household unless any such person is specifically excluded by endorsement.”  (Emphasis added.)  The trial court rendered judgment in favor of the plaintiff, finding that coverage for Mooney was “specifically excluded by endorsement” in that the policy language clearly and unambiguously provides that the plaintiff’s coverage and its duty to defend do not extend to claims for bodily injury to Mooney.  The defendant appeals, claiming that § 38a-335 (d) permits the exclusion of a named insured from bodily injury liability coverage only when the exclusion is set out in a separate policy endorsement that specifically articulates the exclusion and specifically names the person excluded from coverage.  The defendant also claims that the exclusion here is unconscionable and contrary to public policy and that upholding it would frustrate Mooney’s reasonable contract expectation that the insurance he purchased would provide coverage were he ever injured in his own vehicle.  Finally, the defendant argues that the technical wording of the exclusion here, its inconspicuous location in the policy and its failure to set out a specific endorsement as required by § 38a-335 (d) are all factors making application of the exclusion fundamentally unfair.