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    Norman Mass, Executor (Estate of Sara Louise Mass), et al. v. United States Fidelity and Guaranty Company United States Fidelity and Guaranty Company v. Norman Mass, Executor (Estate of Sara Louise Mass), et al.
    (14414)
    Shea, Glass, Covello, Borden and Berdon, Js.
    Argued February 20
    decision released June 9, 1992

      Vincent M. Mrnto, for the appellants (Norman Mass, Executor [Estate of Sara Louise Mass], et al.).

      Thomas C. Thomberry, for the appellee (United States Fidelity and Guaranty Company).
   Glass, J.

This is an appeal from the judgment of the trial court granting, in part, the application of the United States Fidelity and Guaranty Company (USF&G) to vacate an arbitration award, and denying the application of Norman Mass, as executor of the estate of Sara Louise Mass and on behalf of his minor children Daniel and Jessica (Mass), to vacate in part or modify the arbitration award. We affirm the judgment of the trial court.

Most of the facts essential to the disposition of this appeal were stipulated to by the parties. On April 18, 1988, an automobile operated by Sara Louise Mass, in which her two minor children, Daniel Mass and Jessica Mass, were passengers, was struck broadside on a residential street in Fairfield by an automobile driven by Christopher Flynn, who was intoxicated, while traveling at a speed in excess of fifty miles per hour. The accident resulted in the death of Sara Mass and in personal injuries to Daniel and Jessica Mass. On and prior to April 18,1988, USF&G and Norman Mass, the husband of Sara and father of Daniel and Jessica, were parties to an automobile insurance contract. The contract, which covered the Masses’ two automobiles, provided uninsured motorist coverage in the amount of $500,000 for each vehicle. The contract also provided for arbitration in case of a disagreement between the parties concerning uninsured motorist claims. On and prior to April 18,1988, Norman and Sara Mass were also parties to another insurance contract with USF&G, denominated a “Personal Excess Policy,” with a face value of $1,000,000, which listed the automobile insurance contract as underlying coverage. Because Flynn carried inadequate liability insurance, Mass sought uninsured motorist recovery under both USF&G policies.

On November 1, 1989, a panel of three arbitrators rendered a decision regarding the amount of insurance coverage available under the Masses’ policies with USF&G and the amount of damages suffered by the estate of Sara Mass and the Masses’ two minor children. The arbitrators ruled that $2,000,000 was available to the claimants: $500,000 on each of the Masses’ two automobiles under the automobile insurance contract plus $1,000,000 under the personal excess policy. The arbitrators determined that the damages suffered were as follows: $1,700,000 by the estate of Sara Mass; $50,000 by Daniel Mass; and $50,000 by Jessica Mass.

Both USF&G and Mass applied to the trial court to vacate the arbitration award. In its application, USF&G asserted that the personal excess policy issued to the Masses did not, by its terms and conditions, provide uninsured motorist coverage, and, further, that USF&G was not obligated under General Statutes § 38-175c to provide such coverage. USF&G claimed, therefore, that the arbitrators’ ruling should be vacated to the extent that it concluded otherwise. In his application to the trial court, Mass sought to have the arbitrators’ award vacated in part or modified to increase the amount of damages found to have been suffered by Sara, Daniel and Jessica Mass and of uninsured motorist coverage found to exist under the two USF&G policies. Mass claimed that the arbitrators incorrectly computed the amount of uninsured motorist coverage as $2,000,000, rather than $3,000,000, because they did not stack the $1,000,000 of coverage available under the personal excess policy. Mass also sought to have the amount of damages increased to at least $7,000,000.

The trial court, relying on Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 569 A.2d 544 (1990), concluded that the personal excess policy did not extend the Masses’ underlying uninsured motorist coverage because it (1) required that the insured be responsible for maintaining uninsured motorist coverage, and (2) lacked any agreement requiring USF&G to provide excess uninsured motorist coverage. The trial court therefore granted USF&G’s application to vacate the arbitrators’ award to the extent that the award included the personal excess policy. The trial court did not find the miscalculation of damages that Mass had claimed, however, and, therefore, denied Mass’ application. This appeal to the Appellate Court followed. We transferred the appeal to ourselves pursuant to Practice Book § 4023.

On appeal, Mass claims that the trial court improperly failed to conclude that: (1) the personal excess policy provided uninsured motorist coverage; (2) $3,000,000 in uninsured motorist coverage was available under the two policies with USF&G; and (3) the estate of Sara Mass was entitled to at least $3,000,000 in damages. USF&G presents only one issue on appeal, which we shall address in conjunction with Mass’ first claim: whether General Statutes § 38-175c requires that the personal excess policy that USF&G issued to the Masses provide uninsured motorist coverage when such coverage had already been provided in a separate policy purchased exclusively for automobile liability protection in accordance with § 38-175c.

Mass first claims that the trial court improperly failed to conclude that the personal excess policy issued by USF&G provided uninsured motorist coverage. Mass argues that the trial court misapplied this court’s holding in Cohn v. Pacific Employers Ins. Co., supra, because the personal excess policy in this case is a liability policy, not an indemnity policy, as was the policy at issue in Cohn. Mass contends that since the personal excess policy covers liability for damages arising out of the operation of an automobile, it is an “automobile liability policy” within the meaning of § 38-175c and, therefore, must provide uninsured motorist coverage pursuant to § 38-175c (a) (2). USF&G argues that the personal excess policy issued to the Masses was not required to provide uninsured motorist coverage under § 38-175c because such coverage had already been provided in accordance with § 38-175c in a separate automobile insurance contract. We are persuaded that the personal excess policy is not an “automobile liability policy” within the meaning of the statute, and, therefore, that the trial court properly concluded that the policy is not required to provide uninsured motorist coverage.

In support of his argument, Mass places substantial reliance on the distinction between an indemnity policy and a liability policy that this court made in Cohn. In that case, we affirmed the conclusion of the trial court that an excess policy issued to the plaintiff was not an automobile liability policy within the meaning of § 38-175c because the terms of the policy unequivocally established that it was an indemnity policy. What we did not decide in Cohn, however, was whether an excess policy whose language provided for liability must comply with the uninsured motorist statute.

Unlike the policy involved in Cohn, the personal excess policy issued to the Masses by USF&G did not require that the insured’s liability be discharged before a cause of action against the insurer would accrue. Id., 547. The policy provided that USF&G would pay damages on behalf of the insured, subject to certain exclusions. Uninsured motorist coverage was not specified in the list of exclusions. The policy further provided that “[rjegardless of the number of insureds, claims or injured persons, the most [USF&G will] pay as damages resulting from one occurrence shall not exceed [$1,000,000],” but that “[i]f primary insurance and this policy cover an occurrence which results in personal injury or property damage, [USF&G will] pay damages which exceed the total applicable primary insurance limits.” The declarations to the policy provided, inter alia, that the insured shall have “primary insurance” for “auto liability,” with limits of $500,000 per accident or occurrence. According to the evidence presented at the arbitration hearing, the Masses paid a total premium of $173 for the personal excess policy during the relevant policy period. The evidence also established that they paid a separate premium of $1000 for the automobile insurance contract for the six month period during which the accident occurred, of which fifty-four dollars went to uninsured motorist coverage.

Pursuant to § 38-175c (a) (2), an insurer is required to provide an insured with uninsured motorist coverage equal to the amount of automobile liability coverage purchased unless the insured elects a lesser amount in writing, although in no event may he elect less than the statutory minimum specified in General Statutes § 14-112 (a). In Travelers Indemnity Co. v. Malec, 215 Conn. 399, 576 A.2d 485 (1990), we examined the legislative history and development of § 38-175c. “Prior to the enactment of § 38-175c; see Public Acts 1967, No. 510; [uninsured motorist] coverage, although available, was not required. Coverage was limited to the amount requested by the insured. In 1969, § 38-175c was amended to require parity of [uninsured motorist] coverage with the minimum limits of liability coverage required by General Statutes § 14-112 (a). See Public Acts 1969, No. 202. In 1983, § 38-175c was again amended now to require parity of [uninsured motorist] coverage with the amount of liability coverage purchased by the insured unless the insured specifically requested a lesser amount. See Public Acts 1983, No. 83-461.” (Emphasis omitted.) Id., 402-403. We concluded that the recent history of the statute reveals: “(1) a heightened legislative interest in uninsured motorist protection; (2) a mandate to raise the amount of this protection; and (3) an intention to increase the public’s consciousness as to the availability of this kind of insurance by requiring increased coverage unless the insured specifically requested otherwise.” Id., 403. “A statute is to be construed by considering its legislative history, language, purpose and the circumstances surrounding its enactment.” (Internal quotation marks omitted.) Id. Accordingly, we must determine whether these factors, including the policies enumerated in Travelers Indemnity Co. v. Malec, supra, compel the conclusion that § 38-175c applies to personal excess policies, such as the policy involved in this case.

In discussing the relationship of uninsured motorist coverage to excess (or umbrella) policies, one leading commentator has stated: “Umbrella policies serve an important function in the industry. In this day of uncommon, but possible, enormous verdicts, they pick up this exceptional hazard at a small premium. Assuming one’s automobile and homeowner’s policies have liability limits of $100,000 or even $500,000, the umbrella policy may pick up at that point and cover for an additional million, five million, or ten million. It may assume as a primary carrier certain coverages not included elsewhere . . .. but there is no intention to supplant the basic carriers on the homeowners or automobile coverages. . . . However, because of the misunderstanding of the courts as to the nature of such coverages, they have been held to fall within the definition of automobile liability insurance.” (Emphasis added.) 8C J. & J. Appleman, Insurance Law and Practice (1981) § 5071.65, p. 107.

We are persuaded that excess or umbrella policies, such as the policy issued to the Masses by USF&G, serve a purpose distinct from that served by policies that exclusively cover liability from damages arising out of the ownership, maintenance or operation of an automobile. While the Masses’ personal excess policy provides, among other coverages, coverage for automobile liability, this does not convert it into an “automobile liability policy” within the meaning of § 38-175c. Rather, the language of the personal excess policy indicates that it was intended as “excess insurance designed solely to protect [the Masses] from the infrequent occurrence of catastrophic judgments against [them].” (Emphasis added.) Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960, 962 (Ala. 1978).

The personal excess policy issued to the Masses by USF&G did not expressly refer to uninsured motorist coverage. In addition, the record is devoid of evidence that the parties intended to include uninsured motorist coverage at the time they entered into the contract. Although the Masses did not explicitly waive uninsured motorist coverage under the excess policy; see footnote 6, supra; no premium for such coverage was paid to USF&G. In contrast, the Masses’ automobile insurance contract with USF&G specifically included a premium for uninsured motorist coverage. Moreover, while it is true that the excess policy did not expressly exclude uninsured motorist coverage, this omission does not create any ambiguity in light of other express terms limiting the policy to excess liability coverage. See Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 394, 437 N.E.2d 691 (1982). Because the Masses’ personal excess policy did not expressly provide uninsured motorist coverage, USF&G was under no obligation to exclude such coverage expressly. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 588-89, 573 A. 2d 699 (1990) (before need for exclusion arises, there must be coverage within defined scope of policy).

Mass argues, in essence, that uninsured motorist coverage should be provided under the personal excess policy for the premium the Masses paid for such coverage under the primary automobile insurance contract only. Although § 38-175e does not prohibit such a result, we decline to read it into the policy when the language of the policy does not clearly indicate an intent to provide uninsured motorist coverage. See, e.g., Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512, 442 A.2d 920 (1982) (determinative question in construing insurance contract is intent of parties, i.e., what coverage insured expected to receive and what insurer was to provide as disclosed by policy provisions). “It is obvious that the present [excess] policy was intended by both parties to protect the insured against excess judgments, and the risks and premiums were calculated accordingly. To require that policy to furnish uninsured motorist coverage would work a substantial revision of that policy.” Hartbarger v. Country Mutual Ins. Co., supra, 396.

Mass refers us to certain decisions in jurisdictions in which the courts have concluded that excess or umbrella policies are automobile liability policies that must provide uninsured motorist coverage. See, e.g., Aetna Casualty & Surety Co. v. Green, 327 So. 2d 65 (Fla. App.), cert. denied, 336 So. 2d 1179 (Fla. 1976); Southern American Ins. Co. v. Dobson, 441 So. 2d 1185 (La. 1983); Duriak v. Globe American Casualty Co., 28 Ohio St. 3d 70, 502 N.E.2d 620 (1986); Cincinnati Ins. Co. v. Siemens, 16 Ohio App. 3d 129, 474 N.E.2d 655 (1984). Mass argues that this court should adopt the reasoning of these cases because the applicable uninsured motorist statutes are similar to § 38-175c in that they require an insurer to provide uninsured motorist coverage in amounts equal to liability coverage. In other jurisdictions that have considered whether excess policies must provide uninsured motorist coverage pursuant to statute, however, courts have answered the question in the negative. See O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1029 (3d Cir. 1981); Trinity Universal Ins. Co. v. Metzger, supra; Hartbarger v. Country Mutual Ins. Co., supra; United Services Automobile Assn. v. Wilkinson, 132 N.H. 439, 569 A.2d 749 (1989); Matarasso v. Continental Casualty Co., 82 App. Div. 2d 861, 440 N.Y.S.2d 40 (1981), aff'd, 56 N.Y.2d 264, 436 N.E.2d 1305, 451 N.Y.S.2d 703 (1982); Moser v. Liberty Mutual Ins. Co., 731 P.2d 406 (Okla. 1986); Thompson v. Grange Ins. Assn., 34 Wash. App. 151, 660 P.2d 307 (1983). Mass contends that these decisions are inapposite because the relevant statutes provide for minimum uninsured motorist coverage rather than uninsured motorist limits equal to liability limits, as does § 38-175c. But see United Services Automobile Assn. v. Wilkinson, supra. We are persuaded, nonetheless, that the reasoning of these latter cases applies to § 38-175c.

In Matarasso v. Continental Casualty Co., supra, the insured sought uninsured motorist coverage under a “Commercial Umbrella Liability Policy” issued by the defendant insurance company. The umbrella policy protected the insured against claims by third parties in excess of the total applicable limits of liability of certain underlying liability policies, including an automobile liability policy. The umbrella policy, which incorporated by reférence provisions of the underlying policies with respect to liability coverage, did not include an uninsured motorist endorsement or supplementary uninsured motorist coverage. In concluding that the uninsured motorist endorsement in the underlying automobile liability policy did not apply to the umbrella policy, the Appellate Division of the Supreme Court of New York stated: “The umbrella policy clearly provides excess protection for [the insured] and his business against liability from third party claims. It incorporates the underlying policies insofar as they provide for protection against liability for damages to third parties. The uninsured motorist coverage provided by the underlying automobile liability policy does not involve claims of liability against the insured from third parties and is not incorporated by the umbrella policy. Any other interpretation would distort the actual purpose of the umbrella policy. ” (Emphasis added.) Id., 862. The court held that New York’s uninsured motorist statute did not mandate uninsured motorist coverage in the umbrella policy because the umbrella policy was not an automobile liability policy within the meaning of the statute, but rather had been purchased to provide excess liability coverage for a variety of potential claims and had been issued upon underlying liability policies. The court concluded that the insured had received the protection of the uninsured motorist statute through his underlying automobile liability policy and, therefore, had not been left without relief. Id.

Trinity Universal Ins. Co. v. Metzger, supra, involved facts similar to those presented in Matarasso. In Trinity Universal Ins. Co., the insured’s executor sought uninsured motorist coverage under a “Personal Excess Umbrella Policy” that covered “ 'ultimate net loss in excess of the underlying limit which the insured shall become legally obligated to pay as damages because of personal injury or property damage.’ ” Id., 961. The “underlying limit” referred to the limits on two underlying policies, including an automobile liability policy. In concluding that the state’s uninsured motorist statute did not require uninsured motorist coverage in the umbrella policy, the Alabama Supreme Court stated: “Automobile liability policies and motor vehicle liability policies insure against the risk of loss through the operation of specific automobiles. An umbrella policy, on the other hand, is fundamentally excess insurance designed to protect against catastrophic loss. Before an umbrella policy is issued, a primary policy (the ‘underlying policy’) must be in existence and this primary policy must by law provide uninsured motorist coverage. The umbrella policy assumes a risk of much less frequent occurrence, i.e., the risk of judgments in excess of primary policy limits, and accordingly carries premiums which reflect the lesser magnitude of this risk. The umbrella policy ... is an inherently different type of insurance from an automobile or motor vehicle liability policy, and consequently does not come within the scope of the uninsured motorist statute. ” (Emphasis added.) Id., 962.

In O’Hanlon v. Hartford Accident & Indemnity Co., supra, the plaintiff sought reformation of an umbrella policy, denominated a “Personal Catastrophe Plan,” which included automobile liability coverage up to the statutory uninsured motorist limits of $300,000. The policy provided uninsured motorist coverage up to $35,000 after the deduction of a “retained limit.” The United States Court of Appeals for the Third Circuit concluded that Delaware’s uninsured motorist statute did not require the umbrella policy to provide uninsured motorist coverage equal to the statutory limits. The court stated: “Policies such as the [insurer’s] umbrella policy . . . with respect to their automobile coverages, would not exist but for underlying primary auto policies to which they provide excess liability insurance. Primary insurance policies ... by their very existence, provide insureds with all the benefits accorded under [the uninsured motorist statute]. To place umbrella policies within the ambit of [the uninsured motorist statute] would be to apply that section to require [uninsured motorist] coverage in addition to that provided by primary policies. We do not believe that [the uninsured motorist statute] can be so read, and hold that it is not applicable to policies that provide excess liability insurance.” Id., 1027.

The reasoning of the courts in Matarasso, Trinity Universal Ins. Co. and O’Hanlon applies with equal force to the present case. The personal excess policy that the Masses purchased from USF&G would not have existed but for the underlying primary insurance policies listed in the declarations, including the automobile insurance contract. The underlying automobile insurance contract, which complied with the provisions of § 38-175c, provided the plaintiffs with all of the benefits accorded them pursuant to the statute.

Mass contends that the policy behind § 38-175c is “to ensure that insureds receive more than the bare minimum of [uninsured motorist] coverage in recognition of the often catastrophic consequences of automobile collisions and the gross inadequacy of statutory minimum coverages.” While we do not disagree with this contention, we believe that this policy is adequately served by the conclusion we reach in this case. The purpose of § 38-175c is to compensate an insured to the same extent as he would have been if he had been injured by a motorist carrying liability insurance equal to the coverage carried by the insured, unless the insured has elected in writing uninsured motorist coverage in an amount less than his liability coverage. In the present case, it is undisputed that Daniel and Jessica Mass and the estate of Sara Mass were compensated in an amount equal to the liability limits under the Masses’ automobile insurance contract with USF&G. Accordingly, we are persuaded that the Masses received the full protection contemplated by the statute when they purchased the underlying automobile liability policy.

USF&G also points us to § 38-175a-4 of the Regulations of Connecticut State Agencies in support of its argument that it was not required to provide uninsured motorist coverage to the Masses under the personal excess policy. Pursuant to General Statutes § 38-175a, the insurance commissioner has the authority to enact regulations governing uninsured motorist coverage. In enacting such regulations, however, the commissioner must effectuate the purpose and intent of the uninsured motorist statute. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 196, 530 A.2d 171 (1987). In accordance with his statutory authority, the commissioner has promulgated §§ 38-175a-1 through 38-175a-9 of the Regulations of Connecticut State Agencies, which define minimum provisions to be included in automobile liability insurance policies, including uninsured motorist coverage. Section 38-175a-4, entitled “Exceptions,” provides in relevant part: “These regulations do not apply to the insurance afforded under any policy . . . if the policy contains an underlying insurance requirement . . . .” (Emphasis added.)

Mass argues that § 38-175a-4 is not valid because it conflicts with the purpose and intent of General Statutes § 38-175c. We disagree. It is well established that “an administrative agency’s regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute.” Travelers Ins. Co. v. Kulla, 216 Conn. 390, 399, 579 A.2d 525 (1990). Moreover, “[a] person claiming the invalidity of a regulation has the burden of proving that it is inconsistent with or beyond the legislative grant.” Id. Finally, the insurance commissioner has a “very broad grant of regulatory authority in filling in the interstices of the uninsured and underinsured motorist coverage legislation, and in doing so his regulation is entitled to great deference.” (Internal quotation marks omitted.) Id.; Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976). We are persuaded that § 38-175a-4 of the regulations is consistent with General Statutes § 38-175c. We therefore accord great deference to the commissioner’s interpretation that § 38-175c does not apply to policies, such as the policy involved in the present case, that contain an underlying insurance requirement.

Because the personal excess policy issued by USF&G to Norman and Sara Mass is not an automobile liability policy within the meaning of § 38-175c, the trial court properly concluded that the statute did not require the policy to provide uninsured motorist coverage. Therefore, the trial court properly determined that the total amount of uninsured motorist coverage available to the estate of Sara Mass and to Daniel and Jessica Mass was $1,000,000, pursuant to the automobile insurance contract. Our determination regarding this first claim disposes of Mass’ second claim that $3,000,000 in uninsured motorist coverage was available under the personal excess policy. In addition, because § 38-175c (b) (1) limits USF&G’s liability to the amount of uninsured motorist coverage available; see footnote 3, supra; it is unnecessary to consider his third claim that the award to the estate of his wife was inadequate.

The judgment is affirmed.

In this opinion Shea, Covello and Borden, Js., concurred.

Berdon, J.,

dissenting. I disagree with the majority’s holding that excess policies are not “automobile liability policies” for the purpose of the uninsured and underinsured motorist coverage requirements of General Statutes § 38-175C. The plain language of § 38-175c (now recodified as § 38a-336) requires that the “Personal Excess Policy” (excess policy) issued by United States • Fidelity and Guaranty Company (USF&G) provide for uninsured motorist coverage. Section 38-175c (a) (2) states that every automobile liability insurance policy shall provide uninsured motorist coverage “with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount . . . .’’The excess policy, by its specific terms, provides that USF&G will “pay damages on behalf of the insured” subject to certain exclusions, none of which applied to uninsured motorist coverage.

In this case, the majority concedes, as it must, that the excess policy is a liability policy. To avoid the mandate of § 38-175c, however, the majority claims that the excess policy is not an “automobile liability policy,” but merely a liability policy and, therefore, not a policy requiring uninsured motorist coverage. (Emphasis added.) It is clear to me, however, that in reaching its conclusion, the majority disregards the plain language of the statute and finesses established precedent.

First, the majority justifies its decision by construing the statute in light of its legislative history. In doing so, it ignores a fundamental rule that when a statute is clear and the language is unambiguous there is no room for construction. Stuart v. Department of Correction, 221 Conn. 41, 44, 601 A.2d 539 (1992); Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). Moreover, we cannot read into the legislation provisions that are not clearly stated. Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988). But even if we should consider this legislative history and the underlying policies of the statute mandating uninsured motorist coverage, we should still be led to the conclusion that coverage is required under the excess policy. In Travelers Indemnity Co. v. Malec, 215 Conn. 399, 403, 576 A.2d 485 (1990), we made clear that one of the major purposes of the statute requiring uninsured motorist coverage was “to raise the amount of this protection.”

Second, the majority seems to be saying that, because the excess policy does not specifically provide for uninsured motorist coverage and does not specify a separate premium for it, there is no coverage. Section 38-175c, however, requires such a provision; and if the policy fails to contain it, then the provision should be included as a matter of law. General Statutes § 38-175c (a) (1). To support its position, the majority relies on Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 590-91, 573 A.2d 699 (1990), wherein this court used a reasonable expectation test to determine whether the contested coverage—that is, complications arising from proper treatment—was included in the policy terms. In Hammer, however, the contested coverage was not mandated by the legislature. Unlike Hammer, this case concerns uninsured motorist coverage, for which the legislature directed that it be provided to the same extent as the liability limits in the policy.

Finally, the majority points to § 38-175a-4 of the Regulations of Connecticut State Agencies, which provides in relevant part that “[t]hese regulations [providing for uninsured motorist coverage] do not apply to the insurance afforded under any policy ... if the policy contains an underlying insurance requirement . . . .” First, it must be noted that these regulations were adopted in 1975, eight years before the legislature mandated that insurers provide uninsured motorist coverage in amounts equal to an insured’s liability limits. More important, the regulations conflict with the plain language of § 38-175c. Although we normally place great weight on an administrative agency’s interpretation of the statute; Board of Education v. State Board of Labor Relations, 217 Conn. 110, 119-20, 584 A.2d 1172 (1991); Lieberman v. State Board of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505 (1990); any regulation that exceeds the authority granted to the administrative agency is void. Berlinski v. Ouellette, 164 Conn. 482, 492, 325 A.2d 239 (1973); see also Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 597, 590 A.2d 447 (1991).

In Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 569 A.2d 544 (1990), this court went to great lengths to distinguish an indemnity policy from that of a liability policy. This distinction afforded the basis for our decision in Cohn that an indemnity policy, as distinguished from a liability policy, did not trigger the mandatory uninsured motorist coverage. In Cohn we stated the following: “The entire orientation of this contract, as evidenced by its unequivocal language, is to indemnify the insured rather than to assume direct liability to injured third parties. To the extent that there may be similarities in the environment of underlying automobile policies vis-a-vis excess blanket catastrophe liability policies, we conclude that the term automobile liability policy as referred to in § 38-175e includes only those policies that extend underlying coverage before the operation of any indemnity policy that might otherwise exist.” Id., 547-48. Although it was dicta, this preview of our opinion two years ago has additional significance. “[T]he legislature is presumed to be aware of the interpretation of a statute and ... its subsequent nonaction may be understood as a validation of that interpretation. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). This presumption is strengthened when the legislature has affirmatively reenacted the statute after the interpretation in question. Phelps Dodge Copper Products Co. v. Groppo, supra, 134; see also Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959).” (Internal quotation marks omitted.) Union Trust Co. v. Heggelund, 219 Conn. 620, 627, 594 A.2d 464 (1991). Indeed, since the date of our decision in Cohn, the legislature amended the statute; Public Acts 1990, No. 90-243, § 127; and did not alter the wording of the statute in regard to requiring uninsured motorist coverage in the amount of an insured’s liability coverage.

To support its position, the majority relies on the following cases from other jurisdictions. See O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1029 (3d Cir. 1981); Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960 (Ala. 1978); Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 437 N.E.2d 691 (1982); United Services Automobile Assn. v. Wilkinson, 132 N.H. 439, 569 A.2d 749 (1989); Matarasso v. Continental Casualty Co., 82 App. Div. 2d 861, 440 N.Y.S.2d 40 (1981), aff'd, 56 N.Y.2d 264, 436 N.E.2d 1305, 451 N.Y.S.2d 703 (1982); Moser v. Liberty Mutual Ins. Co., 731 P.2d 406 (Okla. 1986); Thompson v. Grange Ins. Assn., 34 Wash. App. 151, 660 P.2d 307 (1983). That reliance, however, is misplaced. The majority concedes that in those jurisdictions, “the relevant statutes provide for minimum uninsured motorist coverage rather than uninsured motorist limits equal to liability limits, as does § 38-175c.” (Emphasis in original.) Id. Despite this acknowledgment, the majority applies the reasoning of those cases to the provisions of § 38-175c. All but United Services Automobile Assn. v. Wilkinson, supra, however, turned on the legislative decision to provide for minimum uninsured motorist coverage. The Supreme Court of Oklahoma in Moser v. Liberty Mutual Ins. Co., supra, 409, summed up the primary reason for its holding that the uninsured motorist provision applies only to the underlying automobile liability insurance but not to “umbrella” or excess insurance as follows: “This result, and the distinction inherent in the legislation’s aim of providing minimum coverage is demonstrated from the results reached in other jurisdictions where the same question has been considered. Courts in Delaware [in O’Hanlon v. Hartford Accident & Indemnity Co., supra, construing Del. Code Ann. tit. 18, § 3902,] and Illinois [in Hartbarger v. Country Mutual Ins. Co., supra,] considering uninsured motorist statutes containing the same . . . language as contained in Oklahoma’s [uninsured motorist] statute, concluded that the legislative intent of providing protection against uninsured motorists was fully met by application to primary liability policies. Application of the provisions to supplemental or excess policies was considered to be beyond the intent of the legislation. In both cases the statutes under consideration provided that the amount of uninsured motorist coverage be commensurate with the limits of liability required under the state financial responsibility laws. ” (Emphasis added.) The majority, therefore, incorrectly ignores the major distinction between the applicable statutes in those jurisdictions that merely mandate a minimum coverage and § 38-175c, which requires that insurers provide uninsured motorist coverage in amounts equal to an insured’s liability coverage.

In holding that excess liability insurance came within the purview of a similar statute, the Ohio Supreme Court held: “Clearly, under the express terms of [Ohio’s uninsured motorist statute], no exception is made with respect to excess insurance coverage. If the legislature desires to exempt excess liability carriers, they are free to do so. In the meantime, however, we are compelled to hold that excess liability insurance must comport with [the uninsured motorist statute]. In this holding we approve of Cincinnati Ins. Co. v. Siemens, (1984) 16 Ohio App. 3d 129, 474 N.E.2d 655.” Duriak v. Globe American Casualty Co., 28 Ohio St. 3d 70, 72, 502 N.E.2d 620 (1986). Indeed, the Court of Appeals of Ohio concluded that, in light of its statute requiring the offering of equivalent uninsured motorist coverage upon the issuance of automobile liability insurance, any distinction between automobile liability insurance and excess insurance amounted to “a distinction without a difference.” Cincinnati Ins. Co. v. Siemens, supra, 132; see also Aetna Casualty & Surety Co. v. Green, 327 So. 2d 65 (Fla App.), cert. denied, 336 So. 2d 1179 (Fla. 1976); Southern American Ins. Co. v. Dobson, 441 So. 2d 1185 (La. 1984).

Finally, the majority quotes 8C J. & J. Appleman, Insurance Law and Practice (1981) § 5017.65, p. 107, wherein it states that excess policies “pick up this exceptional hazard at a small premium.” The amount of the premium should not be a concern of ours in determining the law of this state when specific coverage is mandated by our legislature. If the additional risks to the insurer on the excess policy have not already been accounted for, they can be factored into the premium.

I would find that the excess policy provides for uninsured motorist coverage to the extent of $1,000,000, the amount of liability protection afforded to the insureds. Accordingly, I respectfully dissent.

       In this opinion, the term uninsured motorist coverage encompasses underinsured motorist coverage as well.

       In 1991, General Statutes § 38-175a et seq. was recodified as § 38a-334 et seq. We shall refer herein to the former statutory section numbers, cross-referencing the new section numbers where appropriate. General Statutes § 38-175c (now § 38a-336) provides: “(a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured. motor vehicíes and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,198k, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section lk-U2. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” (Emphasis added.)

       Mass points to the following definition of “automobile liability insurance,” provided in Webster’s Third New International Dictionary, which this court adopted in Simonette v. Great American Ins. Co., 165 Conn. 466, 470, 338 A.2d 453 (1973): “ ‘[Insurance against loss from or legal liability for damages arising out of ownership, maintenance, or operation of a motor vehicle.’ ”

       The relevant language of the policy, which was denominated an “Excess Blanket Catastrophe Liability Policy,” provided that the defendant insurer “ ‘will indemnify the Insured for ultimate net loss in excess of the retained limit hereinafter stated which the Insured shall become legally obligated to pay as damages because of A. personal injury or B. property damage or C. advertising injury ....’” (Emphasis omitted.) Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 542-43, 569 A.2d 544 (1990).

       In dicta, however, this court stated: “To the extent that there may be similarities in the environment of underlying automobile policies vis-a-vis excess blanket catastrophe liability policies, we conclude that the term automobile liability policy as referred to in [General Statutes] § 38-175c includes only those policies that extend underlying coverage before the operation of any indemnity policy that might otherwise exist. ’ ’ Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 547-48, 569 A.2d 544 (1990).

       The parties also stipulated that the Masses had never requested, in writing or otherwise, a reduction in their uninsured motorist coverage from USF&G.

       The declarations also provided that the insured shall maintain primary insurance for personal liability with limits of $100,000 per occurrence. “Primary insurance” is defined in the policy as “insurance collectible by the insured which covers liability for personal injury or property damage.”

       General Statutes § 14-112 (a) provides in pertinent part: “To entitle any person to receive or retain a motor vehicle operator’s license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated any of the provisions of section 14-222, section 14-224 or subsection (a) of section 14-227a or any similar provision of the laws of any other state or any territory, or who has been convicted of, or has forfeited any bond taken for appearance for, or has received a suspended judgment or sentence for, a violation of any of said provisions, or who has been held or found criminally responsible in connection with any motor vehicle accident resulting in the death of any person, or who has a record on file with the commissioner which is sufficient, in the opinion of the commissioner, to require evidence of financial responsibility for the reasonable protection of other persons, the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars

       As one commentator has noted, to conclude that excess or umbrella policies are required to provide uninsured motorist coverage pursuant to statute could result in “[s]uch [excess or umbrella] coverage being withdrawn from potential insureds or in premium rates being raised so substantially that they will become priced out of the range of most buyers.” 8C J. & J. Appleman, Insurance Law and Practice (1981) § 5071.65, p. 108.

       An insurance contract whose terms are ambiguous must be construed in favor of the insured. Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 513, 442 A.2d 920 (1982). Although this rule of construction extends to exclusion clauses; id., 514; “[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.” (Internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 584, 573 A.2d 699 (1990). In the present case, where the personal excess policy did not refer to uninsured motorist coverage, to construe the policy to provide uninsured motorist coverage on the basis that such coverage was not expressly excluded would be to “ ‘read into the insurance contract that which is not there.’ ” Id., 591.

       The New Hampshire statute at issue in United Services Automobile Assn. v. Wilkinson, 132 N.H. 439, 448, 569 A.2d 749 (1989), provides that “ ‘[w]hen an insured elects to purchase liability insurance in an amount greater than the minimum coverage required by [the statute], his uninsured motorist coverage shall automatically be equal to the liability coverage elected.’ ” Unlike General Statutes § 38-175c, the New Hampshire statute contains no waiver provision under which an insured may elect coverage less than his liability limits. Id.

       We note that one of the decisions relied on by Mass, Aetna Casualty & Surety Co. v. Green, 327 So. 2d 65 (Fla. App.), cert. denied, 336 So. 2d (Fla. 1976), is criticized in 8C J. & J. Appleman, Insurance Law and Practice (1981) § 5071.65. Furthermore, the Louisiana Supreme Court concluded that the state’s uninsured motorist statute applied to excess or umbrella policies only after a rehearing, and three justices dissented for the reasons assigned in the majority opinion on the original hearing. Southern AmeriDobson, 441 So. 2d 1185 (La. 1983). That court’s initial decision followed the reasoning of the cases relied on by USF&G, especially Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960 (Ala. 1978), and Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 437 N.E.2d 691 (1982).

       The relevant Alabama statute provided in pertinent part: “ ‘No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state . . . unless coverage is provided therein or supplemental thereto . . . under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder . . . from owners or operators of uninsured vehicles . . . provided, that the named insured shall have the right to reject such coverage . ...' Tit. 36, § 74(62a), Code of Ala. 1940, Recompiled 1958.” Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960, 961 (Ala. 1978).

       The Delaware statute, Del. Code Ann. tit. 18, § 3902, as amended, provided in relevant part: “(a) No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any such vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or hit-and-run motor vehicles for bodily injury, sickness or disease, including death, or personal property damage resulting from the ownership, maintenance or use of such uninsured or hit-and-run motor vehicle. Except, that no such coverage shall be required in or supplemental to a policy where rejected in writing, on a form furnished by the insurer describing the coverage being rejected, by an insured named therein, or upon any renewal of such policy unless the coverage is then requested in writing by the named insured. The coverage herein required may be referred to as ‘uninsured vehicle coverage.’
      “(b) The amount of coverage to be so provided shall not be less than the minimum limits for bodily injury, death and property damage liability insurance provided for under the motorist financial responsibility laws of this State. The coverage for property damage shall be subject to a $250 deductible for property damage arising out of any 1 accident unless the insurer and the insured agree in writing to a different deductible. Each insured shall be offered the option to purchase additional coverage for personal injury or death up to a limit of $300,000, but not to exceed the limits for personal injury set forth in the basic policy.” See O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019, 1021 n.2 (3d Cir. 1981).

       USF&G paid the estate $1,000,000, which represents the stacked total of $500,000 on each of the two automobiles covered under the Masses’ primary automobile insurance contract.

       We note that this same reasoning obtains in states whose statutes provide for uninsured motorist coverage equal to the minimum amount required by the state financial responsibility law. See, e.g., Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 437 N.E.2d 691 (1982). We conclude, therefore, that the distinction that Mass attempts to draw between statutes that provide for uninsured motorist coverage equal to liability limits and those that provide for only the minimum amount required by law is not dispositive of the question presented.

       Mass conceded at oral argument, however, that if this court upheld the validity of the regulation, it would apply to the personal excess policy issued by USF&G.

       See footnote 2 of the majority opinion for the text of General Statutes § 38-175c.

       As the majority notes, the parties agree that Mass had not requested a reduction in the uninsured motorist coverage from USF&G.

       When General Statutes § 38-175e was amended to require uninsured motorist coverage to equal liability coverage, the intent of the framers was clear. “We have no doubt that the General Assembly contemplated that an insured should make a purposeful and knowing decision to request a lesser amount of [uninsured motorist] coverage. The legislative history of Public Acts 1983, No. 83-461 demonstrates the importance that the legislature attached to specific awareness of the content of the statute: ‘Under subsection 2, it would require each insured who purchases more than the legally required amount of liability insurance would [sic] receive the same amount of uninsured motorist coverage. The insured would have an opportunity to waive in writing the additional uninsured motorist coverage. This change would increase the consumer’s awareness of the value of low-cost uninsured motorist coverage which protects the insured and his family members. Apparently many drivers purchase $100,000.00 or more of liability coverage but leave their uninsured motorist coverage at the minimum of $20,000.00—$40,000.00. Subsection 2 which gives such a driver an increased amount of uninsured motorist coverage, unless he makes a conscious decision not to purchase it. ’ (Emphasis added.) 26 S. Proc., Pt. 9, 1983 Sess., p. 3055, remarks of Senator Wayne A. Baker.” Travelers Indemnity Co. v. Malec, 215 Conn. 399, 403-404, 576 A.2d 485 (1990).

       General Statutes § 38-175c (a) (1) provided in pertinent part: “Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations . . . .” (Emphasis added.)

       Ohio’s uninsured motorist statute; Ohio Rev. Code Ann. § 3937.18 (Baldwin); provided in pertinent part: “(A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in the state unless an equivalent amount of . . . [uninsured motorist] coverage ... is provided therein . . . .”

       In this case, for the same reasons as set forth in my dissent in Curran v. Aetna Casualty & Surety Co., 222 Conn. 657, 671, 610 A.2d 1198 (1992) (Berdan, J., dissenting), I would find that “stacking” does not apply and that there is $1,000,000 of coverage under this excess policy.


source: Caselaw Access Project

author: Glass, J. Berdon, J.,

license: Public Domain

text:
    Colleen Curran v. Aetna Casualty and Surety Company
    (14190)
    Shea, Glass, Covello, Borden and Berdon, Js.
    Argued February 20
    decision released June 9, 1992

      David Thomas Ryan, with whom were Raymond T. DeMeo and Christopher Liebig, for the appellant (plaintiff).

      Joseph F. Skelley, Jr., with whom, on the brief, was Elizabeth A. Schumacher, for the appellee (defendant).
   Glass, J.

The principal issue in this appeal is whether an excess personal liability policy that provides uninsured motorist coverage is subject to the equality requirement of General Statutes § 38-175c. The plaintiff, Colleen Curran, claims that, pursuant to § 38-175c (a) (2), an excess personal liability policy issued to the plaintiff’s father by the defendant, Aetna Casualty and Surety Company (Aetna), must provide uninsured motorist coverage equal to the liability limits of the policy. The trial court determined that because the excess personal liability policy provided that the insured maintain underlying automobile liability insurance, it was not required to provide uninsured motorist coverage under § 38-175c. Relying on our decision in Mass v. United States Fidelity & Guaranty Co., 222 Conn. 631, 610 A.2d 1185 (1992), we affirm the judgment of the trial court.

The facts are not in dispute. On April 22, 1987, the plaintiff was seriously injured when the automobile she was driving was struck head on by an automobile owned and operated by John F. Henry. The trial court found that the accident was caused by the negligence of Henry. Henry’s insurance carrier paid the plaintiff $50,000, the full amount of Henry’s automobile liability coverage. The automobile operated by the plaintiff was one of three automobiles owned by her father, Ward S. Curran (Curran), each of which was insured under an automobile liability insurance policy (primary policy) issued by Aetna. The plaintiff was an insured under the primary policy at the time of the accident. Although the personal injury liability limit was $300,000, Curran had in writing selected a lesser amount of uninsured motorist coverage. Separate premiums for liability, uninsured motorist, comprehensive and collision coverage were charged for each vehicle under the primary policy.

At the same time that Curran purchased the primary policy from Aetna, he also purchased an excess personal liability policy (excess policy), which provided personal liability coverage of $1,000,000. The excess policy also specifically provided a limit of $25,000 per occurrence for uninsured motorist coverage. The declarations to the excess policy required that the insured maintain “primary insurance” for automobile liability coverage for “all automobiles owned by, leased to or regularly used by the insured” with limits of $300,000 per occurrence. The excess policy provided that “[Aetna] will only pay for the amount of loss which is . . . above the required primary insurance limits; and . . . above any other insurance collectible for an occurrence.” Curran paid a basic premium of $102 for the excess policy, which included “one auto and primary residence.” He paid an additional premium of $40 for two “additional vehicles—designed for road use.”

After exhausting the personal injury liability coverage under Henry’s automobile liability policy, the plaintiff sought uninsured motorist coverage under the primary policy. The stated uninsured motorist liability limit was $40,000, which, after the coverage for the three insured automobiles was “stacked,” provided a total of $120,000 in uninsured motorist coverage. The $50,000 paid to the plaintiff under Henry’s automobile liability policy was deducted from the $120,000 available under the primary policy. The plaintiff was also paid $5000 in basic reparations benefits pursuant to the primary policy. Aetna thus paid the plaintiff a total of $65,000 under the primary policy.

Thereafter, the plaintiff sought uninsured motorist benefits under the excess policy. Aetna maintained that its uninsured motorist liability under the excess policy did not exceed $25,000. The plaintiff commenced this action against Aetna, alleging, inter alia, breach of contract and a violation of applicable Connecticut law in that Aetna had failed to provide uninsured motorist coverage equal to the liability limit of $1,000,000 in the excess policy. The plaintiff and Aetna filed motions for summary judgment on the legal issue of uninsured motorist coverage under the excess policy. The trial court reserved decision on these motions pending the jury’s determination of damages for the plaintiff’s injuries.

After a trial to a jury, the jury determined that fair, just and reasonable compensation for all of the plaintiffs injuries resulting from the accident was $300,000. During the course of the trial, Aetna filed an offer of judgment for $25,000. Thereafter, the trial court granted Aetna’s motion for summary judgment, holding that the excess policy was not subject to the requirements of § 38-175c. Accordingly, the trial court rendered judgment for the plaintiff in the amount of $25,000. The plaintiff subsequently filed a motion to set aside the jury’s verdict, which the trial court denied. This appeal to the Appellate Court followed. We transferred the appeal to this court pursuant to Practice Book § 4023. Thereafter, in response to this court’s order for articulation, the trial court issued a supplemental memorandum of decision, in which it concluded that the $25,000 of uninsured motorist coverage provided by the excess policy was not subject to stacking.

On appeal, the plaintiff raises the following issues: (1) whether § 38-175c (a) (2) is applicable to and governs the automobile coverage in the excess policy issued by Aetna; (2) whether excess liability insurance policies that provide uninsured motorist coverage are exempt from the equality requirement of § 38-175c (a) (2); (3) whether the trial court properly determined that uninsured motorist coverage under the excess policy cannot be stacked; (4) whether the trial court’s evidentiary rulings and jury charge on issues relating to the nature and extent of the plaintiffs injuries were proper; and (5) whether the trial court’s evidentiary rulings and jury charge on issues relating to the amounts received by the plaintiff from collateral sources were proper.

I

The plaintiff’s first and second claims may be treated as one issue: whether the trial court properly concluded that the uninsured motorist coverage in the excess policy was not subject to the equality requirement of § 38-175c. In ruling on the parties’ motions for summary judgment, the trial court concluded that because the excess policy contained an “underlying insurance requirement,” it was not required to provide uninsured motorist coverage in accordance with § 38-175c. We agree.

Pursuant to § 38-175c (a) (2), an insurer is required to provide an insured with uninsured motorist coverage equal to the amount of automobile liability coverage purchased unless the insured requests a lesser amount in writing, although in no event may an insured elect less than the statutory minimum set forth in General Statutes § 14-112 (a). The plaintiff argues that because the excess policy covers liability for damages arising out of the ownership or use of Curran’s three automobiles, it is an “automobile liability policy” within the meaning of § 38-175c and, therefore, must provide uninsured motorist coverage equal to the liability limit of $1,000,000. The plaintiff distinguishes this court’s holding in Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 569 A.2d 544 (1990), on the basis that the policy involved in that case was, by its terms, an indemnity policy, whereas the excess policy purchased by Cur-ran provided liability coverage. In support of her argument, the plaintiff refers us to decisions in other jurisdictions holding that excess or umbrella policies must provide uninsured motorist coverage pursuant to the applicable uninsured motorist statute.

In Mass v. United States Fidelity & Guaranty Co., supra, we considered whether a personal excess policy that provided for liability and contained no provision for uninsured motorist coverage was an “automobile liability policy” within the meaning of § 38-175c. We stated that “excess or umbrella policies . . . serve a purpose distinct from that served by policies that exclusively cover liability from damages arising out of the ownership, maintenance or operation of an automobile.” Id., 640. Therefore, the fact that the Masses’ excess policy provided, among other coverages, coverage for automobile liability did not convert it into an automobile liability policy within the meaning of § 38-175c. We concluded that the language of the personal excess policy indicated that it was intended as “excess insurance designed solely to protect [the Masses] from the infrequent occurrence of catastrophic judgments against [them.]” (Internal quotation marks omitted.) Id., 640. We are persuaded that the excess policy in the present case was intended to serve a similar purpose, and, accordingly, is not an automobile liability policy within the meaning of the uninsured motorist statute.

In contrast to the personal excess policy at issue in Mass, however, the excess policy in this case specifically provided coverage for uninsured motorist claims. Under the excess policy, Aetna agreed to pay for “personal injury sustained by an insured in an auto accident for which that insured has a legal right to recover from the owner or operator of an uninsured auto or an underinsured auto.” The excess policy provided, however, that Aetna’s “responsibility to pay is subject to the terms and conditions of the uninsured or underinsured motorists coverage in [the insured’s] primary insurance policy.” Pursuant to the excess policy, Aetna agreed to pay “the amount of loss in excess of the greater of either: (a) the total amount of insurance any insured is entitled to receive under any other uninsured, underinsured motorists or auto liability insurance; or (b) the minimum limit for bodily injury liability required by law in the state in which the accident occurs.” The excess policy specifically excluded coverage for “any claim under the uninsured or underinsured motorists coverage for personal injury to any insured who does not have any underlying uninsured or underinsured motorists insurance, if such insurance was rejected by or for the insured,” and “any uninsured or underinsured motorists personal injury claim not covered by the uninsured or underinsured motorists coverage contained in the primary insurance policies.” (Emphasis added.) Finally, the excess policy provided that “[t]he limit of liability shown on the Declarations for this coverage is the most [Aetna] will pay for any one occurrence . . . regardless of the number of (a) insureds; (b) claims made; or (c) vehicles involved in the auto accident.” The declarations to the excess policy limited Aetna’s liability for uninsured motorist claims to $25,000 per occurrence after the deduction of a “retained limit.”

In O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019 (3d Cir. 1981), the plaintiff sought reformation of an umbrella policy, denominated a “Personal Catastrophe Plan,” that provided uninsured motorist coverage up to $35,000 after the deduction of a “retained limit.” The United States Court of Appeals for the Third Circuit concluded that Delaware’s uninsured motorist statute did not require the umbrella policy to provide uninsured motorist coverage equal to the statutory limits of $300,000. The court stated: “Policies such as the [insurer’s] umbrella policy . . . with respect to their automobile coverages, would not exist but for underlying primary auto policies to which they provide excess liability insurance. Primary insurance policies . . . by their very existence, provide insureds with all the benefits accorded under [the uninsured motorist statute]. To place umbrella policies within the ambit of [the uninsured motorist statute] would be to apply that section to require [uninsured motorist] coverage in addition to that provided by primary policies. We do not believe that [the uninsured motorist statute] can be so read, and hold that it is not applicable to policies that provide excess liability insurance.” Id., 1027.

Like the umbrella policy at issue in O’Hanlon, the excess policy in this case expressly limited the amount of uninsured motorist coverage. The excess policy required the insured to maintain underlying primary insurance coverage for automobile liability with limits of $300,000 per occurrence. Moreover, the excess policy effectively required the insured to maintain uninsured motorist coverage in that it excluded coverage for uninsured motorist claims if the insured had rejected uninsured motorist coverage under the primary policy or if the primary policy did not cover the particular claim. Curran obtained the requisite primary automobile liability coverage, but selected uninsured motorist coverage of only $40,000 per accident, as permitted by § 38-175C (a) (2).

The excess policy, by its terms, provided coverage for specified catastrophic liability risks over and above the primary or underlying insurance risk. The limitation of uninsured motorist coverage to $25,000 in the excess policy did not affect Aetna’s obligation, pursuant to § 38-175c, to provide uninsured motorist coverage equal to liability coverage in the primary policy. Curran, however, waived the equality requirement of § 38-175c (a) (2) when he purchased reduced uninsured motorist coverage under the primary policy. Because we conclude that the excess policy is not an automobile liability policy within the meaning of § 38-175c, the parties were free to contract for uninsured motorist coverage under the excess policy without regard to the statutory requirements. We are persuaded that the primary policy provided the plaintiff with all the benefits accorded her by § 38-175c, and, therefore, that the statute had been satisfied before the plaintiff sought uninsured motorist coverage under the excess policy.

II

The plaintiff also claims that the trial court improperly concluded that the uninsured motorist coverage provided by the excess policy was not subject to stacking. Aetna argues that the trial court’s conclusion was correct because the excess policy is not an automobile liability policy under § 38-175c. Our disposition of the plaintiff’s first two claims leaves only the question of whether the $25,000 of uninsured motorist coverage specifically provided by the excess policy may be stacked. We conclude that because the excess policy is not an automobile liability policy within the meaning of § 38-175c, the doctrine of stacking does not apply.

Intrapolicy stacking is the aggregation of the limits of liability for uninsured motorist coverage of each automobile covered under one insurance policy. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388-89 n.2, 446 A.2d 1059 (1982). This court has permitted intrapolicy stacking where each of several vehicles insured pursuant to one policy was separately described and individual premiums were charged for uninsured motorist coverage of each vehicle. See, e.g., Dixon v. Empire Mutual Ins. Co., 189 Conn. 449, 453, 456 A.2d 335 (1983); Nationwide Ins. Co. v. Gode, supra, 394-97; Safeco Ins. Co. v. Vetre, 174 Conn. 329, 333-35, 387 A.2d 539 (1978). While § 38-175c does not expressly address stacking, we have repeatedly held that the statute does not prohibit aggregation of coverage. Cohn v. Aetna Ins. Co., 213 Conn. 525, 529, 569 A.2d 541 (1990).

The rationale behind permitting stacking derives in large part from the reasonable expectations of the parties to the insurance contract. u ‘[W]hen the named insured purchases uninsured motorist coverage on more than one automobile, he intends to buy extra protection for himself and his family, regardless of whether his injury occurs in any one of his insured vehicles or elsewhere.’ ” Id., 529-30. We have limited stacking of uninsured motorist coverage, however, to insurance policies that provide coverage exclusively for automobile liability, and thus fall within the ambit of § 38-175c. See Nicolletta v. Nationwide Ins. Co., 211 Conn. 640, 560 A.2d 964 (1989); Dixon v. Empire Mutual Ins. Co., supra; Nationwide Ins. Co. v. Gode, supra; Safeco Ins. Co. v. Vetre, supra. We discern no persuasive reason to permit the stacking of uninsured motorist coverage under excess or umbrella policies, such as the policy in the present case, when we have held that such policies are not governed by § 38-175c.

The trial court awarded the plaintiff $25,000 in uninsured motorist coverage pursuant to the excess policy. The defendant had filed an offer of judgment for this amount. In addition, it is undisputed that the plaintiff has received the total amount of uninsured motorist coverage available to her under the primary policy. Because § 38-175c (b) (1) limits Aetna’s liability to the amount of uninsured motorist coverage available; see footnote 2, supra; we need not address the plaintiff’s other claims.

The judgment is affirmed.

In this opinion Shea, Covello and Borden, Js., concurred.

Berdon, J.,

dissenting in part and concurring in part. I disagree with the majority in part I of its opinion. The excess liability policy is clearly an automobile liability policy and subject to the mandatory uninsured motorist coverage under General Statutes § 38-175c (now recodified as § 38a-336). See Mass v. United States Fidelity & Guaranty Co., 222 Conn. 631, 650-56, 610 A.2d 1185 (1992) (Berdon, J., dissenting).

In regard to part II of the decision, although I agree that pursuant to the terms of this excess liability policy there is no stacking, it is not because the policy fails to come within the mandatory uninsured motorist coverage under § 38-175c. Rather, I agree that there was no expectation of stacking on the part of the insured because the contractual uninsured motorist coverage in this case fails to describe separately the automobiles and assess individual premiums. See Dixon v. Empire Mutual Ins. Co., 189 Conn. 449, 453, 456 A.2d 335 (1983); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 396, 446 A.2d 1059 (1982).

Accordingly, I dissent in part I and concur in the result in part II.

       Throughout this opinion, the term uninsured motorist coverage encompasses underinsured motorist coverage as well.

       In 1991, General Statutes § 38-175a et seq. was recodified as § 38a-334 et seq. We shall refer herein to the former statutory section numbers, cross-referencing the new section numbers where appropriate. General Statutes § 38-175c (now § 38a-336) provides: “(a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” (Emphasis added.)

       The declarations also required the insured to maintain primary insurance with specified liability limits for comprehensive personal liability, watercraft liability, recreational vehicle liability and rental premises liability. The excess policy defined “primary insurance” as “the types of insurance policies shown on the Declarations that pay for a loss before this policy pays.”

       Because Curran received a credit of $28, he paid a total premium of $114 for the excess policy during the relevant policy period.

       “Stacking refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate. . . . Intra-policy stacking is the aggregation of the limits of liability for uninsured-motorist coverage of each car covered in one policy . . . .” (Citations omitted; internal quotation marks omitted.) Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388-89 n.2, 446 A.2d 1059 (1982). Aetna does not dispute that the plaintiff was entitled to stack uninsured motorist coverage under the primary policy.

       General Statutes § 14-112 (a) provides in pertinent part: “To entitle any person to receive or retain a motor vehicle operator’s license or a certificate of registration of any motor vehicle when, in the opinion of the commissioner, such person has violated any of the provisions of section 14-222, section 14-224 or subsection (a) of section 14-227a or any similar provision of the laws of any other state or any territory, or who has been convicted of, or has forfeited any bond taken for appearance for, or has received a suspended judgment or sentence for, a violation of any of said provisions, or who has been held or found criminally responsible in connection with any motor vehicle accident resulting in the death of any person, or who has a record on file with the commissioner which is sufficient, in the opinion of the commissioner, to require evidence of financial responsibility for the reasonable protection of other persons, the commissioner shall require from such person proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, of twenty thousand dollars, or by reason of personal injury to, or the death of, more than one person on account of any accident, of at least forty thousand dollars, and for damage to property of at least ten thousand dollars

         See Aetna Casualty & Surety Co. v. Fulton, 362 So. 2d 364 (Fla. App. 1978), cert. denied, 368 So. 2d 1361 (Fla. 1979); Aetna Casualty & Surety Co. v. Green, 327 So. 2d 65 (Fla. App. 1976), cert. denied, 336 So. 2d 1179 (Fla. 1976); Bartee v. R.T.C. Transportation, Inc., 245 Kan. 499, 781 P.2d 1084 (1989); Southern American Ins. Co. v. Dobson, 441 So. 2d 1185 (La. 1983); Duriak v. Globe American Casualty Co., 28 Ohio St. 3d 70, 502 N.E.2d 620 (1986); Cincinnati Ins. Co. v. Siemens, 16 Ohio App. 3d 129, 474 N.E.2d 655 (1984).

       Pursuant to the excess policy, the “retained limit” is defined as the greatest of: (a) the minimum limits of primary insurance the insured must maintain, as indicated in the declarations; or (b) the total limits of the primary insurance policies or other insurance available that apply to the occurrence.

       In an affidavit submitted with the plaintiff’s motion for summary judgment, Curran acknowledged having elected a limit of $40,000 of uninsured motorist coverage under the primary policy. In addition, the following colloquy took place between Elizabeth Schumacher, counsel for Aetna, and Curran during the latter’s deposition that was presented to the trial court on the plaintiff’s motion for summary judgment:
      “Q. You signed at the time you applied for the underlying automobile policy a document which has been marked here as Exhibit 1, a form in which you elected forty thousand dollars uninsured-underinsured motorist coverage on the three cars that you owned at that time, correct?
      “A. That is correct.
      “Q. Which was a lower amount than the liability limit that you were purchasing under that policy, correct?
      “A. That is correct.”

       The terms of the excess policy specifically provided: “The coverage provided by this policy is always excess over any other collectible insurance which covers personal injury or property damage also covered by this policy. This applies whether the other insurance is stated to be primary, contributing, excess or contingent.”

       The plaintiff argues that because the uninsured motorist coverage in the excess policy is expressly “subject to” the terms and conditions of the primary policy, the excess policy should be construed as an automobile liability policy pursuant to General Statutes S 38-175c. The fact that the excess policy refers to the required primary policy, however, no more converts the excess policy to an automobile liability policy than the reference to underlying homeowners’ insurance converts the excess policy to a homeowners’ policy. In Matarasso v. Continental Casualty Co., 82 App. Div. 2d 861, 862, 440 N.Y.S.2d 40 (1981), aff'd, 56 N.Y.2d 264, 436 N.E.2d 1305, 451 N.Y.S.2d 703 (1982), the Appellate Division of the Supreme Court of New York concluded that the insured’s umbrella policy incorporated the provisions of an underlying automobile liability policy “insofar as they provide for protection against liability for damages to third parties,” and, therefore, did not incorporate underlying uninsured motorist coverage because such coverage did not involve third party claims against the insured. We are similarly persuaded in the present case that “[a]ny other interpretation would distort the actual purpose of the [excess] policy.”

       This court has drawn the line at “fleet” automobile liability policies, however, concluding that stacking was not within the reasonable expectations of the parties to the insurance contract despite the insured’s payment of a separate uninsured motorist premium for each covered vehicle. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 671, 591 A.2d 101 (1991); Cohn v. Aetna Ins. Co., 213 Conn. 525, 530, 569 A.2d 541 (1990).

       The plaintiff contends that whether uninsured motorist coverage may be stacked should depend on the reasonable expectations of the parties to the insurance contract, not whether the contract is an automobile liability policy pursuant to General Statutes § 38-175c. The plaintiff argues that because additional premiums for two extra vehicles were paid under the excess policy, the insured could reasonably have expected that uninsured motorist coverage would be stacked. By its terms, however, the excess policy covers liability of the insured to third parties after primary policy liability limits have been exhausted. Furthermore, in deposition testimony that was presented to the trial court on Aetna’s motion for summary judgment, Cur-ran acknowledged that the insurance agent who sold him the primary and excess policies represented that the $25,000 of uninsured motorist coverage in the excess policy was an “extra.” Finally, unlike the primary policy’s declarations, which described each automobile covered and indicated the uninsured motorist premium for each, the declarations to the excess policy did not designate the additional premium charged or a portion thereof for uninsured motorist coverage of the two extra vehicles. In light of the foregoing evidence, we are satisfied that the reasonable expectations of the insured are not frustrated by our decision not to permit stacking under the excess policy in this case.