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Piersa v. Phoenix Insurance Co.5/10/2005
86. It would be consistent with the defendant's obligations as an insurer under § 38a-371 (c) and with that uniform legislative scheme to require the defendant to create a written document specifying its selected reductions in limits, because a commercial insurer must specify those reductions in limits in its written insurance policy in order to take advantage of them. Similarly, it would be inconsistent with those obligations and that scheme to permit the defendant to take advantage of all of those limits by remaining silent with respect to them, because a commercial insurer would not be able to do so in that fashion.
The second reason is closely related to the first. We have consistently held that, with respect to a commercial insurer, " hen an insurer seeks to limit its liability for uninsured or underinsured motorist coverage based on the regulation issued pursuant to [§ 38a-336], it may do so only to the extent that the regulation expressly authorizes." (Internal quotation marks omitted.) Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 674, 591 A.2d 101 (1991). "In order for a policy exclusion to be expressly authorized by statute [or regulation], there must be substantial congruence between the statutory [or regulatory] provision and the policy provision. . . . Lowrey v. Valley Forge Ins. Co., 224 Conn. 152, 156, 617 A.2d 454 (1992)." Vitti v. Allstate Ins. Co., 245 Conn. 169, 176, 713 A.2d 1269 (1998); see also Chmielewski v. Aetna Casualty & Surety Co., supra, 674. Indeed, in Chmielewski, we refused to recognize such a substantial congruence because, although there were substantial similarities between the policy language and the regulation, there were also substantial dissimilarities. Chmielewski v. Aetna Casualty & Surety Co., supra, 675.
It would be anomalous to require a commercial insurer to use policy language substantially congruent to the limits specified in the regulation in order for it to take advantage of those limits, but to permit a self-insurer to take advantage of those limits by using no language at all--to do so by silence, as the defendant urges. To do so would not be to create a uniform scheme governing commercial and self-insurers; it would, instead, be to create a scheme that gave self-insurers vastly more leeway to reduce their limits than their commercial insurer counterparts. Put another way, under such a scheme, self-insurers would not be the functional equivalent of commercial insurers; they would, instead, be the functional superiors of commercial insurers.
Furthermore, the defendant conceded at oral argument before this court that, under its theory of interpretation of § 38a-334-6 of the regulations, by merely notifying the commissioner of its election to be self-insured, it automatically and as a matter of law must be deemed to have selected both the minimum coverage and all permitted reductions in limits. Thus, the defendant maintains that, although in its letter to the commissioner the defendant specifically selected the minimum coverage of $20,000 per person and $40,000 per accident, it was not necessary for it to specify those minimum limits in order to select the minimum coverage; by simply notifying the commissioner that it was electing to be self-insured, its coverage automatically would be the minimum along with all permitted reductions in limits. We are not persuaded that this is so. Given that a self-insurer may elect to maintain coverage that is more than the minimum required by statute, we do not see why its notice to the commissioner of self-insurance necessarily means that it is selecting the minimum coverage. Although the minimum coverage would be less expensive to a self-insured employer, such as the defendan
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