Piersa v. Phoenix Insurance Co.5/10/2005
-insurers in order for them to be obligated for only the minimum coverage for uninsured motorist benefits. In this connection, the defendant relies principally on two decisions of the Appellate Court, namely, Boynton v. New Haven, 63 Conn. App. 815, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001), and Serra v. West Haven, 77 Conn. App. 267, 822 A.2d 1018 (2003). We, of course, are not bound by decisions of the Appellate Court. Irrespective of that consideration, however, we disagree that those decisions persuasively support the defendant's interpretation of the regulation at issue.
In Boynton, the plaintiff police officer, who had been injured by an underinsured motorist, sought to recover the unpaid portion of his damages from the defendant city, which was self-insured. The city had given notice of its self-insured status to the commissioner but, as of the date of the plaintiff's injuries, had not put any limits on its coverage in any written document, including its notice to the commissioner. Boynton v. New Haven, supra, 63 Conn. App. 819-20. The plaintiff argued that: (1) under the principle of parity between liability and underinsured motorist coverage, because the city's liability was unlimited, its underinsured motorist coverage was also unlimited; and (2) the city could not invoke minimum coverage without some kind of written waiver or notice. Id., 826. The Appellate Court disagreed with both arguments. Id.
With respect to the first argument, the court concluded that the principle of parity did not require the city to provide unlimited underinsured motorist coverage because, in the court's view, that proposition was based on (1) General Statutes § 14-129, a linkage that this court specifically had ruled against in Willoughby v. New Haven, supra, 254 Conn. 434, and (2) the text of § 38a-336 (a) (2), which, although it does require such parity, the court concluded that it did not require unlimited coverage because the exposure of commercial insurers was not unlimited. Boynton v. New Haven, supra, 63 Conn. App. 826-27. We are not persuaded by this reasoning.
In Boynton, the Appellate Court dismissed, in a footnote, a different argument of the plaintiff for parity, based on this court's decision in Travelers Indemnity Co. v. Malec, 215 Conn. 399, 402, 576 A.2d 485 (1990). Boynton v. New Haven, supra, 63 Conn. App. 826 n.20. We conclude, however, that the Appellate Court's treatment of that claim of the plaintiff in Boynton was misguided.
In Malec, this court, in reviewing an underinsured motorist arbitration award, noted that our statutory uninsured and underinsured motorist scheme was designed to require parity between an insured's liability and uninsured motorist coverage. We stated: "Prior to the enactment of [General Statutes] § 38-175c [now § 38a-336]; 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 in original.) Travelers Indemnity Co. v. Malec, supra, 215 Conn. 402-403. The Appellate Court in Boynton rejected this statement as "not helpful because it arose in the context of an arbitration award. In light of the limited scope of judicial review of arbitration awards; American Universal
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