Attorney James Moher Obtained Favorable Outcome When UIM Carrier Was Bound by an Arbitration Decision in Which It Did Not Participate
Attorneys Moher and Bullard addressed this issue of the impact that an arbitration decision has on an underinsured motorist (UIM) carrier when the carrier does not participate in the arbitration.
In the matter of Femie Zhuta v. Banita Brewer et al. UWY-CV12-013992-S, HKSF represents the underinsured motorist carrier for the plaintiff. The plaintiff brought suit against the carrier prior to concluding their action against the underlying tortfeasor. Subsequent to bringing the UIM suit, the plaintiff and underlying tortfeasor agreed to arbitration. The UIM Carrier was not party to the arbitration. The arbitration decision awarded the plaintiff $115,267.22 in damages, exhausting the tortfeasor’s $100,000.00 policy. On behalf of the carrier, Attorneys Moher and Bullard filed a motion for summary judgment, requesting that judgment enter against the carrier in the amount of $15,257.22, minus any collateral source reductions or other set-off, deduction, or limitation pursuant to the common-law doctrine of collateral estoppel recognized by the Appellate Court in Marques v. Allstate Ins. Co., 140 Conn. App. 337 (2013).
While the motion was pending, however, the legislature enacted Public Act 14-156, § 1, limiting the applicability of collateral estoppel in civil actions involving bodily injury arising from motor vehicle accidents. The Public Act also states that “the court, at the request of all parties to the civil action, may refer the matter to an arbitrator…the finding of [whom] shall be binding upon the parties to the civil action exclusively for the purposes of such civil action. The damage award, if any,…shall not be used by or against any party to the arbitration in any subsequent civil action of proceeding.”
Attorneys Moher and Bullard argued, inter alia, that because the UIM carrier did not request the arbitration and it was not judicially-referred, it did not fall within the statute. The court, Zemetis, J., agreed. (Counsel also argued that statutes in derogation of the common law are narrowly construed, though the court did not address that point.) At this juncture, Attorneys Moher and Bullard have requested a collateral source hearing and are working to clarify what reductions or set-offs may apply to the $15,257.22 award pursuant to the plaintiff’s use of a medical payment provision and other adjustments and insurance payments. Stay tuned for further update.
James M. Moher