Coghlan v. Concord General Mutual Insurance Co., No. S0184-03 Cnc
(Norton, J., July 20, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT                                      SUPERIOR COURT
Chittenden County, ss.:                           Docket No. S0184-03 CnC



COGHLAN

v.

CONCORD GENERAL MUTUAL
INSURANCE COMPANY



                                 ENTRY
                        (Motion for reconsideration)

        Plaintiff Audrey Coghlan seeks a reconsideration or, in the
alternative, an interlocutory appeal from an entry of this court, dated May 2,
2005. Ms. Coghlan is an insured motorist who was involved in an accident
with defendant Richard Knight. Following the accident Mr. Knight’s
liability insurer denied coverage. Ms. Coghlan sought coverage from her
own uninsured motorist policy. Through this policy, defendant Concord
General paid for Ms. Coghlan’s medical bills and property damages. Ms.
Coghlan, however, sought further damages. She sued Concord General, on
the uninsured motorist policy, and Mr. Knight to prove his liability and her
damages. Two years later, Concord General learned that Mr. Knight’s
insurance policy was not properly cancelled. It contacted Mr. Knight’s
insurance company, who reimbursed Concord General and agreed to cover
Mr. Knight for this accident up to the limits of his policy.

      On motion for summary judgment, Concord General sought to
dismiss Ms. Coghlan’s uninsured motorist claim against it, in light of these
changed circumstances. This court accepted those arguments based on
sound legal precedent and a clear factual record.

       The undisputed facts in this case demonstrate that Ms. Coghlan has
       a legal right to recover against Illinois. Illinois has taken actions—
       more than mere words—that make its acknowledgment of liability
       evident. Illinois has reimbursed Concord for money paid to Ms.
       Coghlan and has hired counsel for Mr. Knight. Plainly, Illinois no
       longer denies coverage of Mr. Knight at the time of the accident.
       The court finds no reason to create the legal fiction of a
       constructive denial when Ms. Coghlan has a right of recovery
       against Illinois. “[T]he law does not blind itself to the fact that the
       motor vehicle is, indeed, insured.” Fryer, 365 N.W.2d at 253.

Coghlan v. Concord General Mutual Insurance Co., No. S0184-03 CnC, at
6 (Norton, J., May 2, 2005).

       In its motion for reconsideration, Ms. Coghlan attempts to revive
several arguments that were impliedly rejected by this court in the previous
entry. First, Ms. Coghlan argues that Concord General waived its right to
dismiss by not acting with due diligence to establish the true status of Mr.
Knight’s insurance coverage. Apart from the two year delay between the
initial denial by Mr. Knight’s insurer and its eventual reconsideration, Ms.
Coghlan presents no credible evidence to support this claim. As Concord
General has shown, this delay was the result of bureaucratic delays and the
slow accumulation of evidence disputing the initial denial. Without any
further evidence to support her bald assertion, Ms. Coghlan’s waiver and
due diligence arguments fail. Samplid Enterp., Inc. v. First Vt. Bank, 165
Vt. 22, 25 (1996) (allegations must be supported by specific facts sufficient
to create a genuine issue of material fact).

       Ms. Coghlan’s second argument is that Concord General cannot be
dismissed until she says they can. See, e.g., Rister v. State Farm Mut. Auto
Ins. Co., 668 S.W.2d 132, 136–37 (Mo. App. 1984) (noting that a mere
settlement offer after initial denial only conditionally ends a liability
insurer’s denial). Ms. Coghlan’s argument, however, misinterprets the case
law and this court’s prior entry. In Rister, the Missouri Court Appeals was
quite clear in its reasoning that an unequivocal withdrawal of denial ends an
uninsured motorist claim as a matter of law. Id. at 136. In that case,
however, because the reversal came in an offer of a settlement—an
equivocal withdrawal—the court held that the plaintiff would have to
accept the offer before it would constitute an effective withdrawal of denial.
Id. This has more to do with the nature of settlement offers than insurance
coverage. In the present case, Mr. Knight’s liability insurer has made an
express and unconditional withdrawal of its initial denial. It has also made
reimbursement payments on his policy to cover some of Ms. Coghlan’s
damages, and it has put in a representation on Mr. Knight’s behalf with this
court. Together these actions effectively show that Mr. Knight is insured
and that an uninsured motorist claim is inappropriate as a matter of law.
        Finally, Ms. Coghlan seeks an interlocutory appeal on the issues of
waiver and a liability insurer’s withdrawal of denial. V.R.A.P. 5(b)(1).
Such an appeal is not proper at this time. While this case does pose some
questions of first impression for a Vermont court, their resolution will not
materially advance the litigation. State v. Dubois, 150 Vt. 600, 603 (1988).
The central issues in this case is whether Mr. Knight is liable for Ms.
Coghlan’s injuries and what those injuries are. The answer to these
questions are the dispositive issues in this litigation. If it is found that Mr.
Knight is not liable to Ms. Coghlan or is only liable to amounts that have
been paid, then the uninsured motorist issue becomes moot. If Mr. Knight
is found liable and found so in excess of his policy, Ms. Coghlan’s will
either receive compensation from her under-insured motorist policy or will
be free to make such a claim. This policy, as the previous entry noted, is
for the same amount as her uninsured motorist policy. Even if the Supreme
Court later reversed this court’s decision about uninsured motorist, the
adjudication of liability and damages would make the resulting reversal
more or less a technical application of damages to policies. Regardless, any
of these results promise to resolve the litigation in a substantial manner.

         On the other hand, if the Supreme Court decides the uninsured
motorist question now, the parties would still be left to litigate the issues of
liability and damages. Thus, there would be no substantial impact on the
purpose of this litigation either in terms of time, range of issues, or defenses
at trial. State v. University of Vermont, 149 Vt. 663, 664 (1988) (mem.).
In fact, re-opening the uninsured motorist issue promises only further
filings, issues, and defenses. Therefore, an interlocutory appeal would
inappropriate at this time and would frustrate, rather than support, the
purposes of Apellate Rule 5.
       Based on the foregoing, Plaintiff’s motion for reconsideration or
interlocutory appeal is Denied.

      Dated at Burlington, Vermont________________, 2005.




                                        _____________________________
