*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
WILSON PUENTE v. PROGRESSIVE

NORTHWESTERN INSURANCE

COMPANY

(AC 39708)

Lavine, Prescott and Elgo, Js.

Syllabus

The plaintiff, who had sustained injuries when a motor vehicle operated by

a third party struck him after he had exited and stepped away from his

vehicle, sought to recover underinsured motorist benefits allegedly due

under a policy of automobile insurance issued by the defendant to the

plaintiff’s business, W Co. The trial court granted the defendant’s motion

for summary judgment and rendered judgment thereon, from which the

plaintiff appealed to this court. The plaintiff claimed that there were

genuine issues of material fact as to whether the policy provided underinsured coverage to him personally, regardless of whether he was occupying the vehicle, and as to whether he was ‘‘occupying’’ the insured

vehicle within the meaning of the policy when he sustained his injuries.

Held that the trial court properly granted the defendant’s motion for

summary judgment, there having been no genuine issue of material fact

regarding the defendant’s obligation to the plaintiff under the terms of

the insurance contract: that court properly determined that the policy

unambiguously provided that W Co. and not the plaintiff was the named

insured, as there was no ambiguity in the policy language as to whether

‘‘insured’’ referred to the plaintiff personally or to W Co. where, as here,

the declarations page of the policy listed W Co. as the named insured,

the use of the term ‘‘you’’ did not create ambiguity in that the term

referred to the named insured shown on the declarations page, which

was W Co., and the policy provided further that when the named insured

was not a natural person, the policy covered only individuals who were

occupying the insured vehicle; moreover, the plaintiff failed to raise a

genuine issue of material fact as to whether he was ‘‘occupying’’ an

insured vehicle when he sustained his injuries, as the relevant underinsured motorist statute (§ 38a-363 [c]) defined ‘‘occupying’’ a vehicle as

‘‘to be in or upon entering into or alighting from the vehicle,’’ which

required physical contact with the insured vehicle, that definition was

consistent with, although not identical to, the language of the policy in

the present case, which defined ‘‘occupying’’ as ‘‘in, on, entering or

exiting’’ the insured vehicle, although the policy at issue in the present

case used the term ‘‘exiting’’ rather than ‘‘alighting’’ in defining the word

‘‘occupying,’’ it was nevertheless clear from case law that ‘‘occupying’’

a vehicle requires physical contact, which supported the trial court’s

construction of the policy to require physical contact with the insured

vehicle in order to trigger coverage, and it was undisputed here that

the plaintiff, who had stepped out of the insured vehicle and walked

past the rear of that vehicle before he was struck, was not in physical

contact with the vehicle when he was injured.

Argued February 1—officially released May 15, 2018

Procedural History

Action to recover damages for underinsured motorist

benefits allegedly due under a policy of automobile

insurance issued by the defendant, and for other relief,

brought to the Superior Court in the judicial district of

Stamford, where the court, Povodator, J., granted the

defendant’s motion for summary judgment and rendered judgment thereon, from which the plaintiff

appealed to this court. Affirmed.

John C. Turner, Jr., for the appellant (plaintiff).
John W. Cannavino, Jr., with whom, on the brief,

was Alexandra J. Zeman, for the appellee (defendant).
Opinion

PRESCOTT, J. In this action to recover underinsured

motorist benefits pursuant to an insurance policy issued

by the defendant, Progressive Northwestern Insurance

Company, to Wilson Roofing, LLC (Wilson Roofing),

the plaintiff, Wilson Puente, appeals from the judgment

of the trial court granting the defendant’s motion for

summary judgment. The plaintiff claims that the trial

court improperly granted the motion because a genuine

issue of material fact existed regarding whether (1) he

was a named ‘‘insured’’ within the meaning of the policy

issued to Wilson Roofing or (2) even if he was not the

named insured, he is still entitled to recover pursuant

to the policy because he was ‘‘occupying’’ a vehicle

covered by the policy when he sustained his injuries.

We affirm the judgment of the trial court.

The record reveals the following facts and procedural

history. The plaintiff alleged in his complaint that he

was occupying or in the process of exiting a 2001 GMC

Savana G3500 in a parking lot in Norwalk when Cristian

Zuna, a nonparty, struck him with her 2008 Honda

Accord, causing him to suffer injuries. The plaintiff

further alleged that any damages he suffered as a result

of the accident were covered under a commercial auto

policy through which the defendant provided uninsured/underinsured motorist coverage to the plaintiff’s

business, Wilson Roofing.

On May 6, 2016, the defendant filed a motion for

summary judgment in which it argued that there is no

genuine issue of material fact regarding whether (1)

the plaintiff was insured under the policy because he

was not ‘‘occupying’’ the vehicle at the time of the

accident, and (2) the vehicle was not an ‘‘insured auto’’

under the policy. The plaintiff filed a motion in opposition to the motion for summary judgment arguing that

there was a genuine issue of material fact as to whether

he was the named insured within the meaning of the

policy or that he was ‘‘occupying’’ an insured vehicle

at the time he sustained his injuries.

At his deposition, a transcript of which the defendant

attached as an exhibit to its motion for summary judgment, the plaintiff testified that he operates a home

improvement company known as Wilson Roofing and

Siding, LLC, which has four or five employees.1 On the

morning of May 15, 2014, the plaintiff drove to a parking

lot at Rick’s Main Roofing at 26 Fitch Street in Norwalk.

The plaintiff worked for Rick’s Main Roofing as a subcontractor and had two assigned parking spaces in that

lot. The plaintiff left for a job assignment and returned

to the parking lot at Rick’s Main Roofing sometime

between 3 and 3:30 p.m. The plaintiff parked his vehicle

with the front end of his vehicle facing into the parking

space.2 He gathered the papers he needed to take into

Rick’s Main Roofing, stepped out of the vehicle, and
walked toward the rear of the vehicle. After he walked

past the rear of his vehicle, he noticed a Honda Civic

traveling toward him and was forced to jump onto the

front end of the Honda to avoid being hit. He suffered

injuries to his left foot after it was caught under the

front end of the Honda Civic.

It is undisputed that the commercial auto insurance

policy issued by the defendant to the plaintiff, which

was in effect at the time of the accident, provided coverage for some of Wilson Roofing’s vehicles. The declarations page of that policy states that the defendant

provided commercial auto insurance coverage and that

the ‘‘named insured’’ was ‘‘Wilson Roofing, LLC.’’

Following a hearing, the court granted the defendant’s motion for summary judgment. The court concluded that the language of the policy was unambiguous

and that there was no genuine issue of material fact

regarding whether the plaintiff was a named insured

within the meaning of the policy. Specifically, the court

concluded as a matter of law that Wilson Roofing, and

not the plaintiff, was the named insured under the policy. The court also concluded that, even if he was not

the named insured, the plaintiff had failed to raise a

genuine issue of material fact that he was still entitled

to recover pursuant to the policy language that extends

coverage to persons ‘‘occupying’’ a vehicle insured

under the policy because he failed to raise a genuine

issue of material fact that he was ‘‘occupying’’ such a

vehicle when he sustained his injuries. This appeal

followed.

The plaintiff claims on appeal that the court improperly concluded that there was no genuine issue of material fact as to whether (1) the policy provided

underinsured coverage to him personally regardless of

whether he was occupying the vehicle and (2) he was

‘‘occupying,’’ within the meaning of the policy, an

insured vehicle at the time he sustained his injuries.

We are not persuaded.

We first set forth the applicable standard of review.

‘‘In seeking summary judgment, it is the movant who

has the burden of showing the nonexistence of any

issue of fact. . . . Although the party seeking summary

judgment has the burden of showing the nonexistence

of any material fact . . . a party opposing summary

judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together

with the evidence disclosing the existence of such an

issue.’’ (Internal quotation marks omitted.) Rosenfield

v. I. David Marder & Associates, LLC, 110 Conn. App.

679, 684, 956 A.2d 581 (2008).

‘‘Summary judgment shall be granted if the pleadings,

affidavits and any other proof submitted show that there

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.
. . . A fact is material when it will make a difference

in the outcome of a case. . . . The party moving for

summary judgment bears the burden of demonstrating

the absence of any genuine issue of material fact. . . .

The trial court must view the evidence in the light most

favorable to the nonmoving party. . . .

‘‘Appellate review of the trial court’s decision to grant

summary judgment is plenary. . . . [W]e must [therefore] decide whether [the trial court’s] conclusions are

legally and logically correct and find support in the

facts that appear in the record.’’ (Citations omitted;

internal quotation marks omitted.) McFarline v. Mickens, 177 Conn. App. 83, 90, 173 A.3d 417 (2017), cert.

denied, 327 Conn. 997, A.3d (2018).

I

The plaintiff first claims that because the general

definitions section of the policy uses the words ‘‘you’’

and ‘‘relative’’ in defining the term ‘‘insured,’’ the policy

is ambiguous as to whether ‘‘insured’’ refers to the plaintiff’s business or the plaintiff personally.3 He argues that

this ambiguity creates a genuine issue of material fact

as to whether the policy provided underinsured coverage to him personally, regardless of whether he was

occupying the vehicle. We disagree.

‘‘[A]n insurance policy is a contract that is construed

to effectuate the intent of the parties as expressed by

their words and purposes. . . . [U]nambiguous terms

are to be given their plain and ordinary meaning. . . .

As with contracts generally, a provision in an insurance

policy is ambiguous when it is reasonably susceptible

to more than one reading. . . . The determination of

whether an insurance policy is ambiguous is a matter of

law for the court to decide.’’ (Internal quotation marks

omitted.) Travelers Casualty & Surety Co. of America

v. Netherlands Ins. Co., 312 Conn. 714, 740, 95 A.3d

1031 (2014).

The policy contains the following relevant provisions.

In the general definition section, the policy states:

‘‘GENERAL DEFINITIONS . . . .

‘‘5. ‘Insured auto’ or ‘your insured auto’ means:

a. Any auto specifically described on the declarations

page . . .

‘‘9. ‘Occupying’ means in, on, entering or exiting. . . .

‘‘17. ‘You,’ ‘your,’ and ‘yours’ refers to the named

insured shown on the declaration page.’’ (Emphasis

omitted.)

With respect to underinsured motorist coverage, the

endorsement for uninsured and underinsured coverage

provides that, ‘‘[s]ubject to the Limits of Liability, if you

pay the premium for Uninsured/Underinsured Motorist

Coverage, we will pay for damages . . . which an

insured is legally entitled to recover from the owner or
operator of an uninsured auto because of bodily injury:

1. sustained by an insured; 2. caused by an accident;

and 3. arising out of the ownership, maintenance or use

of an uninsured auto.’’ (Emphasis omitted.)

The endorsement contained additional definitions as

follows: ‘‘When used in this endorsement, whether in

the singular, plural or possessive:

‘‘1. ‘Insured’ means:

‘‘a. if the named insured shown on the Declarations

Page is a natural person:

‘‘(i) you or a relative;

‘‘(ii) and person occupying your insured auto . . .

and

‘‘(iii) any person who is entitled to recover damages

covered by this endorsement because of bodily injury

sustained by a person described in (i) or (ii) above; or

‘‘b. if the named insured shown on the Declarations

Page is a corporation, partnership, organization, or any

other entity that is not a natural person:

‘‘(i) any person occupying your insured auto . . .

and

‘‘(ii) any person who is entitled to recover damages

covered by this endorsement because of bodily injury

sustained by a person described in (i) above.’’ (Emphasis omitted.)

As previously discussed, there is no genuine issue of

material fact that the declarations page lists ‘‘Wilson

Roofing, LLC,’’ as the named insured.4

We conclude that the court properly determined that

the policy unambiguously provided that Wilson Roofing

and not the plaintiff was the named insured. The use

of the terms ‘‘you’’ and ‘‘your’’ in the policy does not

create an ambiguity. The general definitions section of

the policy states that ‘‘ ‘you’ ‘your’ and ‘yours’ refer to

the named insured shown on the declarations page.’’

The policy in the endorsement for underinsured motorist benefits provides that if the name listed on the declarations page as the named insured is a corporation,

partnership, organization, or any other entity that is not

a natural person, then the term ‘‘insured’’ means, inter

alia, ‘‘any person occupying your insured auto . . . .’’

Accordingly, the terms ‘‘you’’ and ‘‘your’’ in the policy

refer to Wilson Roofing rather than the plaintiff personally because he is not listed as the named insured on

the declarations page. Furthermore, the section of the

policy that uses the terms ‘‘you or a relative’’ does not

create ambiguity because the policy clearly provides

that those terms apply only if the named insured on

the declarations page is a natural person.

The plaintiff contends that the language in the policy

is ‘‘not entirely clear given the phrasing and placement
of pertinent definitions, including if the named insured

is a natural person and ‘relative’ located in the general

definitions section.’’ He argues that the Supreme Court

in Ceci v. National Indemnity Co., 225 Conn. 165, 622

A.2d 545 (1993), concluded that the policy at issue in

that case was ambiguous as to who was covered under

the underinsured motorist coverage provision:

‘‘According to these provisions, the defendant would

pay for damages caused by an uninsured vehicle. Individuals covered by this provision included: (1) you or

any family member (2) anyone else occupying a covered

auto or a temporary substitute for covered auto. The

policy defined Family member as a person related to

you by blood, marriage or adoption who is a resident

of your household, including a ward or foster child.

The policy defined occupying as in, upon, getting in,

on or off.’’ (Internal quotation marks omitted.) Id., 167.

The court stated that ‘‘[b]y inserting a family member

provision in a business policy, the defendant has left

the [plaintiffs] in the unenviable position of having to

divine the meaning and purpose of the family member

language in the context of the policy. This is precisely

the problem that the rules of insurance policy construction were designed to avoid.’’ Id., 175. The policy in the

present case, unlike that in Ceci, is clear and unambiguous and provides that the named insured is Wilson

Roofing and that if the named insured is not a natural

person then the policy only covers individuals who are

occupying the insured vehicle.

The plaintiff also argues that the policy is ambiguous

because it improperly identifies the named insured as

a corporation rather than a limited liability company.

The declarations page of the policy lists the name

insured as ‘‘Wilson Roofing, LLC,’’ but then states that

‘‘[t]he named insured organization type is a corporation.’’ Regardless of this discrepancy, there is no genuine of material fact that the named insured is not a

natural person, and, as such, is encompassed by the

definition of ‘‘insured’’ that pertains to both limited

liability companies and corporations. In sum, we are

not persuaded by the plaintiff’s first claim on appeal.

II

Because it is clear that the policy covers Wilson Roofing and not the plaintiff personally, in order to be entitled to underinsured motorist coverage under the

policy, the plaintiff was obligated to raise a genuine

issue of material fact as to whether he was ‘‘occupying’’

an insured vehicle at the time he sustained his injuries.

In that regard, the plaintiff claims that the court improperly determined that there was no genuine issue of

material fact regarding whether he was ‘‘occupying’’

the vehicle at the time of the accident. Specifically, he

contends that the court improperly relied on the physical contact test used in Gomes v. Massachusetts Bay

Ins. Co., 87 Conn. App. 416, 431–36, 866 A.2d 704, cert.
denied, 273 Conn. 925, 871 A.2d 1031 (2005), rather than

using a proximity test in determining that the plaintiff

was not occupying the vehicle at the time of the accident. We disagree.

The policy defines ‘‘occupying’’ as ‘‘in, on, entering

or exiting,’’ but the policy does not define the term

‘‘exiting.’’ The definition of ‘‘occupying’’ used by the

policy, however, is consistent with, but not identical to,

the definition set forth in the uninsured/underinsured

motorist statute, General Statutes § 38a-363 (c), which

defines ‘‘occupying’’ a vehicle as ‘‘to be in or upon

entering into or alighting from the vehicle.’’ Our

Supreme Court and this court have interpreted § 38a363 (c) to require physical contact with the insured

vehicle in order for one to ‘‘occupy’’ it. See Testone v.

Allstate Ins. Co., 165 Conn. 126, 328 A.2d 686 (1973);

Allstate Ins. Co. v. Howe, 31 Conn. App. 132, 623 A.2d

1031, cert. denied, 226 Conn. 911, 628 A.2d 983 (1993).

Although the policies at issue in Testone and Howe did

not use the same definition of ‘‘occupying’’ as that set

forth in § 38-363 (c), the respective courts in Testone

and Howe nonetheless required physical contact with

the insured vehicle.

In Testone v. Allstate Ins. Co., supra, 165 Conn. 128–

29, a tow truck operator was injured when an uninsured

vehicle struck a disabled car he was attaching to the

tow truck. The insurances policies covering the tow

truck and the disabled car required the tow truck operator to be ‘‘occupying’’ the vehicle, which was defined

in the policies as ‘‘in or upon or entering into or alighting

from’’ the vehicle. Id., 130–31. Our Supreme Court determined that ‘‘[t]he fact that the plaintiff was near his

employer’s wrecker when injured is of no significance.’’

Id., 131. It concluded that the plaintiff was not occupying the disabled vehicle because he was ‘‘not in physical contact with the [disabled] vehicle and it cannot be

said that he was ‘upon’ that vehicle.’’ Id., 134.

In Allstate Ins. Co. v. Howe, supra, 31 Conn. App.

133–34, an insured sought underinsured motorist coverage after she was struck by a vehicle when she was in

the process of returning to her friend’s vehicle after

that vehicle stopped due to a road accident. To trigger

coverage, the insurance policy at issue required her to

be ‘‘in, on, getting into or out of’’ an insured vehicle.

(Internal quotation marks omitted.) Id., 133. Relying on

Testone, the court concluded that the plaintiff’s physical

contact with the insured vehicle and the fact that she

‘‘was taking steps to reenter the vehicle after only a

brief interruption in her travels related to the operation

of the vehicle’’; id., 140; would ‘‘appear to afford coverage.’’ Id., 138.

The plaintiff argues, however, that because no Connecticut appellate authority has considered a policy,

like the one at issue here, that employs the term ‘‘exiting’’ rather than ‘‘alighting’’ in defining the word ‘‘occu-
pying,’’ the physical contact test does not apply. We

reject the notion that the physical contact test only

applies to policies that use the term ‘‘alighting.’’ In

Howe, this court applied a physical contact test where

the policy did not mirror the exact language of § 38a363 (c) and instead defined ‘‘occupying’’ as ‘‘in, on,

getting into or out of.’’ Although Testone, Howe, and

Gomes did not consider policies that use the precise

term ‘‘exiting,’’ the case law is nonetheless clear that

‘‘occupying’’ a vehicle requires physical contact. Thus,

precedent supports a construction of the policy in this

case that contains similar language to require physical

contact with the insured auto in order to trigger

coverage.

The plaintiff further argues that we should adopt a

proximity test in place of the physical contact test. We

decline that invitation. In Gomes v. Massachusetts Bay

Ins. Co., supra, 87 Conn. App. 431–36, this court held,

inter alia, that a volunteer fire police officer who was

struck by an underinsured motorist while directing traffic in the middle of an intersection and away from his

vehicle was not ‘‘occupying’’ a motor vehicle for the

purposes of § 38a-336 (f). Id., 435–36. In that case, this

court declined to adopt the proximity test reasoning,

inter alia, that ‘‘we are compelled to follow our Supreme

Court’s express approval of the physical contact test

in Testone v. Allstate Ins. Co., supra, 165 Conn. 134

. . . .’’ Gomes v. Massachusetts Bay Ins. Co., supra,

435.

Moreover, the proximity test urged by the plaintiff

also suffers from being far too nebulous a standard.

Such a test, in our view, would be difficult to apply and

is not rooted necessarily in the language of the policy

or, more generally, in the plaintiff’s relationship with the

vehicle at the time he suffers any injury. For example,

a plaintiff could park his car and then sit on a sidewalk

for hours in very close proximity to his or vehicle. Under

the proximity test, if the plaintiff is injured while sitting

in close proximity to his or her vehicle, but hours after

exiting his vehicle the insured might be entitled to coverage under the policy despite the fact that the circumstances of the accident have little to do with the

insured vehicle.

In the present case, it is undisputed that the plaintiff

parked his vehicle, stepped out, walked past the rear

of his vehicle, and was not in physical contact with his

vehicle when he was struck by an oncoming vehicle.

Therefore, the plaintiff was not ‘‘in, on, entering or

exiting’’ his vehicle at the time of the accident. We

conclude that the court properly granted the plaintiff’s

motion for summary judgment and determined that

there was no genuine issue of material fact regarding

whether the plaintiff was occupying his vehicle at the

time of the accident.

The judgment is affirmed.
In this opinion the other judges concurred.

1 Although the plaintiff asserts that he is the sole member of the limited

liability company, he presented no evidence regarding the corporate governance of his business.

2 There is a factual dispute between the parties as to the make and model

of the vehicle that the plaintiff drove into the parking lot of Rick’s Main

Roofing. The defendant asserts that the plaintiff had been driving his Chevrolet Suburban, which the parties agree is not a vehicle insured under the

policy. The plaintiff contends that he had been driving a GMC Savana, which

the parties agree was a vehicle covered by the policy. Because we conclude

that there is no genuine issue of material fact as to whether he was ‘‘occupying’’ any vehicle when he sustained his injuries, the factual dispute is

not relevant.

3 The plaintiff also claims on appeal that he is the ‘‘alter ego’’ of his

business and, thus, should be considered the named insured for purposes

of uninsured coverage. This assertion was not pleaded in his complaint,

does not appear in his objection to the defendant’s motion for summary

judgment and was not raised orally by the plaintiff during argument on the

motion. Although the court refers briefly to the doctrine in its memorandum

of decision and declines to import it from other unrelated contexts to create

an ambiguity in a contract where none otherwise exists, we conclude that

this claim was not distinctly raised in the trial court. ‘‘[A]n appellate court

is under no obligation to consider a claim that is not distinctly raised at the

trial level. . . . The requirement that [a] claim be raised distinctly means

that it must be so stated as to bring to the attention of the court the

precise matter on which its decision is being asked. . . . The purpose of

our preservation requirements is to ensure fair notice of a party’s claims

to both the trial court and opposing parties.’’ (Citations omitted; emphasis

omitted; internal quotation marks omitted.) White v. Mazda Motor of

America, Inc., 313 Conn. 610, 619–20, 99 A.3d 1079 (2014); see id., 619

(declining to review challenge to summary judgment ruling because particular claim was not raised before trial court). Because the defendant was

never given notice of the plaintiff’s reliance on this doctrine, it did not have

an opportunity to present competent summary judgment evidence to support

an assertion that the doctrine is factually or legally inapplicable in this case.

We therefore decline to review it.

4 The plaintiff also argues that the policy is ambiguous because the declarations page lists ‘‘Wilson Roofing, LLC,’’ as the named insured, rather than

the business name used by the plaintiff when he testified at his deposition,

Wilson Roofing and Siding, LLC. The fact that the name of the business set

forth on the declarations page does not match precisely the name of the

business given by the plaintiff during his deposition does not create an

ambiguity as to whether the policy covers the business or the plaintiff personally.