Opinion
No. FST CV 07-5004607 S
January 7, 2008
MEMORANDUM OF DECISION
This action arises out of a three-vehicle collision which occurred on July 4, 2005 in Westport. One vehicle was occupied by plaintiff Lillie B. Campbell, the operator, and her passengers, Erika Campbell and Saada McDonald, who are also plaintiffs in the case. Campbell and both her passengers were, at all times, Pennsylvania residents. The second vehicle was owned by defendant, Judi Paua, and operated by defendant, Zachery Paua.
In their complaint the plaintiffs claim that the collision and their resulting injuries was caused by the negligent operation of the Paua vehicle and the negligent operation of the third vehicle, an unidentified blue truck which struck the Campbell vehicle and left the scene of the accident. The plaintiffs' named American Independent Insurance Company ("American independent") and AIG Casualty Company ("AIG') as defendants, claiming that they were responsible for the negligence of the unknown operator of the blue truck by reason of the uninsured/underinsured provisions of insurance policies issued by them.
In their first count, the plaintiffs allege the negligence of Zachary Paua. In the second count, the plaintiffs claim that AIG issued an insurance policy to Lillie Campbell for uninsured motorist insurance, but has failed to cover the losses that the plaintiffs allegedly sustained. Finally, in their third count, the plaintiffs allege that American Independent issued an insurance policy to Lillie Campbell for uninsured motorist insurance but has failed to cover the losses that the plaintiffs allegedly sustained.
On August 31, 2007, American Independent filed a motion to dismiss (#108) on the ground that the court lacks personal jurisdiction over it. Attached to American Independent's motion was a memorandum of law, an affidavit and a copy of the police report from the alleged accident. In the affidavit, an authorized representative of American Independent, states that an automobile insurance policy was issued by American Independent in Pennsylvania to Lillie B. Campbell, a Pennsylvania resident. The affidavit further states that American Independent is not incorporated in Connecticut or authorized or licensed to transact business in Connecticut. Finally, the affidavit states that American Independent does not maintain offices in Connecticut or transact or solicit business in the state. Thereafter, on October 15, 2007, the plaintiffs filed an objection to the motion to dismiss (#122) and American Independent filed a reply memorandum to that objection.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
Finally, "[w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction . . . If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction." (Citation omitted; emphasis added; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).
In the present case, American Independent argues that it is a Pennsylvania corporation and, as such, the court may only assert personal jurisdiction over it pursuant to General Statutes § 33-929(f). American Independent maintains that none of the provisions contained in that statute permit the court to exercise personal jurisdiction. Additionally, American Independent asserts that, because it has no contacts with the state of Connecticut, the exercise of personal jurisdiction over it would, even if permitted by the statute, violate constitutional principles of due process.
In response, the plaintiffs apparently argue that § 33-929(f)(1) provides the court with personal jurisdiction because of the contractual relationship between Lillie Campbell and American Independent. They assert that, by providing motor vehicle insurance to cars that will foreseeably travel across state lines, American Independents contacts with this state are sufficient for Connecticut courts to assert jurisdiction over it without offending due process.
"When a defendant files a motion to dismiss challenging the court's jurisdiction, a two part inquiry is required. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendants]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the defendant[s] would violate constitutional principles of due process." (Internal quotation marks omitted.) Green v. Simmons, 100 Conn.App. 600, 604, 919 A.2d 482 (2007).
GENERAL STATUTES § 39-329
Section 33-929(f)(1) provides: "Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising . . . [o]ut of any contract made in this state or to be performed in this state . . ." "[T]he phrase `to be performed in this state' does not require performance in this state by the party over whom jurisdiction is sought." Resource System Group, Inc. v. Internetcash Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 000181480 (June 12, 2001, Lewis, J.T.R.). However, "[p]erformance of the contract in Connecticut . . . must be clearly contemplated or required in this state in order for a court to exercise personal jurisdiction over a defendant that has no other contacts with the state under General Statutes § 33-929(f)(1)." (Internal quotation marks omitted.) Wellner v. Kasarjian, Superior Court, judicial district of Hartford, Docket No. CV 96 0562940 (April 6, 1999, Peck, J.).
The complaint fails to allege that the insurance contract was made or was to be performed in Connecticut. Moreover, although the plaintiffs bear the burden of proving jurisdiction, they have failed to submit any evidence that contradicts or disputes American's affidavit. Instead, the plaintiffs merely assert "that the contractual relationship between [Lillie Campbell] and [American] has a strong connection with the state of Connecticut." They maintain that "[t]his connection stems from the fact that the automobile accident occurred in [Connecticut] and, more importantly, the operator of the vehicle, Lillie Campbell, had a contractual relationship and was the insured of [American]." Nothing in this argument, however, addresses whether the contract was made or was to be performed in this state. As the plaintiffs have submitted no evidence to rebut the allegations set forth in American's affidavit, they have failed to meet their burden with regard to jurisdiction under General Statutes § 33-929(f).
DUE PROCESS
Even if the plaintiffs were able to establish that jurisdiction would be proper under Connecticut's longarm statute, the plaintiffs have failed to show that the assertion of personal jurisdiction over American would not offend due process.
The constitutional limits for the exercise of longarm jurisdiction were delineated in the seminal case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.2d 95 (1945). In Cogswell v. American Transit Ins. Co., 282 Conn. 505 (2007), our Supreme Court had recent occasion to review those limitations. The court stated that "the constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . In other words, [t]he Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations . . . By requiring that individuals have fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign the Due Process Clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit . . . The due process test for personal jurisdiction has two related components: the minimum contacts inquiry and the reasonableness inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction . . .
"For the purposes of this initial inquiry, the Supreme Court of the United States has articulated, and this court has recognized, two types of personal jurisdiction. Either specific jurisdiction or general jurisdiction can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum. A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed [its] activities at residents of the forum . . . and the litigation [has] result[ed] from alleged injuries that arise out of or relate to those activities . . . Alternatively, [e]ven when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, due process is not offended by a State's subjecting the corporation to its in personam jurisdiction if the defendant has had continuous and systematic general business contacts with the state . . . Whether a given defendant has contacts with the forum state sufficient to satisfy due process is dependent upon the facts of the particular case. Like any standard that requires a determination of reasonableness, the minimum contacts test of International Shoe Co. is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present."
"Due process demands more, however, than the existence of minimum contacts between the defendant and the forum state. Once minimum contacts have been established, [t]he second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice — that is, whether it is reasonable under the circumstances of the particular case . . . [Therefore] [w]hile the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Citations omitted; internal quotation marks omitted.) 282 Conn. 523-25.
The court in Cogswell, supra, examined circumstances similar to those presently before the court. In that case, the defendant, a New York state automobile insurance company, was not licensed to conduct insurance business in Connecticut. Id., 526. Additionally, the defendant in that case did not maintain offices, employ workers or own property in Connecticut. Id. Finally, the defendant did not "solicit, underwrite or issue insurance policies to Connecticut residents or Connecticut corporations." Id. The court began by examining whether purely responsive conduct by the defendant (retaining an appraiser in Connecticut to determine damages) was sufficient to establish the requisite minimum contacts under a specific jurisdiction analysis. Id., 529. Although the court acknowledged that the defendant directed some acts toward the forum state by responding to the accident victim's claim, it held that such responsive conduct failed to qualify as sufficient minimum contacts for purposes of specific jurisdiction. Id., 532. In so holding, the court noted that "[t]he mere fact that the defendant insures livery drivers in a state that borders Connecticut does not mean that it should anticipate being haled into court in this state when it does not purposefully direct any business activity here." Id., 531.
In the present case, American Independent has established, through its affidavit, that it does not purposefully direct any business activity towards Connecticut. As noted, the plaintiffs have failed to submit any evidence to rebut the affidavit submitted by American Independent. Indeed, the plaintiffs' only argument concerning due process is that, because it is foreseeable that motor vehicles will cross state lines, American Independent, as a motor vehicle insurer, was given "fair warning" that it would be subject to jurisdiction in other states. This argument, however, ignores the Supreme Court's holding in Cogswell. Based on the allegations of the complaint and the affidavit submitted by American Independent, the court must conclude that American Independent does not direct business activity towards this state. The court therefore lacks jurisdiction over American Independent. Accordingly, the motion to dismiss is granted.