Opinion
No. CV 03 0071517
November 15, 2005
MEMORANDUM OF DECISION
The defendant, Litchfield Mutual Fire Insurance Company, filed a motion to dismiss count two of the second amended complaint citing lack of jurisdiction. The plaintiff has not filed a memorandum of law in opposition to the defendant's motion to dismiss as required by Practice Book § 10-31. The Practice Book, however, no longer provides that a party who fails to timely file a memorandum of law in opposition to a motion to dismiss is deemed to have consented to the motion. Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 12-13 n. 1, 578 A.2d 646 (1990). The plaintiff in the present action has not filed an untimely memorandum, he has failed to file a memorandum at all. The superior courts, however, have not drawn the distinction between making an untimely filing and failing to make a filing. A. Rotondo Sons, Inc. v. Skanco Sharon-Foxboro Development, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0524589 (March 6, 1995, Hale, J.T.R.); Thibault v. Woodward Governor Co., Superior Court, judicial district of Litchfield, Docket No. 058982 (June 2, 1992, Dranginis, J.) ( 7 C.S.C.R. 1064) ( 6 Conn. L. Rptr. 543). Therefore, the plaintiff's failure to file an opposing memorandum of law does not mandate the granting of the motion and the court will consider the merits of the motion.
The court notes that the plaintiff failed to appear at oral argument scheduled for November 14, 2005 despite defendant Litchfield Mutual Fire Insurance Company marking the motion ready to be heard. See Affidavit of Wendy Madsen dated November 11, 2005.
In its memorandum in support of its motion to dismiss, the defendant contends that the plaintiff here seeks relief under C.G.S. § 38a-321. The defendant maintains that the statute does not authorize actions against an insurance company until a judgment against an insured covered by a policy has been entered. The defendant claims that because the plaintiff has failed to comply with § 38a-321, the court lacks jurisdiction over the subject matter of this action.
The plaintiff has not specifically alleged that he is seeking recovery pursuant to § 38a-321, however, the defendant asserts that no other conclusion can be reached.
"Under § 38a-321, the plaintiff is required to obtain a judgment against [the tortfeasor] before seeking to recover against [his insurance carrier.]" Lightowler v. Continental Ins. Co., 255 Conn. 639, 646 n. 15, 769 A.2d 49 (2001); see also Century Indemnity Co. v. Kofsky, 115 Conn. 193, 197-98, 161 A.2d 101 (1932). Thus, in the present case, a judgment against an insured of the defendant, Litchfield Mutual Fire Insurance Company, is a prerequisite to recovering against the insurer. Lightowler v. Continental Ins. Co., supra, 255 Conn. 645-46. The plaintiff fails to show that he has a cause of action against Litchfield Mutual Fire Insurance Company under § 38a-321 where there is no showing that the plaintiff has obtained a final judgment against an insured of the defendant.
Accordingly, the defendant's motion to dismiss as to count two of the second amended complaint as against Litchfield Mutual Fire Insurance Company is granted as the court lacks subject matter jurisdiction with respect to said count.