Opinion
No. CV09-6001755S
March 12, 2010
MEMORANDUM OF DECISION
The defendant, an out-of-state resident, has filed a motion to dismiss the complaint filed against her by the plaintiffs who allege that they suffered injuries when, on August 13, 2007, the defendant negligently struck the vehicle in which the plaintiffs were traveling eastbound on I-84. After the accident, the defendant reported to the police that her address was 7142 Old Post Road, Boulder, Colorado. On August 7, 2009, at the direction of the plaintiffs' attorney, a State Marshal left a true and attested copy of the writ, summons, complaint, statement of amount in demand with the Connecticut commissioner of motor vehicles, and mailed a duplicate copy of the service, by certified mail, to the address the defendant provided in the accident report. On August 28, 2009, the state marshal received an unclaimed mail certificate. On October 14, 2009, the defendant filed the motion to dismiss for failure of service that is presently before the court.
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." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, [a]ny defendant wishing to contest the court's jurisdiction, may do so . . . by filing a motion to dismiss within thirty days of the filing of an appearance." (Citation omitted; internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). See Practice Book § 10-30. "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 . . . 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 . . ." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
The defendant argues that the complaint should be dismissed on the ground that the court lacks personal jurisdiction. In particular, the defendant claims that the plaintiffs did not mail a copy of the service to her last known address, as required by General Statutes § 52-62. The plaintiffs counter that they have satisfied § 52-62 because the defendant received actual notice of the litigation and because valid service was made upon the defendant's agent, the commissioner of motor vehicles. They maintain that these two elements are sufficient to provide the court with the necessary personal jurisdiction over the defendant. Alternatively, the plaintiffs argue that service was sent to the defendant's "last-known address" for purposes of § 52-62 inasmuch as it was sent to the address that the defendant provided to the police. Finally, the plaintiffs contend that even if the service provided is insufficient to establish jurisdiction, the appropriate action for the court to take is to allow amended service, as opposed to granting the motion to dismiss.
Service of process is key to establishing the jurisdiction of the court as "[o]ne who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003). "[W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Citations omitted; internal quotation marks omitted.) Commissioner of Transportation v. Khan, 262 Conn. 257, 272, 811 A.2d 639 (2003).
Because service of process has been found to be legally sufficient, the court need not address whether the plaintiffs should be given an opportunity to serve amended process on the defendant.
General Statutes § 52-62(a) provides that any nonresident who causes a motor vehicle to be used in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident in the use of any motor vehicle in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally. Section 52-62(c) provides that process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with the commissioner a true and attested copy thereof, and by sending to the defendant by registered or certified mail a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant at his last-known address. Finally, "[t]he leaving of a copy with or at the office of the commissioner [of the department of motor vehicles] and the sending of a copy to the defendant are by the statute both made a part of the service of process and are linked up in such a way that the [l]egislature obviously regarded them as parts of one act." Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255 (1931).
The constitutional validity of what is today known as § 52-62 rests on two principles; 1) that when a nonresident accepts the privilege of using Connecticut highways, he deems the registrar of motor vehicles to act as his agent for service of process, and; 2) that constructive service through the registrar of motor vehicles is sufficient only if there is also some mechanism in the statute that, if complied with, will provide a reasonable probability that the nonresident defendant will receive actual notice of the bringing of an action against him. Hartley v. Vitiello, supra, 113 Conn. 76-80. Hartley v. Vitiello, supra, 80, upheld the constitutionality of § 52-62, explaining that, even without requiring a return receipt, the mailing of service to the defendant's "last-known address," coupled with an affidavit of the officer attempting service, are together sufficient to establish that, if complied with, a defendant will have a reasonable probability of receiving notice. (Emphasis added.) Although Hartley v. Vitiello, supra, 113 Conn. 80, makes clear that the test is "reasonable probability of notice, not actual notice," Superior Courts disagree as to whether a defendant's receipt of actual notice of the litigation is significant when evaluating whether a plaintiff has complied with the "last-known address" requirement of § 52-62. In Barker v. Rosati, Superior Court, judicial district of New London, Docket No. CV 08 5008708 (February 20, 2009, Peck, J.) [ 47 Conn. L. Rptr. 285], the court held that appearance of counsel on behalf of defendant for the purposes of filing a motion to dismiss is not sufficient to establish adequacy of service under § 52-62 because to hold such would render moot nearly all objections to jurisdiction based on insufficient service of process. In Trinidad v. Munez, Superior Court, judicial district of New Haven, Docket No. CV 06 5001231 (March 13, 2007, Rubinow, J.) [ 43 Conn. L. Rptr. 54], the court held that the policy underlying § 52-62 was satisfied by the defendant's actual notice of the suit demonstrated when its counsel appeared before the court for the purpose of requesting a transfer of venue. The factual similarities of Trinidad v. Munez, supra, Superior Court, Docket No. CV 06 5001231, and Barker v. Rosati, supra, Superior Court, Docket No. CV 08 5008708, to the case currently before the court merit a brief discussion.
In Trinidad v. Munez, supra, Superior Court, Docket No. CV 06 5001231, roughly two years after an alleged motor vehicle accident, the plaintiff served the commissioner of motor vehicles and sent a copy to the address the defendant listed in the accident report. The service was returned to the marshal marked "Attempted, Not Known." Despite the apparently inadequate delivery, the defendant's counsel appeared for the purpose of filing a motion to dismiss for want of service, as well as to request a change of venue. The appearance of the defendant's counsel, having knowledge of the underlying facts of the case, indicated to the court that the defendant must have been given actual notice of the suit. The court that the "clear purpose of § 52-62 was fully achieved; the defendant received actual notice of the lawsuit against him, the functional equivalent of the statute's methodology for service which is reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action."
Barker v. Rosati involved a nonresident driver striking a resident plaintiff. After the accident, but before service had been mailed, the defendant moved and updated her address with the Rhode Island department of motor vehicles. A copy of the service was sent to the defendant's old address, which in an affidavit attached to the motion to dismiss filed by her counsel, the defendant stated that she had not resided at for almost two years. The court rejected the argument that service on the motor vehicle commissioner, coupled with the defendant's actual notice of the suit, fulfilled the requirements of § 52-62. In particular, the court took a skeptical view of the reasoning that if the defendant appeared in court to contest the service, then notice must have been sufficient under Hartley v. Vitiello. The court reasoned that finding such an appearance to be a substitute for a defendant's notice would undermine the rationale supporting Practice Book § 10-30, which contemplates that a defendant's counsel may appear for the purposes of contesting the sufficiency of service. The court concluded that, by updating her address, the defendant was not trying to conceal her whereabouts. Because the defendant's current address at the time of service was readily ascertainable, the plaintiff, by mailing process to a long invalid address, put herself `in peril' of failing to meet the notice requirements of § 52-62 and thereby depriving the court of jurisdiction over the defendant." (Internal quotation marks in original.) Id. The court in Barker granted the defendant's motion to dismiss.
With respect to the issue of whether a defendant's actual notice of the suit may be used in determining whether the "last-known address" requirement has been satisfied, the standard is set forth by the Supreme Court: "[L]ast-known address does not mean the last address known to the plaintiff, but does mean the last address of the defendant so far as it is known, that is by those who under the ordinary circumstances of life would know it. Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared, it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril, and only if the copy is mailed to it is there a compliance with the statute." (Emphasis added; internal quotation marks omitted.) Further, locating the defendant is the plaintiff's responsibility, as "[i]t is not the duty of the officer to hunt up the address of the defendant after process is put into his hands for service." Hartley v. Vitiello, supra, 113 Conn. 79.
Evidence that the plaintiff conducted a formal search before sending service to the defendant's address is sufficient to show the plaintiff used a proper "last-known address," as required by Hartley. See Updike, Kelly Spellacy, P.C. v. Beckett, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 0497890 (March 6, 2002, Aurigemma, J.) [ 31 Conn. L. Rptr. 500] (the plaintiff's investigation supported the conclusion establishing that defendant was reasonably probable to receive notice at address); and Prudential Home Mortgage Co. v. Gajnos, Superior Court, judicial district of Litchfield, Docket No. CV 95 0060886 (November 17, 1995, Pickett, J.) (address determined by search firm constituted defendant's last-known address for purposes of service).
Other Superior Court cases have found that a valid "last-known address" includes one in which the defendant has himself provided to the plaintiff for the purposes of correspondence. See Medeiros v. Kaye, 31 Conn.Sup. 370-73, 331 A.2d 351 (1974); Cadle Co. v. Crown Amoco, Superior Court, judicial district of New Haven, Docket No. CV 93 0350875 (August 11, 2000, Pittman, J.) ( 27 Conn. L. Rptr. 680). In Medeiros v. Kaye, supra, 31 Conn.Sup. 372, for instance, the court explained that "[i]t appears that notice should be sent to a place or address where it is probable that the notice will be received by the addressee . . . A plaintiff may utilize the address supplied by the defendant motorist in his accident report or the best address available to the plaintiff, and either address will establish a reasonable probability that the motorist will receive actual notice of the pending action, satisfying due process." (Citation omitted; emphasis added.) The court in Medeiros found the plaintiff's service to the address provided by the defendant in the accident sufficient under the circumstances, as the "purpose of the statute was fulfilled." Id.
Other Superior Court cases have taken into consideration the actions taken by the defendant after relocating in order to determine whether the plaintiff's attempted service was reasonable. See Cadle Co. v. Crown Amoco, supra, 27 Conn. L. Rptr. 681 ("defendants cannot passively avoid service of process under the long arm statute by moving thereafter and leaving no forwarding address"); DeManche v. Downs, Superior Court, judicial district of Hartford, Docket No. CV 96 0559483 (February 5, 1997, Sullivan, J.) ( 19 Conn. L. Rptr. 259) ("[i]t is probable that this process [by registered mail] would have come to the attention of the defendant had he taken customary, reasonable and prudent steps of maintaining a forwarding address at the post office"). In particular, in DeManche v. Downs, supra, 19 Conn. L. Rptr. 259, the court found that the plaintiff's use of the defendant's address provided in the accident report was sufficient to satisfy § 52-62 where the defendant moved, failed to notify anyone of his change of address, did not leave forwarding mail instructions, and then refused to accept process at his new residence. The court found that "[t]he concept of probability presupposes that citizens will be prudent in the handling of their affairs and that certainly presuppose the maintenance of forwarding addresses for the delivery of mail." Id.
In the present case, the fact that the defendant updated her address with the Colorado department of motor vehicles is irrelevant for purposes of § 52-62 if access to that information is not available to the plaintiffs. If it is the plaintiff's duty to find the correct address of the defendant for service, the plaintiff's compliance with that duty must be evaluated with regard to the tools available to him, and the likelihood those tools will reveal the defendant's whereabouts. Notwithstanding the defendant's assertion that the address was "readily ascertainable," there is no indication that the plaintiffs had access to the Colorado motor vehicle registry. Moreover, there is no indication that the defendant established a forwarding address with the post office.
Under the circumstances, it was reasonable for the plaintiffs to rely on the defendant's disclosure in the accident report. Considering all allegations before the court, this was the only address that was publicly available to them, and, therefore the use of this address satisfies the requirements of § 52-62 and Hartley. Additionally, the fact that the return receipt in this case returned unsigned to the marshal is not dispositive inasmuch as the statute does not require proof of a return receipt. See Hartley v. Vitiello, supra, 113 Conn. 80.
CONCLUSION
The plaintiff has provided sufficient service to the defendant's "last-known address," consistent with other Superior Court cases. Accordingly, the motion to dismiss is denied.