Opinion
No. CV04-0182927S
May 18, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS # 104
Procedural and Factual Background
Plaintiff insurer alleges that negligence caused the water damage to the property of its insured, the tenant. Plaintiff insurer seeks a judgment for money it paid under its policy. The insured tenant signed a lease agreement which, pursuant to paragraph 23, requires any dispute arising under the lease to be settled by arbitration. Defendant landlord has filed a motion to dismiss, citing the mandatory arbitration clause of the lease. Plaintiff insurer counters: a) this case does not arise under the terms of the lease and b) plaintiff insurer was not a party to the lease.
Legal Standard
"A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "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." (Internal quotation marks omitted.) State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 298, 524 A.2d 636 (1987). Whenever a court lacks jurisdiction over the subject matter, the court shall dismiss the action. Practice Book § 10-33.
Discussion and Determination
This is a subrogation action. The lease terms specifically refer to the issues alleged in the complaint (heat, water). Under Connecticut law, a subrogee's rights against a third party can be no greater than those of its subragor. Plaintiff's insured limited its rights under paragraph 23 of the lease.
See Nationwide Mutual v. Warm Valley Kennels, 110 F. Sup.2d 71 (1999), applying Connecticut law.
Plaintiff insurer may not seek reimbursement of amounts paid in this court. Motion to Dismiss granted.
ALVORD, J.