Opinion
No. HHD-CV-06-5004493
February 4, 2008
MEMORANDUM OF DECISION MOTION TO DISMISS
I STATEMENT OF CASE
At short calendar, the court heard argument concerning a motion to dismiss, dated September 25, 2007, filed by the defendant, American Home Assurance Company/AIG (AIG).
This matter arises from a motor vehicle collision that occurred on August 24, 2005, in Hartford, Connecticut. The plaintiff alleges that his vehicle collided with a vehicle owned by Ana Diaz and operated by Seferino Perez. The first count sounds in negligence against Diaz and Perez. The Diaz vehicle was insured by AIG. The plaintiff's vehicle was not insured by AIG
The plaintiff filed an amended complaint, dated August 29, 2007, in which Counts 2 and 3 sound in bad faith and CUTPA/CUIPA against AIG. The plaintiff alleges that although he is not a party to the subject insurance policy, he is aggrieved/harmed by the bad faith actions/inactions of AIG in regards to his claim. He maintains that in his position as a harmed party to this action, he has a right to be covered by Diaz's insurer, AIG as being in the position of a defacto beneficiary by way of a subrogation of rights on the part of the plaintiff, for AIG to act in good faith, in the dealings of this case.
AIG moves to dismiss Counts 2 and 3 on the grounds that the court does not have subject matter jurisdiction because the plaintiff, as a third-party claimant, lacks standing to bring this action against AIG.
II DISCUSSION
Any defendant wishing to contest the court's jurisdiction may do so by filing a motion to dismiss. Practice Book § 10-31. "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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
"Jurisdiction is the power in a court to hear and determine the cause of action presented to it. Jurisdiction must exist in three particulars: the subject matter of the case, the parties, and the process." (Citations omitted; internal quotation marks omitted.) LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976). "Standing goes to the court's subject matter jurisdiction." (Citation omitted.) Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987); See St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003) (The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.").
"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, supra, 278 Conn. 211. "A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits." (Citation omitted.) Herzog Foundation, Inc. v. Uni. Of Bridgeport, 41 Conn.App. 790, 793, 677 A.2d 1378 (1996). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Citation omitted; Internal quotation marks omitted.) St. George v. Gordon, supra, 264 Conn. 544-45.
AIG contends that the plaintiff has no standing to bring this suit because he is neither a party to, nor a third-party beneficiary of, the insurance policy issued by AIG. The Appellate Court in Carford v. Empire Fire Marine Ins. Co., 94 Conn.App. 41, 891 A.2d 55 (2006), examined whether a third-party claimant could bring an action to enforce an insurer's duty of good faith and fair dealing. There, the plaintiffs alleged breach of the implied covenant of good faith and fair dealing and a violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) based on the defendant's alleged violation of the Connecticut Unfair Insurance Practices Act (CUIPA) (§ 38a-815). In affirming the trial court's granting of the defendant's motion to strike the plaintiff's complaint, the Appellate Court held: "As our case law makes clear, no claim of breach of the duty of good faith and fair dealing will lie for conduct that is outside of a contractual relationship. Notwithstanding that case law, the plaintiffs assert that because they offered to settle the case within the policy limits, the insurer's duty to the insured is transferred to the injured party. The plaintiffs offer no authority in support of that novel assertion. Rather, our authority recognizes a common-law duty of good faith and fair dealing between an insurer and its insured. See, e.g., Buckman v. People Express, Inc., supra, 205 Conn. 170 (insurer owes common-law duty of good faith to insured independent from applicable statute). That duty, however, does not extend to a third party. Macomber v. Travelers Property Casualty Corp., supra, 261 Conn. 642 (in context of settling claims, insurer owes no fiduciary duty to third party claimant because `such a duty would interfere with the insurer's ability to act primarily for the benefit of its insured' [emphasis in original]). A third party claimant is subrogated to the rights of the insured, and is entitled to bring an action against an insurance company, only after judgment. See General Statutes § 38a-321. Because there was no contractual relationship between the parties, nor any judgment leading to subrogation, the defendant owed no duty of good faith and fair dealing to the plaintiffs. The plaintiffs' first argument therefore fails." Carford v. Empire Fire Marine Ins. Co., supra, 94 Conn.App. 46.
In Hunter v. Olschelski, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 010276707 (March 19, 2005, Skolnick, J.) ( 2002 Ct.Sup. 3398, 3401) [ 31 Conn. L. Rptr. 585], the court granted the defendant's motion to dismiss for lack of standing where the plaintiff brought a negligence action against a second driver and included a breach of duty of good faith and fair dealings against the second driver's insurance company. The court held: "Because the plaintiff has not alleged any fact to show the existence of a contractual relationship between him and GEICO in the form of an automobile insurance policy between the parties, he has failed to show that GEICO owed him a duty to deal with him in good faith and fairly, pursuant to provisions of the policy. Because there is no showing of a duty, there is no breach of the duty as a matter of law." Hunter v. Olschelski, supra, 2002 Ct.Sup. 3401.
The court in Quality Auto Body v. Progressive Insurance Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 030284533 (June 29, 2004, Tanzer, J.) ( 2004 Ct.Sup. 10128, 10131), granted the defendant's motion to strike the complaint for lack of standing where the defendant insurance company refused to pay the plaintiff's posted hourly rate for services rendered to an individual involved in an automobile accident with one of the defendant's insured. The second count alleged a violation of CUTPA. The court found: "There is no allegation in the plaintiff's complaint, however, that any agreement or relationship existed between the plaintiff and the defendant. As the defendant points out in its supporting memorandum of law, the plaintiff does not allege that it is an insured of the defendant or that it was a party to any contract of insurance that may have existed between the defendant's insured and the defendant at the time of the loss. There is no allegation nor can one be implied that the defendant owed any duty to plaintiff. Moreover, the plaintiff's complaint lacks any allegation that Ouellette or the defendant's insured assigned his or her rights or claims to the plaintiff." Quality Auto Body v. Progressive Insurance Co., supra, 2004 Ct.Sup. 10130-31.
In Hayden v. Main, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 054002715 (April 17, 2007, Esposito, J.) ( 2007 Ct.Sup. 9508, 9514), the court granted the defendant's motion to strike on the grounds that the plaintiffs, as third-party claimants, cannot bring an action directly against the defendant insurer for breach of the duty of good faith and fair dealing or to recover for alleged CUTPA and CUIPA violations. There, the plaintiffs filed a seven-count amended complaint against the operator and his insured. The court found: "Connecticut appellate authority clearly requires the existence of a contractual relationship as a necessary antecedent to any claim of breach of the duty of good faith and fair dealing . . . even assuming that an insurer owes a fiduciary duty to its insured, such duty does not extend to a third-party claimant . . . In fact, the existence of a duty running to the insured precludes an inference of a fiduciary duty existing between the insurer and a third-party claimant because such a duty would interfere with the insurer's ability to act primarily for the benefit of its insured." (Citations omitted; internal quotation marks omitted.) Hayden v. Main, supra, 2007 Ct.Sup. 9510.
In the present matter, the plaintiff has failed to allege facts demonstrating that AIG owes a duty of good faith and fair dealings to the plaintiff as a third-party claimant. There is no allegation in the plaintiff's complaint that any agreement or relationship existed between the plaintiff and AIG. The plaintiff fails to allege he is an insured of AIG or that he was a party to any contract of insurance that may have existed between Diaz and AIG at the time of the collision. There is no allegation nor can one be implied that AIG owed any duty to plaintiff. The plaintiff lacks standing to bring an action against AIG for breach of the duty of good faith and fair dealing or to recover for the alleged CUTPA/CUIPA violation.
III CONCLUSION AND ORDER
For the above-stated reasons, AIG's motion to dismiss as to counts 2 and 3 of the amended complaint is granted because the court lacks subject matter jurisdiction with respect to those counts.
SO ORDERED.