Opinion
No. 566314
January 30, 2004
MEMORANDUM OF DECISION
FACTS
On July 9, 2003, the plaintiff, MMG Insurance Company, f/k/a Maine Mutual Fire Insurance Company, filed a complaint against the defendants, David Church and Carol Church. This action stems from a motor vehicle accident occurring on or about June 30, 2001 in Preston, Connecticut, which involved the plaintiff's insured, Anne Soini, who was a passenger in the vehicle operated by Carol Church and owned by David Church. On or about September 7, 2002, Soini assigned her right through a trust agreement to pursue an action against the defendants to the plaintiff. The plaintiff alleges that Carol Church was negligent in operating the vehicle, and this negligence led to Soini's injuries. The plaintiff also alleges that the defendants have failed to reimburse the plaintiff for all amounts paid by the plaintiff as a result of the injuries sustained by Soini in the accident.
On August 13, 2003, the defendants filed a motion to dismiss the plaintiff's complaint, accompanied by a supporting memorandum of law. The defendants move to dismiss on the grounds that under General Statutes § 38a-336b, this court lacks subject matter jurisdiction. On August 28, 2003, the plaintiff filed a memorandum of law in opposition to the motion to dismiss.
General Statutes § 38a-336b provides: "No insurer providing underinsured motorist coverage as required under this title shall have any right of subrogation against the owner or operator of the underinsured motor vehicle for underinsured motorist benefits paid or payable by the insurer."
DISCUSSION
The plaintiff argues that because the policy in question was issued in New Hampshire and the victim is a resident of New Hampshire, New Hampshire law should apply. The plaintiff also argues that the court should apply a contracts-based choice of law analysis. The plaintiff also argues against the application of General Statutes § 38a-336b. The defendants argue that Connecticut law should apply because the accident occurred in Connecticut and that both defendants were residents in Connecticut at the time of the accident.
The court first turns to the plaintiff's contention that for choice of law purposes this is a contracts case. The plaintiff contends that the instant action is predicated on the insurance policy issued by the plaintiff and the trust agreement between the plaintiff and Soini, therefore, the action sounds in contract. The plaintiff's argument fails because despite the existence of the insurance policy and trust agreement, this action, as the plaintiff alleges, stems from an alleged tortfeasor's negligence in causing an automobile accident. Based on this incident and the absence of issues sounding in contract law, this court is faced with a torts-based choice of law issue.
In deciding conflict of laws issues, the court is guided by the principles set forth in O'Connor v. O'Connor, 201 Conn. 632, 648, 519 A.2d 13 (1986) and Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 800, 830 A.2d 752 (2003), where the Supreme Court "abandoned `categorical allegiance' to the doctrine of lex loci delicti in tort actions," id., 800, in favor of the choice of law analysis contained in §§ 6 and 145 of the Restatement (Second) of the Conflict of Laws (1971). See Cruz v. Teto, Jr., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No: CV 02 0079025, (April 4, 2003, Lager, J.) ( 34 Conn. L. Rptr. 414).
"For assistance in [the] evaluation of the policy choices set out in [§§] 145(1) and 6(2) [of the Restatement (Second)], . . . [§] 145(2) . . . establishes black-letter rules of priority to facilitate the application of the principles of [§]6 to tort cases." O'Connor v. O'Connor, supra, 201 Conn. 652. "Subsection (2) of § 145 of the Restatement (Second) of Conflict of Laws provides: `Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.'" Dugan v. Mobile Medical Testing Services, Inc., supra, 265 Conn. 801-02.
In support of their contention that New Hampshire law should apply, the plaintiff offered the following reasons: (1) the plaintiff is licensed to issue insurance in New Hampshire; (2) Soini is a New Hampshire resident; and (3) the automobile insurance policy was issued in New Hampshire. The defendants offered the following reasons for the application of Connecticut law: (1) both defendants reside in Connecticut; (2) the automobile accident occurred in Connecticut; (3) Soini came to Connecticut; and (4) the injury occurred in Connecticut. We agree with the defendants that Connecticut law should apply in light of the factors set forth in § 145(2) of the Restatement (Second) of Conflict of Laws.
In analyzing the § 145 factors in this case, both (a) and (b) clearly favor the application of Connecticut law in that the accident and Soini's injuries occurred in Connecticut. Factor (c) favors Connecticut in as much as the defendants are both Connecticut residents while the plaintiff is a Maine Corporation whose principle place of business is in Maine and is merely licensed to sell insurance in New Hampshire. It is noted that the plaintiff's insured is a New Hampshire resident yet is not a named party to this lawsuit. Factor (d) has little bearing since only an indirect relationship existed between the parties solely as a result of the plaintiff "stepping into the shoes" of its insured as a result of its action for subrogation. See Wasko v. Marella, 74 Conn. App. 32, 35, 811 A.2d 727 (2002).
As O'Connor informs us, "it is the significance, and not the number, of § 145(2) contacts that determines the outcome of the choice of law inquiry under the Restatement [Second] approach. As the concluding sentence of § 145(2) provides, `[ t]hese contacts are to be evaluated according to their relative importance with respect to the particular issue.'' O'Connor v. O'Connor, supra, 201 Conn. 652-53, quoting 1 Restatement (Second), supra, § 145(2), p. 414. The choice of law also must reflect both the interests of the parties and the concerned jurisdictions. Id., 646. See Restatement (Second) of the Conflict of Laws § 6. The court is required to consider the particular issue which gives rise to the conflict in this case, whether General Statutes § 38a-336b prohibits reimbursement under a right of subrogation of a foreign insurance company for underinsured motorist coverage provided to its insured as a result of injuries sustained in a motor vehicle accident occurring in Connecticut.
Connecticut has a long-standing policy, embodied in General Statutes § 38a-336b, of prohibiting the right of subrogation for underinsured motorist claims. "By Public Acts 1997, No. 97-58, § 4, the legislature eliminated this right of subrogation for underinsured motorist claims." Nuzzo v. Nationwide Mutual Ins. Co., Superior Court, judicial district of New Haven, Docket No. 394015 (April 8, 1999, Levin, J.) ( 24 Conn. L. Rptr. 388, 390). However, New Hampshire follows an opposite view where a party has the right of subrogation for underinsured motorist claims. See Prudential Property Casualty Ins. Co. v. Dumont, 136 N.H. 569, 618 A.2d 839 (1992).
See Nationwide Mutual Ins. v. CNA Ins. Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0360226, (February 20, 2001, Melville, J.).
Clearly, then, Connecticut and New Hampshire regulate subrogation rights for underinsured motorist claims very differently. Upon evaluating the relative importance of each factor, we conclude that Connecticut has the greater contact with the parties in this case. Connecticut's interest in applying its standards of conduct to govern the liability of those who use its highways is significant in this case because the injury occurred in Connecticut. See O'Connor v. O'Connor, supra, 201 Conn. 653. Although it is relevant that the plaintiff issued its policy in New Hampshire, the accident occurred in Connecticut, the underlying claim was brought in Connecticut, therefore, it is a reasonable conclusion that the insured risk was to be Connecticut. Based on the foregoing, Connecticut law applies. Accordingly, General Statutes § 38a-336b prohibits the plaintiffs from reimbursement under a right of subrogation for its underinsured motorist claim.
The plaintiff argues that whether or not General Statutes § 38a-336b applies does not impact this court's jurisdiction to hear this case. "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. In contrast, a motion to strike is the proper means of attacking a pleading that on its face is legally insufficient." (Emphasis in original.) Capers v. Lee, 239 Conn. 265, 282, 684 A.2d 696 (1996). The court's finding that General Statutes § 38a-336b shall apply in this case does not render the court without subject matter jurisdiction as argued by the defendants. As a result of the court's decision, however, the plaintiff has failed to state a cause of action upon which relief may be granted. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Therefore, the court treats the motion to dismiss as a motion to strike and, thus treated, grants the motion.
D. MICHAEL HURLEY JUDGE TRIAL REFEREE.