Opinion
CV146046283S
07-12-2016
National Union Fire Insurance Company of Pittsburg v. Commons at Miller River, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On April 10, 2014, the plaintiff, National Union Fire Insurance Company of Pittsburg, filed a one-count complaint against the defendant, Commons at Miller River, Inc., alleging a claim of breach of contract. In its complaint, the plaintiff alleges the following facts. The defendant is engaged in the business of real estate property rental and sales. Pursuant to an application for insurance and a premium paid, the plaintiff issued a directors, officers and trustees insurance and not-for-profit organization reimbursement insurance policies in favor of the defendant, as a named insured. The subject insurance policy (policy) period was from September 21, 2006 until September 21, 2007. The policy provides for a self-insured retention for all non-employment discrimination claims in the amount of $10,000 per loss, and also provides for a self-insured retention in the amount of $1,000 for all other claims. The self-insured retention applies to judgments, settlements and defense costs. The policy provides that " [t]he insurer shall only be liable for the amount of loss arising from a claim which is in excess of the retention amounts stated in item 5B and 5C of the declaration page, such retention amounts to be borne by the organization and shall remain uninsured."
The plaintiff further alleges that the defendant tendered a claim for coverage under the policy. The plaintiff accepted the claim and agreed to provide defense and indemnity under the non-employment discrimination coverage of the policy in connection with the claim, and pursuant to the terms and conditions of the policy. In defense of the interests of the defendant, the plaintiff paid $11,656.78 in defense costs on behalf of the defendant. The plaintiff paid this amount, without contribution from the defendant, and is therefore entitled to reimbursement of the $10,000 self-insured retention in connection with the claim. The plaintiff made a demand on the defendant for repayment of the amount owed on the claim and to date, the defendant has failed and refused to pay. In connection with the claim, the plaintiff fully, properly, and faithfully discharged all obligations, covenants, and conditions imposed upon it. The defendant has breached its contract with the plaintiff by failing and refusing to reimburse the plaintiff in the amount that is owed. As a result, plaintiff seeks damages.
On May 23, 2014, the defendant filed the present motion to dismiss, along with a supporting memorandum of law. On June 4, 2014, the plaintiff filed an objection to the defendant's motion to dismiss. Oral argument on this motion was heard at short calendar on April 18, 2016.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
" The grounds which may be asserted in [a motion to dismiss include] lack of jurisdiction over the subject matter . . ." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). It is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 626.
In the defendant's memorandum of law in support of its motion to dismiss, it argues that the plaintiff did not name a legally cognizable entity as a defendant in its complaint and therefore the present complaint must be dismissed for lack of subject matter jurisdiction. In the plaintiff's objection to the defendant's motion to dismiss, the plaintiff counters that its error in naming a nonexistent entity is a misnomer pursuant to General Statutes § 52-123 and accordingly, the plaintiff is allowed to file an amended complaint in order to correct the misnomer. Thus, the plaintiff argues that complaint should not be dismissed.
In the present case, the plaintiff filed a request to amend and an amended complaint on June 4, 2014. (Docket #102.)
Section 52-123 provides " [n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." " Section 52-123 is a remedial statute and therefore must be liberally construed in favor of those whom the legislature intended to benefit . . ." (Internal quotation marks omitted.) Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759, 762 (1995).
Our Appellate Court has recognized that " [w]hen the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew [it] was the intended defendant." Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414, 885 A.2d 768 (2005), aff'd, 112 Conn.App. 1, 961 A.2d 1012 (2009). Our Supreme Court in Pack v. Burns, 212 Conn. 381, 385, 562 A.2d 24 (1989), considered three factors in determining if an amendment simply corrects a misnomer, rather than substitutes a new party. The court stated that the factors are " that the proper party defendant (1) [had] actual notice of the institution of the action; (2) knew that it was the proper defendant in the action; and (3) was not in any way misled to its prejudice." (Internal quotation marks omitted.) Id., 385.
In the present case, it is evident that the plaintiff intended to sue the Proprietors of the Commons at Mill River, Inc. and that the Proprietors of the Commons at Mill River, Inc. knew that it was the intended defendant. First, both parties agree that there is no such entity known as Commons at Miller River, Inc. Thus, it can be fairly assumed that the plaintiff did not intend to sue a nonexistent entity. Second, service of the process that began the action was made upon a property manager who was authorized to accept service for the defendant, and did in fact accept service. Moreover, the return of service states that service of process was served in the hands of a property manager who is " authorized to accept for Commons at Mill River, Inc., correctly known as the Proprietors of the Commons at Mill River, Inc." Third, the insurance policy between the plaintiff and the defendant lists the name of the defendant as Commons at Miller River, Inc. See Pl.'s Ex. A. Fourth, when reading the allegations of the complaint, the defendant knew or should have known that it was Proprietors of the Commons at Mill River, Inc. that was being sued because the allegations in the complaint were directed at the insured party, the defendant, for breach of contract. See Pl.'s Compl. With regard to the third element, there is no evidence submitted to the court to indicate that the defendant was mislead to its prejudice. Thus, the designation of Commons at Miller River, Inc. as the Proprietors of the Commons at Mill River, Inc. is a defect in the text of the writ which falls squarely within the purview of § 52-123. See Andover Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 394 (holding town was intended defendant, that town had actual notice of institution of action, and that town was not mislead to prejudice); Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994) (defect in civil summons form listing defendant as State of Connecticut, Department of Transportation, rather than Commissioner of Transportation, was mere misnomer which did not deprive trial court of subject matter jurisdiction); Pack v. Burns, supra, 212 Conn. 385-86 (plaintiff was entitled to amend named defendant under § 52-123 because plaintiff had intended to sue commissioner and commissioner, who was not prejudiced by error, knew he was intended defendant); Maulucci v. St. Francis Hospital & Medical Center Foundation, Inc., Superior Court, judicial district of Hartford, Docket No. 510685, (May 15, 1996, Blue, J.) (17 Conn.L.Rptr. 136) (denying motion to set aside verdict and for a new trial where defendant had notice and was not prejudiced.)
Accordingly, the plaintiff may correct its misnomer and therefore, the defendant's motion to dismiss is denied.
CONCLUSION
Based on the foregoing, the defendant's motion to dismiss the plaintiff's complaint is denied.