Opinion
KNLCV166027740S
01-20-2017
Joseph Pinkham v. State National Insurance Company, Inc
UNPUBLISHED OPINION
RULING ON DEFENDANT'S MOTION TO DISMISS
Robert F. Vacchelli, Judge
This case is an action by the plaintiff, Joseph Pinkham, seeking a declaratory judgment obligating the defendant, State National Insurance Company, Inc., to provide a defense for and indemnify certain of its insureds being sued by the plaintiff in separate litigation. Pending before the court is a motion to dismiss, filed by the defendant, arguing that the plaintiff lacks standing to bring this suit. The court also asked the parties to address the issue of whether the case was ripe for adjudication. For the following reasons, the court concludes that the motion to dismiss should be granted. Judgment shall enter in favor of the defendant, accordingly.
I
" 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; citation omitted.) RC Equity Group, LLC v. Zoning Commission of Borough of Newton, 285 Conn. 240, 248, 939 A.2d 1122 (2008).
In deciding a motion to dismiss, the court is obligated to, " 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 . . . [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken." (Citation omitted; internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108-09, 967 A.2d 495 (2009). " [I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted; citations omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).
" Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . ." (Internal quotation marks omitted; citation omitted.) St. Germain v. LaBrie, 108 Conn.App. 587, 591, 949 A.2d 518 (2008).
Standing implicates the court's subject matter jurisdiction. Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206 (2010). " Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted; citation omitted.) Bingham v. Dep't of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008).
" Ripeness is one of several justiciability doctrines, including standing and mootness . . . An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates the court's subject matter jurisdiction . . . While the declaratory judgment procedure may not be utilized merely to secure advice on the law . . . or to establish abstract principles of law . . . or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights . . . it may be employed in justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof." (Citations omitted; internal quotation marks omitted.) Hamilton v. United Services Automobile Assn., 115 Conn.App. 774, 781-82, 974 A.2d 774, cert. denied, 293 Conn. 924, 980 A.2d 910 (2009).
II
Based on the allegations of the complaint, the relevant facts are as follows: The defendant is an insurance company authorized to do business in the State of Connecticut. By way of complaint filed February 13, 2015, the plaintiff commenced a lawsuit against several persons and companies, including Gary Picardi and Family Bowl, LLC and Half Time Sports Lounge, LLC d/b/a Picardi's Pub (" insureds") in a case titled Joseph Pinkham v. Briana Picardi et al., Superior Court, judicial district of New London, Doc. No. KNL CV 15-6023458 . In that case, the plaintiff alleges that on March 9, 2013, he suffered personal injuries while he was a patron at Picardi's Pub, located within the Family Bowl, located at 122 Boston Post Road in Waterford, CT due to the negligence and carelessness of the insureds.
Prior to March 9, 2013, the defendant issued a renewal policy to the insureds, which policy was in full force and effect at the time of the events that caused injury to the plaintiff. Pursuant to the terms of the policy, the defendant had an obligation to provide a defense for and indemnify the insureds against plaintiff's claims. Despite said obligation, and in contravention to the terms of the policy, the defendant refused to provide a defense on behalf of the insureds. To date, the defendant has not provided counsel for the defense. The plaintiff alleges that he is directly harmed by the defendant's refusal to provide a defense and indemnify its insureds. Therefore, he seeks a judgment from the court declaring that the defendant has a duty to defend and/or indemnify the insureds under the policy in connection with his lawsuit against the insureds.
III
The issue before the court is whether an injured party can bring an action against his insured tortfeasor's liability insurer, prior to obtaining a judgment against the insured, to determine issues of coverage. Under the circumstances of this case, the answer is negative.
For analytical purposes, this case involves two issues: the duty to defend and the duty to indemnify. " It is beyond dispute that an insurer's duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the complaint . . . The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured, but on whether he has, in his complaint, stated facts [that] bring the injury within the coverage . . . If an allegation of the complaint falls even possibly within the coverage, then the [insurer] must defend the insured. Accordingly, an insurer's duty to defend its insured is triggered without regard to the merits of its duty to indemnify." (Citation omitted; internal quotation marks omitted.) R.T. Vanderbilt Company, Inc. v. Continental Casualty Company, 273 Conn. 448, 470, 870 A.2d 1048 (2005); Harman v. Belisle, Superior Court, judicial district of Hartford, Doc. No. CV 126035291, (September 4, 2014, Wiese, J.); Korbusieski v. CHK-Waterbury Assoc., LLC, Superior Court, judicial district of Waterbury, Doc. No. CV065001916, (August 29, 2008, Roche, J.); Yuniskis v. CVS Pharmacy, Inc., Superior Court, judicial district of New Britain, Doc. No. CV 045000074, (March 8, 2006, Domnarski, J.). The points are discussed seriatim:
A
With regard to the duty to indemnify, the law is well-settled. A case is not ripe when any claim for indemnity that plaintiff may have against the defendant is contingent on the plaintiff prevailing in the underlying action, which has not yet been adjudicated. Hamilton v. United Services Automobile Assn., supra, 115 Conn.App. 782. That is precisely the circumstance in the instant case. Therefore, until there has been a judicial determination that the tortfeasors are liable to the plaintiff, the question of whether the defendant is obligated to provide insurance coverage in this declaratory judgment action is a hypothetical one. Id.
Having disposed of the duty to indemnify issue on the grounds of ripeness, it is unnecessary to resolve the issue of whether the plaintiff has standing to raise issues regarding indemnity.
With regard to the duty to defend issue, on the other hand, the question of whether the defendant is obligated to provide a defense in a pending case is not merely hypothetical in the instant case. There is no dispute that there is an actual case pending against the tortfeasors or that an insurance policy was in effect at the time. Therefore, the court shall resolve the issue of standing with respect to the duty to defend issue.
B
With regard to standing with respect to the duty to defend, " [i]t is a basic principle of our law . . . that the plaintiff's must have standing in order for a court to have jurisdiction to render a declaratory judgment." (Citation omitted.) Travelers Casualty and Surety Company of America v. The Netherlands Insurance Company, 312 Conn. 714, 727, 95 A.3d 1031 (2014). " The question of standing to pursue a declaratory judgment is essentially one of aggrievement." (Citation omitted.) New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn.App. 585, 593, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 296 (1993). The principles regarding standing, and its aggrievement component, are well settled:
Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue . . .
Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . .
Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.(Citation omitted.) Andross v. West Hartford, 285 Conn. 309, 321-22, 939 A.2d 1146 (2008).
" [I]t is [t]he plaintiff [who] bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted; internal quotation marks omitted.) Deutsche Bank Nat. Trust Co. v. Thompson, 163 Conn.App. 827, 836, 136 A.3d 1277 (2016).
The defendant argues that the plaintiff cannot bring suit to have a court declare the rights between the defendant and its insureds because this plaintiff is not a party to that contract, and otherwise has no standing to interfere. The court agrees. The court finds that the plaintiff is neither classically aggrieved nor statutorily aggrieved.
With regard to classical aggrievement, the plaintiff alleges that he is directly harmed by the defendant's refusal to provide a defense and indemnify its insured. Complaint, para. 9. However, there are no facts supporting that allegation. " [I]f the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." Burton v. Connecticut Siting Council, 161 Conn.App. 329, 346, 127 A.3d 1066 (2015), cert. denied, 320 Conn. 925, 133 A.3d 459 (2016). Moreover, the court finds that the plaintiff has no direct, personal legal interest in the controversy. It is undisputed that the plaintiff was not a party to the insurance policy sought to be construed, and the case he has brought against the alleged tortfeasor is still pending and has not yet been resolved. While he might prefer having the business and individual he is suing be backed by an insurance company able to pay a sizable judgment or settlement, that is a litigation strategy, not a right, and whether there would be a settlement or judgment sometime in the future is speculative at this point. Also, if it is a cognizable interest, it is an interest that goes to the duty to indemnify issue which is not ripe, rather than the duty to defend issue. Thus, the plaintiff has no direct interest in the contract between the insurer and its insureds with respect to the duty to defend.
With respect to statutory aggrievement, there is a statute which authorizes a direct action by a non-party to an insurance contract under some circumstances. That statute is General Statutes § 38a-321, which provides, in pertinent part, as follows:
Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.
General Statutes § 38a-321.
Under that statute, prior to bringing suit, the following conditions must be met: " (1) that the plaintiff has recovered a final judgment; (2) that the judgment is against a person who was insured by the defendant against liability on it; and (3) that the judgment remains unsatisfied." Skut v. Hartford Accident & Indemnity Insurance Co., 142 Conn. 388, 393, 114 A.2d 681 (1955). The plaintiff does not and cannot, claim that he qualifies under this statute. The plaintiff has not recovered a final judgment.
Third party litigation over insurance contracts have been allowed under some circumstances, but those circumstances are not present in the instant case. In Travelers Casualty and Surety Company of America v. The Netherlands Insurance Company, supra . our Supreme Court allowed one insurance company to bring a declaratory judgment action against another insurance company to seek to determine the existence or allocation of duty to defend a common insured. However, in that case, the court found the controversy to be " real and ongoing" in light of the plaintiff's averment that it was bearing more than its fair share of the defense because of the defendant's refusal to contribute. Id., 737. In Connecticut Insurance Guaranty Ass'n v. Raymark Corporation, 215 Conn. 224, 575 A.2d 693 (1990), it was held that persons injured in an automobile accident are proper and necessary parties to the maintenance of a suit to determine coverage of the tortfeasor's insurance policy. Id., 229. However, that case involved a suit initiated by the insurance company, which was a party to the contract and which unquestionably had a direct and immediate interest in the matter. The injured parties had an interest in the outcome of that case entitling them to notice under the declaratory judgment action procedural rules because the outcome could affect their rights, as was sharply demonstrated in DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 685-87, 846 A.2d 849 (2004). Such a pending case, initiated by the insurer, generates grounds for standing. Accord, Merrimack Mutual Fire Ins. Co. v. Selby, Superior Court, judicial district of New Haven, Doc. No. CV 07-4008234, (December 8, 2009, Fischer, J.). Likewise, cases which have recognized an injured party's standing in a declaratory judgment action concerning a coverage dispute between a tortfeasor and its insurer were cases where the insurer initiated the litigation, or where the injured party demonstrated a specific qualifying harm to a personal interest. See, e.g., Gomes v. R.P. Floors Solution, LLC, Superior Court, judicial district of Danbury, Doc. No. CV 13-6014098, (May 12, 2014, Doherty, J.); Colonial Penn. Ins. Co. v. Patriot General Ins. Co., Superior Court, Docket No. CV 95-0377876 (January 19, 1996, Licari, J.) , ; Wynn v. Commercial Union Ins. Co., Superior Court, judicial district of Stamford--Norwalk at Stamford, Docket No. CV 93-0135153 (June 13, 1994, Lewis, J.) , ; Aetna Casualty & Surety Co. v. Gentile, Superior Court, judicial district of New Haven, Docket No. CV 93-353207 (March 22, 1994, Fracasse, J.) , ; Hammond v. Council, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV89010830 (October 25, 1993, Lewis, J.) , ; see, generally, L. Russ & T. Segalia, Couch on Insurance (3d Ed. 2005) § 227:43, p. 227-60. The court is not persuaded that the plaintiff's allegations show him to have standing to initiate the instant case with respect to the duty to defend issue.
Alternatively, plaintiff argues that he has a right to bring suit as a third party beneficiary to the contract between the insurer and insured, citing Connecticut Business and Industries Assn., Inc. v. Commission on Hospitals and Health Care, 218 Conn. 335, 589 A.2d 356 (1991). Again, the court is not persuaded. That case did not address third party beneficiaries or liability insurance. Moreover, it reiterated that a plaintiff must allege a direct personal injury from the conduct challenged in order to bring a declaratory judgment action, and it found none in that case. Id., 346-47. On the other hand, Superior Courts judges who have addressed the issue in contexts similar to the instant case have concluded that " an injured party is not, without more, a third-party beneficiary of the insurance contract between the tortfeasor and the insurance company." (Citation omitted.) Shedrick v. Trantolo and Trantolo, LLC, Superior Court, judicial district of Middlesex, Doc. No. CV 04-40000934, (July 13, 2006, Dubay, J.); Chapell v. Larosa, Superior Court, judicial district of New London, Doe. No. CV 990552801, (January 5, 2001, Corradino, J.) (collecting cases); accord, Rivera v. Great American E& S Ins. Co., Superior Court, judicial district of New London, Doc. No. CV 11-6010532, (May 3, 2012, Martin, J.). More is not alleged or demonstrated in the instant case.
Inasmuch as the plaintiff was neither a party to the contract nor an intended beneficiary, and in the absence of facts showing a harm to a specific interest, the plaintiff lacks standing. " One who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract . . ." (Citation omitted; internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn, 572, 579, 833 A.2d 908 (2003). " The contract from which the plaintiff seeks the ultimate benefit of coverage for [his] claims is not one to which [he] is a party or intended beneficiary. Rather, the contract upon which [he] seeks a declaratory judgment is between the defendant[s] and [their] insurance carrier . . . the plaintiff lacks standing to pursue a declaratory judgment action." Hamilton v. Philadelphia Indemnity Insurance Company, Superior Court, judicial district of Danbury, Doc. No. CV 07-4007720 (October 14, 2008, Shaban, J.) , . Likewise, it has been observed that third-party attempts to bring declaratory judgment actions to determine the duty of a tortfeasor's liability insurer to defend the underlying tort action have frequently been found to be improper on the ground that, in essence, the third party lacked the standing to raise the issue. L. Russ & T. Segalia, Couch on Insurance (3d Ed. 2005) § 227:32, p. 227-45.
IV
For all of the foregoing reasons, the defendant's motion to dismiss is granted. Judgment shall enter in favor of the defendant accordingly.