Opinion
No. X04-CV 03-103524 S
May 21, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This is one of seven cases arising out of a fatal motor vehicle accident which occurred in the early morning hours of April 16, 2000. Anthony Sulls, allegedly intoxicated, was driving a motor vehicle in which William Ridgaway, Jr. and Frank Sestito, Jr. were passengers. The automobile veered off Route 12 in Ledyard, and collided with a pole and rock outcropping. Mr. Sulls and plaintiff's decedent died from their injuries. The seriously injured passenger, Frank Sestito, passed away several years later. Silk, LLC., the establishment where Mr. Sulls, it is alleged, was served and consumed excessive amounts of alcohol on the night of the accident commenced this action against certain insurance agents and brokers who purported to secure basic and excess liquor liability insurance for it.
Defendants Webster Insurance, Inc and Louis Levine Agency, Inc. have filed a motion to dismiss, alleging that the case is not ripe for adjudication. The remaining defendant, Cowles and Connell of CT, Inc., joins them in the motion. They rely in particular on the unreported case of Tri-State Contracting, LLC. v. Ferguson McGuire, Inc., 2003 Ct. Sup. 10660, 35 Conn. L. Rptr. 453, judicial district of Tolland, No. X0 7CV03 00808125 (Sept 10, 2003, Sferrazza, J.). The court concludes, given the differing allegations of the pleadings in the case before the court and Tri-State, that the case is inapposite. For the reasons set forth in detail below, the court denies the motion to dismiss and determines that it has jurisdiction to hear this matter.
DISCUSSION 1. Motions to Dismiss CT Page 8216
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "In ruling upon whether a complaint survives a motion to dismiss, 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." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). Further, "a motion to dismiss is not designed to test the legal sufficiency of a complaint . . ." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
"[I]f a pleading . . . on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted, a motion to strike is required . . . A motion to dismiss, by contrast, 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. at 544. This distinction is important to observe, given the arguments advanced by the parties.
2. Allegations of the complaint
Pending before the court in this case against the agents and brokers is an eight-count complaint seeking a declaratory judgment to impose coverage. The complaint alleges that the plaintiff Silk, LLC requested the defendant agents to secure for it the same liquor liability insurance as had existed for the previous establishment at that location. The complaint alleges that coverage confirmations for liability insurance including liquor liability were issued by the brokers and agents, financing secured and progress payments begun. Subsequently a binder was issued by the insurance company. Nonetheless, when notice of the accident was provided, liquor liability coverage in excess of $100,000 was declined. The insurance company's determination that there was no coverage, for purposes of the motion to dismiss, is taken as true.
3. Justiciability and Ripeness CT Page 8217
Defendants claim that there is no case or controversy before the court capable of adjudication in this declaratory judgment action brought by Silk against the insurance carrier. The doctrine of justiciability is premised on the fundamental principal of our jurisprudence that "courts are established to resolve actual controversies . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated . . . and (4) that the determination of the controversy will result in practical relief to the complainant." American Premier Underwriters, Inc. v. N.R.R. Pass. Corp., 47 Conn. App. 384, 388-89, 704 A.2d 243 (1997). Where there is no case or controversy before the court, there is no jurisdiction. See also Milford Power Co. v. Alstom Power, Inc., 263 Conn. 616, 822 A.2d 196 (2003).
As mentioned, defendants cite Tri-State Contracting, LLC. v. Ferguson McGuire, Inc., 2003 Ct. Sup. 10660, 35 Conn. L. Rptr. 453, judicial district of Tolland, No. X0 7CV03 0080812S (Sept. 10, 2003, Sferrazza, J.), in support of their claims. In Tri-State, the court itself raised the question of whether the case before it was a controversy ripe for adjudication. Tri-State was the defendant in a declaratory judgment action brought by its insurer concerning coverage for an injury to one of Tri-State's employees. Tri-State then commenced the case before the court, alleging that if there was no coverage, then the Ferguson defendants would be liable to it. (Emphasis added.) The court concluded that these allegations did not present a case or controversy yet ripe for adjudication and dismissed the case.
Even a superficial analysis of Tri-State demonstrates that it is a case with significant differences from the cases before the court. First, this declaratory judgment action has not been commenced in this instance by the insurer, but instead by the insured. Second, the insurer has already denied coverage and it is so alleged as a fact that the court must take as true. Lastly, the real crux of the matter is that in the present case, unlike Tri-State, there is no contingent or hypothetical claim that if some future event happens, there may be liability. Taking the allegations of the complaint as established, including the denial of coverage by the insurance carriers, the court concludes that this declaratory judgment action does not assert some future contingent liability, for which the court should decline to give advisory opinions. There is practical relief that the court could award, the parties are indeed adverse and the court is competent to adjudicate the dispute. For all the foregoing reasons, the motion to dismiss is denied.
These are typically allegations in third-party claims and not in independent lawsuits.
BY THE COURT
BARBARA M. QUINN, Judge