Opinion
No. CV 10 6003815 S
July 20, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
Before the court is the motion to dismiss (#103) of the defendant Mark Romesburg. The issue presented by the motion to dismiss is whether Mark Romesburg, a resident of Texas, was properly served with process where the marshal served a copy of the summons and complaint on the Connecticut commissioner of motor vehicles (commissioner) and then sent another copy by "registered-certified mail," postage paid, to his address as it appeared in the commissioner's file, an address located in Connecticut. Based on the following analysis of the facts and the law, the court holds that it lacks personal jurisdiction over Mark Romesburg due to insufficient service of process. Therefore, the motion to dismiss is granted.
I BACKGROUND
The plaintiff, Gary Tatro, brings this action against the defendants, Morgan P. Romesburg, Mark Romesburg and Trumbull Insurance Company (Trumbull). The operative complaint is the amended complaint (#110) filed May 14, 2010.
A Facts
The pertinent facts, as alleged in the amended complaint, are as follows: On May 4, 2008, the plaintiff was driving an automobile north on Route 12 in Groton, Connecticut. Approximately 100 feet south of Crystal Lake Road, Morgan Romesburg, who was driving an automobile south on the same road, turned left into the plaintiff's lane, causing a collision with the plaintiff's vehicle. The collision was due to the negligence of Morgan Romesburg and caused the plaintiff to suffer severe personal injuries. The plaintiff had an automobile insurance policy with Trumbull at the time of the collision, pursuant to which Trumbull was obligated to provide uninsured and underinsured motorist coverage to the plaintiff.
Morgan Romesburg resided in Connecticut with Mark Romesburg, his father, at the time of the collision. Mark Romesburg had an automobile policy with an insurance company that provided coverage for injuries caused by the negligent operation of a motor vehicle by members of his household. Following the accident, Mark Romesburg failed to report the collision to his insurance company and furthermore refused to provide the name of his insurance company and policy number to the plaintiff.
On the basis of the above allegations, the plaintiff advances three claims. The first claim is for negligence and is directed at Morgan Romesburg. The second is a claim for uninsured and underinsured motorist benefits directed at Trumbull. Finally, the third claim is for breach of a third-party beneficiary contract against Mark Romesburg on the basis of his alleged failure to report the collision to his insurance company as well as his alleged refusal to reveal to the plaintiff the name of the insurance company and policy number. The plaintiff seeks money damages.
B Procedural History
The plaintiff commenced the present action by service of process on April 1, 2010, against Morgan Romesburg and Trumbull. That same day the plaintiff purported to effect service also upon Mark Romesburg, according to the marshal's return, in the following manner: On April 1, 2010, the marshal unsuccessfully attempted to locate Mark Romesburg at the address on file with the commissioner, 18 Maple Road, Quaker Hill, Connecticut. Thereafter, that same day, the marshal left a copy of the process at the commissioner's office in Wethersfield, Connecticut. Thereafter, that same day, the marshal "deposited in the Post Office at Uncasville, Connecticut, postage paid and registered-certified, return receipt requested, [a copy of the process] . . . addressed to the within named defendant, Mark Romesburg, that being the address on file at the office of the [commissioner], 18 Maple Rd., Quaker Hill, CT 06375." (Marshal's Return, p. 2.)
Mark Romesburg filed a timely appearance on April 13, 2010, and subsequently filed the present motion to dismiss on May 4, 2010, along with a memorandum of law (#104). The plaintiff filed an objection to the motion to dismiss (#106) on May 5, 2010, to which Mark Romesburg replied (#107) on May 11, 2010. The court heard oral argument on the motion to dismiss on July 6, 2010.
II 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). Under Practice Book § 10-31(a), "[t]he motion to dismiss shall be used to assert . . . insufficiency of service of process." "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).
"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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"As a general matter, the burden is placed on the defendant to disprove personal jurisdiction." Id., 515. "If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual [however] it is the plaintiff's burden to prove the court's jurisdiction." Id.
Mark Romesburg moves to dismiss the claim against him because of insufficient service of process. He argues that, on April 1, 2010, he resided in Texas and not at the address where the marshal mailed a copy of the process, having sold his residence at that address in July 2008. Therefore, he concludes that such address was not his "usual place of abode" as contemplated by General Statutes § 52-57(a).
The text of the motion to dismiss actually states that Mark Romesburg moves to dismiss "based on lack of jurisdiction over the [person] and insufficiency of service of process." The plaintiff, assuming that Mark Romesburg's reference to "lack of jurisdiction over the [person]" signals an intent to argue that the court lacks a basis for asserting personal jurisdiction, argues that the court has a basis for personal jurisdiction over him because Morgan Romesburg resided in his household at the time of the collision. Mark Romesburg does not argue in either his memorandum of law or his reply that the court lacks a basis for personal jurisdiction over him. Therefore, if he made any such contention in the motion to dismiss, he subsequently abandoned it and the court need not consider it. See Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120-21, 830 A.2d 1121 (2003).
Furthermore, it should be noted that Mark Romesburg contested, in his reply, the court's subject matter jurisdiction on the ground that the plaintiff has not alleged a claim against him. (Reply, p. 2.) He made this argument prior to the plaintiff's filing of the amended complaint, however. In the amended complaint, the plaintiff makes a claim against Mark Romesburg in count three. In any event, a legally sufficient cause of action is not an element of the court's subject matter jurisdiction. See Tedford v. Buck, Superior Court, judicial district of New London, Docket No. CV 05 4003194 (June 4, 2008, Peck J.) ( 45 Conn. L. Rptr. 654) (treating motion to dismiss for lack of subject matter jurisdiction as motion to strike because legal sufficiency of complaint was not relevant to issue of court's subject matter jurisdiction). Therefore, the court has subject matter jurisdiction in the present case.
The plaintiff counters with the argument that he did not serve Mark Romesburg under § 52-57(a) but rather under General Statutes § 52-62, which permits service against a nonresident by leaving a copy of process with the commissioner and then mailing a second copy to the nonresident's last known address. The plaintiff asserts that the marshal complied with all the requirements of § 52-62. He further notes that Mark Romesburg received actual notice of the action and filed a timely appearance.
General Statutes § 52-62 provides in relevant part: "(a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . . ."
"(c) Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant or representative at his last-known address . . ."
In response, Mark Romesburg argues that he cannot be served under § 52-62 because there is no allegation that he "caused a motor vehicle to be used or operated . . . in this state." (Reply, p. 1.) He contends that he did not operate the motor vehicle that was involved in the collision and that no person reasonably construing the statute could conclude that he caused such vehicle to be operated within the state in any way. Furthermore, he contends that the statute applies only to actions involving the negligence of the nonresident with the respect to the use or operation of the motor vehicle and that the plaintiff has not alleged any such negligence.
Service under § 52-62 is only permissible where the claim against a party is based on alleged negligence in the use or operation of a motor vehicle within the state. See Ehlert v. McElroy, 14 Conn.Sup. 496, 497 (1946). The party so served need not have personally used or operated the vehicle, however; it is permissible to effect service upon a party under § 52-62 on the basis of the use or operation of a motor vehicle by that party's agent. See Boylston v. Stauffer, 7 Conn.Sup. 42, 42-43 (1939). Furthermore, the law presumes that an operator of a vehicle owned by another is acting as an agent of that owner, although such presumption may be rebutted. See General Statutes § 52-183.
General Statutes § 52-183 provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
Based on the existing record, the court finds that the marshal attempted to serve Mark Romesburg under § 52-62, as the plaintiff argues. According to the marshal's return, the marshal brought a copy of the process to the office of the commissioner and then mailed, in the manner required by the statute, a copy to what the marshal indicated was Mark Romesburg's last known address. See General Statutes § 52-62(c).
The court also finds that service under § 52-62 was not permissible because there is no allegation or other proof establishing that Mark Romesburg caused a motor vehicle to be used or operated in the state. The plaintiff alleges, with respect to Mark Romesburg, merely that he had an insurance policy that covered liability for injuries caused by the negligent operation of a motor vehicle by members of his household, including Morgan Romesburg, and that he did not inform his insurance company of the collision in which the plaintiff was injured or disclose to the plaintiff the name of such company and the policy number. In fact, the plaintiff alleges that it was Morgan Romesburg who negligently operated a motor vehicle. During oral argument on this motion the plaintiff agreed that the motor vehicle that was involved in this collision was owned by Morgan Romesburg at the time when he resided in the home of Mark Romesburg in Waterford, Connecticut. Thus, the plaintiff does not allege or establish that Mark Romesburg was the owner of such motor vehicle or that Morgan Romesburg was otherwise acting as his agent.
See Transcript from oral argument on July 6, 2010, appended hereto as an exhibit.
III CONCLUSION
Based on the foregoing, the court finds that service of process on Mark Romesburg was legally insufficient. Accordingly, the court lacks personal jurisdiction over him. The motion to dismiss is therefore granted.
It is so ordered.
APPENDIX A
I didn't address 52-63 because I hadn't heard that claim.
THE COURT: Well, what I wanted to do — all right. I'll take the papers on the matter. What I wanted to make sure was normally, you can't add any additional information arguing the motion to strike.
But I gather there is no dispute as to the fact that at the time of the service, Mark Romesburg was a resident of Texas and there is some information in the affidavit with regard to a deed on July — when was the date of the accident?
ATTY. WARD: 2007 — no, 2008. It was July 2008, Your Honor.
ATTY. MORELLI-WOLFE: May 4th.
THE COURT: May 4th, 2008. All right. The affidavit indicates that they sold the house in Waterford on July 31st, 2008. I think those facts are not disputed and there's no dispute that the motor vehicle that was involved in this collision was owned by Morgan Romesburg at a time when he resided in the home of Mark Romesburg in Waterford, Connecticut.
ATTY. MORELLI-WOLFE: That's correct.
THE COURT: All right.
ATTY. WARD: He was an adult at the time, Your Honor.
THE COURT: Pardon?
ATTY. WARD: Morgan was over. 18 at the time.
THE COURT: Do you dispute that?
ATTY. MORELLI-WOLFE: I think it's irrelevant, but no, I don't dispute it.
THE COURT: All right. Very good. Thank you, counsel.
ATTY. WARD: Thank you, Your Honor.
ATTY. MORELLI-WOLFE: Thank you, Your Honor.
THE COURT: I'll take the papers on the matter.
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