Opinion
CV166062813S
05-24-2017
Town of Hamden v. The Hanover Insurance Company et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#115)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Town of Hamden, commenced this action against the defendant, The Hanover Insurance Company (" Hanover"), by service of writ, summons and complaint, with a return date of June 21, 2016. The complaint was returned to court on June 8, 2016, and alleges the following facts. The defendant Hanover is a foreign corporation organized and existing under the laws of the State of New Hampshire, with its principal address at 440 Lincoln Street, Worcester, Massachusetts, 01653 and is authorized to insure in the state of Connecticut. State Street Holdings, LLC (" State Street") is a limited liability company organized and existing under the laws of the state of Connecticut with a principal place of business at 282 State Street, North Haven, Connecticut, 06473.
On or about January 11, 2005, the Hamden Planning & Zoning Commission approved an application for a special permit for State Street with respect to property known as 2906, 2932 and 2950 State Street, Hamden, Connecticut. Pursuant to the terms of the approval, State Street was required to post a performance bond in favor of the town of Hamden in the amount of $484, 817.00, to ensure the completion of the development. On or about June 25, 2007, State Street posted a surety bond from Hanover in favor of the town of Hamden in the amount of $484, 817.00. At the request of State Street, the bond was subsequently reduced to $272, 027.00 on or about November 12, 2008. State Street failed to complete the project as per the terms of its approval and informed the plaintiff that it was unable to complete said improvements. On or about May 14, 2015, the town of Hamden gave notice to the defendant Hanover of its intention to call the bond in order to complete the improvements. On or about June 9, 2015, the town of Hamden Planning and Zoning Commission voted to call the bond. By letter dated July 30, 2015, the town of Hamden informed the defendant Hanover that the Planning and Zoning Commission had voted to call the bond. Despite said notice, the defendant failed, refused and neglected to honor the claim on the bond. As a result, the defendant Hanover breached its obligation to the town of Hamden under the terms of the bond. The town sought damages pursuant to the terms of the surety bond.
On October 12, 2016, Hanover moved for permission as third-party plaintiff to implead the defendants, State Street, Andrew V. Forte, Susan L. Forte, Richard J. Vizziello and Susan J. Vizziello. The court granted the motion. The third-party complaint alleges indemnification and reimbursement against the defendants pursuant to the surety bond. Count one alleges contractual indemnification and count two alleges common-law reimbursement.
The third-party defendants, Richard J. Vizziello and Susan J. Vizziello, filed a cross complaint against third-party defendants, State Street and Andrew V. Forte. Both counts one and two appear to allege common-law indemnification against the defendants, State Street and Forte.
On January 5, 2017, the town settled its claim against Hanover and withdrew its action against Hanover. Pending are Hanover's claims against State Street, Andrew V. Forte, Deborah L. Forte, Richard J. Vizziello and Susan J. Vizziello.
The defendant, Andrew V. Forte has moved to dismiss the plaintiffs' cross complaint pursuant to the prior pending action doctrine. Specifically, the defendant, Forte, claims that the plaintiff, Richard J. Vizziello, has previously filed the same claims in an action known as Richard J. Vizziello v. Andrew V. Forte, Superior Court, judicial district of New Haven, Docket No. CV-17-6068352-S.
The plaintiff filed an objection to the motion to dismiss and argues that the cross complaint alleges indemnification which is a different cause of action from the causes of action alleged in the prior pending action. The court heard oral argument on the motion at short calendar on May 22, 2017.
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.) Bacon Constr. Co. v. Dep't of Pub. Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). " [A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009). Our Supreme Court has stated that " [t]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court." (Internal quotation marks omitted.) Id., 395.
" 'The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.' (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998); see also Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985). " 'The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets.' (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988). The rule, however, is not one 'of unbending rigor, nor of universal application, nor a principle of absolute law . . .' (Internal quotation marks omitted.) Id., at 584, 542 A.2d 1124. Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint. See Gaudio v. Gaudio, 23 Conn.App. 287, 297, 580 A.2d 1212 (concluding on basis of equitable principles that count of subsequent action improperly dismissed despite fact that allegations in that count virtually identical to allegations in prior pending action), cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); Quinebaug Bank v. Tarbox, 20 Conn. 510, 514 (1850) (general rule does not prevail where it appears second action is not vexatious, but is brought for good cause); see also BCBS Goshen Realty, Inc. v. Planning & Zoning Commission, 22 Conn.App. 407, 409, 577 A.2d 1101 (1990) (flexibility of prior pending action doctrine permits dismissal of prior action, as opposed to subsequent action). We recognize that this statement of the scope of the doctrine's application, on the one hand, provides that the existence of claims that are virtually alike does not require dismissal in every case; see Cumberland Farms, Inc. v. Groton, supra, 247 Conn. at 216-17, 719 A.2d 465; Quinebaug Bank v. Tarbox, supra, at 514; while also suggesting that the doctrine is always applicable where the two actions are virtually alike, and in the same jurisdiction. Cumberland Farms, Inc. v. Groton, supra, at 216, 719 A.2d 465.
" [T]he trial court must [therefore] determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine's application. In order to determine whether the actions are virtually alike, [the trial court] must examine the pleadings.
" If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion. In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated. Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action." Bayer v. Showmotion, Inc., supra, 292 Conn. 395-97.
" The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically." (Internal quotations marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988). This court has reviewed both complaints in the present action and in the prior action to ascertain whether the actions are brought to adjudicate " the same underlying rights" of the parties (internal quotation marks omitted); Cumberland Farms, Inc. v. Groton, supra, 247 Conn. at 217, 719 A.2d 465; and are thus, virtually alike. Here, construing the present cross complaint in the light most favorable to the pleader, for the purposes of applying the prior pending action doctrine, the plaintiffs in the cross complaint have alleged common-law indemnification against both Andrew Forte and State Street. The prior pending action is solely against Andrew Forte and not against State Street, and the claims alleged are for an accounting (count one); breach of fiduciary duty (count two); conversion (count three); and statutory theft (count four).
Additionally, " [i]n determining if two actions are 'virtually alike, ' the court also looks to 'the prayer for relief in [the] two complaints in order to ascertain the ends or objects of [the] two actions.' Halpern v. Board of Education, supra, 196 Conn. at 653, 495 A.2d 264." Pools By Design, Inc. v. Nationwide Mutual Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-07-5006512-S, (July 16, 2008, Upson, J.). In the prior pending action, both counts three and four allow for punitive damages. In the present case, the plaintiffs in the cross complaint are seeking to be indemnified or reimbursed for monies the third-party plaintiff, Hanover, " recovers or is awarded in this litigation by way of judgment or settlement, and Richard J. Vizziello and Susan J. Vizziello are determin[ed] to be liable or responsible for payment of same." Cross Compl., count two, ¶ 9, p. 5. Since the present action asserts indemnification against Forte and State Street that cannot be satisfied by a ruling in the original action, in which the claims are against Forte individually and not against State Street, and which also seek punitive damages, the same underlying rights that are asserted in the present action will therefore not be adjudicated in the prior pending action, and the court therefore holds that the two actions are not seeking to achieve the same goals, objective, or ends.
Accordingly, having carefully reviewed the pleadings and compared the two complaints, the court cannot conclude that the actions are virtually alike. The defendant's motion to dismiss is therefore denied.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied.