Opinion
No. CV 08 5008708
February 20, 2009
MEMORANDUM OF DECISION MOTION TO DISMISS
This case arises out of automobile accident that occurred on August 27, 2006, in Stonington, Connecticut. In a one-count complaint, filed on September 22, 2008, the plaintiff, Karen Barker, alleges that she was negligently struck from behind by the defendant, Kerry Rosati, a Rhode Island resident. The plaintiff further alleges that, as a result of the collision, she suffered substantial physical injury and economic loss. The defendant has moved to dismiss the complaint alleging insufficient service of process pursuant.
In the return of service attached to the complaint, state marshal Joseph C. Heap, II, states that he took the following steps to serve process on the defendant: on August 27, 2008, he left a true and attested copy of the writ, summons and complaint with the commissioner of motor vehicles and mailed a copy of the writ, summons and complaint to the defendant at 25 Clark Street Westerly, Rhode Island, 02981.
Counsel for the defendant filed an appearance on October 23, 2008. Pursuant to the provisions of Practice Book § 10-30, counsel thereafter filed a motion to dismiss on November 3, 2008, within thirty days of filing his appearance. The defendant filed a memorandum of law with an affidavit appended stating that in October 2006, after the accident, she moved her residence to 30 Becker Avenue, Apartment 1, Johnston, Rhode Island, and so notified the Rhode Island Department of Motor Vehicles at the time. She further claims that she never received a copy of the writ, summons and complaint in this case. The defendant also submitted the return of marshal Heap as evidence that he mailed a copy of the writ, summons and complaint to her former address. In the memorandum of law submitted in support of the defendant's motion, counsel represents that the only notice of the complaint came by way of a courtesy copy to the defendant's insurance carrier provided by the plaintiff's counsel, a fact which is not in dispute.
"Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss . . . If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction . . . [Furthermore], a motion to dismiss admits all facts well pleaded and invokes supporting affidavits that contain undisputed facts." (Citation omitted; internal quotation marks omitted). Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26, 917 A.2d 959 (2007). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "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).
In support of her motion, the defendant argues that while the plaintiff mailed process to a location where the defendant once lived, at the time of the mailing, she had not lived at that address for almost two years. The defendant further claims that the mailing of a "courtesy" copy of the writ, summons and complaint to her insurance company, is insufficient. Because the writ, summons and complaint was not sent to her "last known address," the defendant states that she was never served process; the plaintiff did not comply with the statutory notice requirements for serving nonresident drivers found in General Statutes § 52-62; and, therefore, the case should be dismissed.
General Statutes § 52-62 provides in pertinent 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 . . .
(Emphasis added.)
(d) For the purposes of this section, the term "nonresident" includes a person who is a resident of this state at the time a cause of action arises and who subsequently moves to another jurisdiction.
In the objection to the defendant's motion, the plaintiff argues that while service of process did not reach the defendant at her old address, the court should not dismiss her case because the plaintiff properly served the Connecticut commissioner of motor vehicles. The plaintiff further maintains that serving the motor vehicle commissioner essentially fulfills the purpose of § 52-62 and that actual notice to the defendant occurred as demonstrated by the appearance of counsel on her behalf.
"[W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Citation omitted; internal quotation marks omitted.) Commissioner of Transportation v. Khan, 262 Conn. 257, 272, 811 A.2d 639 (2003). The plaintiff's argument relies substantially on § 52-62(a) and downplays the further requirements contained in § 52-62(c). Section 52-62(c) provides in relevant part: "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 . . . a true attested copy thereof, and by sending to the defendant 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 . . ." (Emphasis added.) In Hartley v. Vitiello, 113 Conn. 74, 154 A. 255 (1931), the Supreme Court provided ample and direct guidance regarding service of process on a nonresident motorist under § 52-62. As to the plaintiff's first argument, that service on the commissioner of motor vehicles alone satisfies the notice requirements of § 52-62, the court made clear in Hartley that § 52-62 requires both serving process on the commissioner of motor vehicles and mailing process to the nonresident defendant at his or her last known address. Id., 79. The court stated, "[t]he leaving of a copy with or at the office of the commissioner and the sending of a copy to the defendant are by the statute made part of the service of process and are linked up in such a way that the legislature obviously regarded them as parts of one act." Id.
The court in Hartley also stressed the importance of mailing process to a location where the defendant can be expected to receive it, in order to comply with § 52-62. The court stated, "[t]he requirement that the copy be mailed to the defendant at his `last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it. Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared, it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute." (Emphasis added.) Id., 80.
In the present case, it is uncontested that the plaintiff mailed notice to an address where the defendant had not lived for almost two years. Further, the defendant's affidavit indicates that she had notified the Rhode Island department of motor vehicles of her new address at the time of her move, and was in no way trying to conceal her whereabouts. Because the defendant's current address at the time of service was readily ascertainable, the plaintiff, by mailing process to a long invalid address, put herself "in peril" of failing to meet the notice requirements of § 52-62 and thereby depriving the court of jurisdiction over the defendant.
The plaintiff's assertion that the defendant's appearance in the case demonstrates that the defendant had actual notice of the action, and therefore cures any defects in the service of process, is unavailing. As the Appellate Court has noted, "prior to 1978, a defendant wishing to contest the presence of personal jurisdiction was required to file a `limited' or `special' appearance, as filing a general appearance was a submission to the general jurisdiction of the court . . . This type of appearance is no longer recognized or required . . . Practice Book § 10-30 currently provides that any defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, so long as the defendant files a motion to dismiss within thirty days of the filing of an appearance." (Citation omitted). Green v. Simmons, 100 Conn.App. 600, 603 n. 6, 919 A.2d 482 (2007). Thus, "the fact that an appearance of counsel for the [defendant] and a motion to dismiss were timely filed [does] not cure [defects in the service of process] as the Practice Book contemplates the validity of such motions under these circumstances." Cambridge Mutual Fire Ins. Co. v. Bemis, Superior Court, judicial district of New London, Docket No. CV 07 4007914 (April 30, 2008, Peck, J.).
The plaintiff cites to Trinidad v. Munez, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5001231 (March 13, 2007, Rubinow, J.) (43 Conn.L.Rptr. 54), for the proposition that filing an appearance in an action demonstrates the defendant's actual notice, and therefore fulfills the purpose of § 52-62. This court respectfully declines to follow the reasoning used in that case because that holding, if extended, would render nearly all objections to jurisdiction based on insufficient service of process moot as the only way to contest jurisdiction is to file an appearance followed by a timely motion to dismiss as prescribed in Practice Book § 10-30. Further, that decision's interpretation of Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007), appeal withdrawn October 24, 2007, is over broad. The decision in Fine Homebuilders related to a very narrow factual circumstance that does not apply in the present case. In that case, the Appellate Court held that where a security gate prevented abode service, by sliding process under the front door of the defendant's dwelling, the purpose of abode service, the reasonable likelihood that the defendant would receive actual notice, could be met by leaving process in the bars of the main gate. Id., 861-62. This narrow situation is a far cry from the plaintiff in a nonresident motorist case mailing process to an address that had been invalid for almost two years. Mailing process to an invalid address does nothing to ensure that the defendant receives actual notice of the pending litigation and does not further the purpose of § 52-62.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant's motion to dismiss based on lack of jurisdiction over the defendant due to insufficient service of process is hereby granted.
This dismissal may not be fatal to the plaintiff's claim. See General Statutes § 52-592(a) ("If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or . . . because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence . . . a new action . . . for the same cause at any time within one year after the determination of the original action . . .").