Opinion
No. CV 03 0480878
August 31, 2004
MEMORANDUM OF DECISION
On August 12, 2003, the plaintiff, Big East Equipment Company, Inc., filed a summons and complaint seeking a declaratory judgment as to whether the "Business Automobile Insurance Policy" it alleges was issued by the defendant, Ohio Casualty Insurance Company, for the period of June 30, 2002 to June 30, 2003, covers and indemnifies the plaintiff for business equipment lost in an accident on November 19, 2002.
On December 5, 2003, the defendant filed a motion to dismiss the plaintiff's complaint on the grounds that: (1) the declaratory judgment action is improper under Practice Book § 17-55(3) because there is another form of proceeding that can provide the plaintiff with immediate redress; (2) the plaintiff failed to append to the complaint a certificate stating that all interested parties have been joined or notified of the declaratory judgment action, as required by Practice Book § 17-56(b); and (3) there is no actual bona fide and substantial question in dispute between the parties as there is substantial uncertainty as to whether a legal relationship exists between them. In the motion and the accompanying memorandum in support of the motion, the defendant suggests that the court does not have jurisdiction over it because the plaintiff named another entity, the Ohio Casualty Group, in the complaint, even though the plaintiff had initially named in the summons and made service of process on the defendant.
In response, the plaintiff filed an "objection" to the motion accompanied by an amended complaint on May 21, 2004, correcting the defendant's name from "Ohio Casualty Group" in the original complaint to "Ohio Casualty Insurance Company" in the amended complaint.
The plaintiff's "objection to motion to dismiss" does not contain any law, but instead prefaces the changes made in the amended complaint. Other than correcting the name of the defendant, the plaintiff does not allege any additional or different facts in the amended complaint.
"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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The standard of review of a motion to dismiss is . . . well established. 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250-51, 851 A.2d 1165 (2004).
"By contrast, the motion to strike attacks the legal sufficiency of the pleading." Egri v. Fosie, 83 Conn.App. 243, 247, 848 A.2d 1266 (2004). "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that the plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." Id. "The distinction between the motion to dismiss and the motion to strike is not merely semantic. If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling . . . The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings. See Practice Book § 10-44." (Citation omitted.) Id., 249.
"That critical distinction implicates a fundamental policy consideration in this state. Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our practice does not favor the termination of proceedings without a determination on the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Citations omitted; internal quotation marks omitted.) Id., 249-50.
The first ground asserted by the defendant more aptly supports a motion to strike than a motion to dismiss as it relates to the sufficiency of the plaintiff's pleadings rather than the court's jurisdiction. Under this ground, the defendant maintains that the declaratory judgment action is improper under Practice Book § 17-55(3) because there is another form of proceeding that can provide the plaintiff with immediate redress. Specifically, the defendant asserts that the plaintiff could have adequately pursued a remedy at law under a claim of breach of contract instead of seeking the "extraordinary remedy" of a declaratory judgment.
Practice Book § 17-55(3) provides that "[i]n the event there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." Our Supreme Court has acknowledged that this provision "allows the trial courts wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete." (Emphasis added.) England v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981). The provision relates, however, to the court's discretion rather than its jurisdiction. Wolff v. Town of Watertown, Superior Court, judicial district of Waterbury, Docket No. CV 03 0175538 (March 25, 2004, Holzberg, J.) ( 37 Conn. L. Rptr. 27). Thus, a challenge to the propriety of a declaratory judgment on these grounds must be raised in a motion to strike. Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 293, 596 A.2d 414 (1991).
The second ground advanced by the defendant would also be more appropriately asserted in a motion to strike. The defendant maintains that the plaintiff's complaint is insufficient because the plaintiff had not appended a certificate stating that all interested parties had been joined or notified of the action, as required by Practice Book § 17-56(b). Practice Book § 10-39(a)(3) expressly directs that "any party [wishing] to contest the legal sufficiency of any complaint . . . pursuant to Section 17-56(b) . . . may do so by filing a motion to strike the contested pleading or part thereof." Additionally, this challenge relates to the sufficiency of the plaintiff's pleadings rather than the court's jurisdiction, thus, the defendant should have raised it in a motion to strike.
Practice Book § 17-56(b) provides in relevant part:
All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof . . .
The party seeking the declaratory judgment shall append to its complaint . . . a certificate stating that all interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice.
The third ground advanced by the defendant in support of the motion to dismiss is that there is no "actual bona fide and substantial question in dispute which requires settlement between the parties," an enumerated condition to bringing a declaratory judgment action required under Practice Book § 17-55(2). The defendant asserts that there is no dispute between the parties because it had not issued the policy that is the subject matter of the complaint. As proof, the defendant filed with its memorandum, a duplicate of a letter sent to the plaintiff from its business automobile insurer dated September 20, 2002. The letter identifies West American Insurance Company (West), not the defendant, as the plaintiff's insurer during the time of the claimed loss. The plaintiff has neither contested this assertion nor presented any evidence to show a relationship between the parties.
From the pleadings, it appears that the plaintiff has commenced action against the wrong party. West is the entity that issued the plaintiff's insurance policy, so West is the entity against whom the plaintiff should seek a declaratory judgment. While bringing suit against the wrong party is a valid reason for contesting the appropriateness of an action, it does not implicate a violation of Practice Book § 17-55(2).
By equating the plaintiff's failure to bring suit against a proper defendant to a violation of Practice Book § 17-55(2), the defendant misconstrues the meaning and intent of this statutory requirement. "This provision means no more than that there must appear a sufficient practical need for the determination of the matter, and that need must be determined in the light of the particular circumstances involved in each case." Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165 (1951) (referring to precursor of Practice Book § 17-55(2) containing similar requirement of "an issue in dispute or an uncertainty of legal relations which requires settlement between the parties"). Such requirement is to ensure that a declaratory judgment proceeding is not "utilized merely to secure advice on the law . . . or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights . . ." (Citations omitted; internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 323, 709 A.2d 1089 (1998), 376 A.2d 359 (1997). As the provision does not specifically pertain to bringing suit against a proper party, the plaintiff's naming of a wrong party fails to constitute a violation of this provision.
Moreover, a motion to dismiss is not the proper procedural vehicle for raising this challenge. "[S]uing the wrong party, unless that party is a statutorily mandated party, is not a jurisdictional defect." Ferguson v. Ga-Na-Den Too Apartments, Superior Court, judicial district of Windham at Putnam, Docket No. CV 00 0063076 (September 20, 2000, Potter, J.). Nor, does it suggest that the court lacks subject matter or personal jurisdiction, improper venue, or insufficiency of service of process, one of the four grounds that may be asserted in a motion to dismiss, as enumerated under Practice Book § 10-31(a)(1)-(4).
Practice Book § 10-31(a) provides in relevant part: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of service of process."
A motion to dismiss is not the proper procedural vehicle to challenge the declaratory judgment action on any of the three grounds asserted by the defendant. Accordingly, the defendant's motion to dismiss is denied.
Howard Zoarski
Judge Trial Referee