Opinion
FSTCV166028077S
06-13-2017
Geraldo Cardozo v. Kingstone Insurance Co.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTION TO DISMISS (#104.00)
Kenneth B. Povodator, J.
Background/Factual Context
Approximately 10 years after an automobile accident, the plaintiff is suing his insurance company, based on its failure to defend and indemnify him in an action brought by parties allegedly injured in that accident. The defendant insurance company has moved to dismiss the claim, asserting both a lack of personal and subject matter jurisdiction.
The facts in this case are not in substantial dispute. In 2006, the plaintiff insured a commercial motor vehicle through the defendant; the plaintiff used a business name for the named insured, and provided a New York address for the location. The defendant did not do business in Connecticut at that time-any business-and the policy was issued to a New York business with a principal who reported a New York address (per his driver's license).
In 2007, the plaintiff was involved in a motor vehicle accident in Connecticut, and for reasons that are not clear on the record before this court, the defendant did not retain counsel to appear on behalf of the plaintiff, did not provide a defense for the plaintiff, and did not pay the resulting default judgment that was entered against the plaintiff (discussed below).
Before continuing with the facts, it likely would be helpful to review, if briefly, the related litigation history. The occupants of the " other" vehicle who were injured in the 2007 accident commenced a lawsuit against the plaintiff, Samelko v. Cardozo, FBTCV0950247625, which resulted in a default judgment being entered against the current plaintiff in favor of plaintiff Samelko and his passenger (#108.00). Apparently of unknown or unrecognized significance at the time, the accident occurred as the plaintiff was backing his vehicle from a driveway onto Oaklawn Avenue in Stamford Connecticut. (According to the complaint, the specific address was 114 Oaklawn Ave.) Judgment was rendered in 2013.
In 2015, the Samelko plaintiffs commenced a direct action against defendant Kingstone Insurance Company, (Samelko v. Kingstone Insurance Co., FBTCV156051307S), relying upon General Statutes § 38a-321, a statute authorizing direct actions against insurers with respect to unsatisfied judgments against their insureds. With some overlap of the issues/claims in this motion, the defendant insurer moved to dismiss that proceeding, which motion was granted (#135.00) and reargument was denied (#137.10). (The dismissal currently is on appeal, AC 39618.)
Returning to the facts of this case, this proceeding was commenced in 2016. (Although not material to any of the issues in this case, based on the submissions of the parties with respect to the motion to dismiss, the court infers that it is probable that the precipitating event was when the plaintiff in this action was deposed in connection with the direct action proceeding.)
Returning to the 2006-2007 time frame, the vehicle was represented to be a commercial vehicle for a New York-based business. The defendant was not authorized to do business in Connecticut for any insurance-related purpose and in fact did not do any business in Connecticut at that time. In approximately 2015, the defendant applied for and obtained authorization to do business in Connecticut, for certain identified insurance lines which did not include automobile insurance.
The plaintiff submitted a property damage claim to the defendant, shortly after the 2007 accident had occurred, and the defendant paid for the repairs to the plaintiff's vehicle (subject to a deductible)-it is likely but not certain that the payment was made directly to a body shop in Stamford, Connecticut.
Tying up some loose ends: In the course of the deposition previously mentioned, the plaintiff testified that he lives at 114 Oaklawn Ave., and has lived there since approximately 2003. The address at which service was made in connection with FBTCV095024762S was an address in Port Chester in New York, and additional testimony of the plaintiff in that same deposition identified that address as something in the nature of a post office box. Similarly, although the plaintiff testified that he has been living at the Oaklawn Avenue address since approximately 2003, until approximately 2014 or 2015 the plaintiff had had a New York driver's license with a New York address, and apparently at least for a portion of that interval, listing the address in Port Chester.
When asked the location of the box, the plaintiff did not describe the location as a typical post office; the court therefore infers that it was something in the nature of a " private" post office box as operated/maintained by some commercial entities.
The plaintiff testified that he had encountered difficulties in obtaining a license and registration of a vehicle in Connecticut (due to his particular immigration status), giving that as his reason for utilization of a New York address until recently, for all motor vehicle-related purposes. (The testimony suggested that the commercial motor vehicle generally was kept in New York.)
The plaintiff does not appear to dispute the contention of the defendant that the defendant is not regularly conducting business in Connecticut, and especially did not conduct business in Connecticut prior to 2015. Other than payment of the property damage claim in connection with the underlying accident (and related correspondence), and perhaps a few other instances over the years wherein a defendant-insured vehicle was involved in an accident in Connecticut resulting in the defendant utilizing the services of independent adjusters, etc., to investigate and/or resolve such claims, the plaintiff has not pointed to any other Connecticut-related conduct of the defendant (except conduct related to this incident as is alleged in the complaint).
With the foregoing backdrop, the defendant has moved to dismiss, asserting both personal and subject matter jurisdictional defects. The defendant contends that it is not amenable to suit under the longarm statute that is applicable, and that if an effort were made to force it to defend this case, it would offend International Shoe concepts of due process. The defendant also contends that the pendency of the direct action by the parties who were injured in the accident and who obtained a judgment against the plaintiff results in a lack of standing and mootness, both of which are subject matter jurisdictional considerations.
International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
Not surprisingly, the plaintiff denies that there is a statutory or due process issue with respect to personal jurisdiction, and denies that there are any subject matter jurisdictional impediments to the court proceeding to adjudicate this dispute. The defendant's involvement in adjusting the property damage claim arising from the accident, correspondence with the plaintiff and/or representatives, the recent authorization to do business, all in the context of motor vehicle liability coverage under an insurance policy and all that that implicates, form the basis for the plaintiff's contention that the defendant can be sued in Connecticut.
Discussion
I. Subject Matter Jurisdiction
Although the defendant initially contests the existence of personal jurisdiction, the court is of the opinion that subject matter jurisdictional defects need to be addressed first. Personal jurisdictional defects are subject to waiver, and might be amenable to cure, whereas subject matter jurisdictional defects are not waivable or subject to cure; if the court were to lack subject matter jurisdiction, it would be precluded from addressing anything else, presumptively including personal jurisdictional issues. (" When the trial court concluded, even erroneously, that subject matter jurisdiction was missing, the remainder of its rulings were merely advisory and we therefore decline to review them at this juncture." Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986, 992 (1989).)
The defendant contends that the existence of a judgment against the plaintiff, coupled with the existence of a direct action against the defendant by the Samelko plaintiffs seeking satisfaction of that judgment from the defendant, render the judgment against the plaintiff effectively moot and/or deprives the plaintiff of standing. The defendant relies on the absence of any (claimed) efforts by the Samelko plaintiffs to execute upon the judgment against the plaintiff, and the corresponding lack of any harm to the plaintiff arising from the claimed breach of the duty to defend given the absence of any expenditures for attorneys fees in defending the default judgment.
For purposes of standing, the court need not address each item or element of a claim of damages-it is sufficient that the plaintiff have asserted a colorable claim of injury. A proceeding under § 38a-321 is in the nature of a subrogation claim, but the defendant has cited no authority for the proposition that it somehow extinguishes any possible direct claim against the plaintiff. The plaintiff has a six-figure judgment outstanding, and as noted in the submissions, the direct action lawsuit was dismissed and currently is on appeal. Therefore, if the court were to look at the somewhat technical legal status of proceedings, there is no viable-pending direct action in Connecticut, and there has been no suggestion that any such action is pending in any other jurisdiction. A direct action suit, even when permissible on a jurisdictional basis, still would be subject to defenses that might be available to the insurer, and there is no record reflecting the absence of any possible defenses. Additionally, the defendant has not established that in the event of a direct action, particularly if under a different state's jurisprudence (see footnote immediately above), there would be a right to a recovery beyond policy limits, and it appears that the default judgment did exceed the policy limits as identified in the parties' submissions.
The viability of a claim for attorneys fees, whether as a component of common law punitive damages or as a direct claim, probably is more amenable to resolution by way of motion to strike rather than as a claimed subject matter jurisdictional defect, especially if it is not the only claim of damages; compare, Gurliacci v. Mayer, 218 Conn. 531, 544-45, 590 A.2d 914, 922 (1991).
To the extent that New York would appear to be the most logical alternate jurisdiction if there is no jurisdiction in Connecticut, the court notes the absence of any indication as to whether New York has a similar direct-action statute.
In a wholly non-technical sense, the defendant is perhaps the last party in the world who could/should argue mootness or lack of standing due to lack of injury-other than the plaintiff himself, the defendant is the sole party which has an arguable responsibility to satisfy the judgment, an act which would render moot any concerns of the plaintiff about the outstanding judgment. Unless and until the defendant satisfies the outstanding judgment or otherwise commits to holding the plaintiff harmless from that judgment, there is a valid and potentially executable outstanding judgment against the plaintiff. In effect, the defendant is relying upon the validity of a claim that it has refused to honor/satisfy-presumably because of a good faith belief that it is not valid and enforceable against it.
Conversely, the defendant has not established a legal equivalency between the right of subrogation embodied in the direct action statute and an assignment/delegation whereby the responsibility to satisfy the judgment is (would be) completely transferred to the non-consenting defendant, so as to preclude any post-judgment relief being sought by the Samelko plaintiffs, directed to this plaintiff. By analogy, a creditor's ability to proceed against a debtor or an unconditional guarantor is at the option of the creditor-the existence of a contractual ability to proceed against the guarantor (assuming permitted by contract) does not insulate the debtor from liability based on mootness.
The court has subject matter jurisdiction. The as-yet unsuccessful efforts to bring a direct action against the defendant preclude any claim of mootness or lack of standing on the part of the plaintiff to seek relief from the defendant based on the underlying liability.
II. Personal Jurisdiction
In order to address the issue of personal jurisdiction over the defendant, the court must recognize a distinction that is perhaps not as precisely addressed by the parties as needed. Particularly in the context of the defendant having obtained authority to do business in Connecticut almost a decade after the events in question, the court must recognize the potential distinction between a statute presumptively designating an agent for service (in the absence of an actual designation of an agent for service) and general jurisdiction over a party in the constitutional sense.
The court would be remiss if it did not start by recognizing the dismissal of the direct action proceeding against the defendant. In FBTCV156051307S, the court granted the motion to dismiss, based on the absence of personal jurisdiction over the defendant insurer. With the exception of the different status of authorization to do business in Connecticut, the facts were essentially identical. (At the time the direct action was commenced, the defendant had not yet been authorized to conduct any business in Connecticut; by the time of the court's decision, the process had just been concluded; and at the time of commencement of this action, it already was a matter of record.) As recited by the court in dismissing the direct action:
The memorandum of decision can be found in Westlaw at 2016 WL 4497683 or at http://civilinquiryjud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=10791412.
The documents submitted by plaintiffs purport to show the following: The insurance policy in question covering the 2007 accident shows the insured, Mr. Cardozo, as residing within the State of New York; it contains various riders and endorsements pertaining to New York and shows it was secured through a New York broker. (Plaintiffs' Exhibit 4; hereinafter " PX-4.") From the time it was purchased in 2006 until 2015, the vehicle insured by defendant was registered and garaged in New York. (PX-24.) While the insured, Mr. Cardozo, testified he lived in Connecticut between 2003 and 2007, he maintained his driver's license in New York until 2015. Moreover, there is no evidence that defendant had any notice the insured was living in Connecticut. The policy was sold, paid for and written in New York, for an insured who was using a New York address not only on the policy but also in his communications with the defendant in 2007. (PX-6.) Taking plaintiffs' exhibits as uncontested, there is no evidence the defendant ever had notice or even an inkling that its insured was living in Connecticut.Samelko v. Kingstone Ins. Co., No. CV156051307, 2016 WL 4497683, at *3 (Conn.Super.Ct. July 19, 2016) .
More generally, assuming that the authorization to do business in Connecticut was sufficiently timely to allow it to be considered in that case (and it is timely for purposes of this case) the court observed:
Additionally, defendant has cited multiple cases for the proposition that being licensed to sell insurance in Connecticut is not a plenary grant of jurisdiction over that entity. See, e.g., WorldCare Ltd. v. World Ins. Co., 767 F.Supp.2d 341, 355 (D.Conn. 2011). Finally, by its language, § 38a-25(a)(1) is limited to proceedings " arising from or relating to any transaction having a connection with this state." Plaintiffs have failed to establish that this is the case here.Samelko v. Kingstone Ins. Co., No. CV156051307, 2016 WL 4497683, at *3 (Conn.Super.Ct. July 19, 2016), supra .
Worldcare Limited, identified in the decision, relies on the distinction between authorization of a designated recipient to accept service of process and the existence of jurisdiction that would allow such service to be deemed effectual. The Connecticut cases discussed below address the designation of an agent for service as having jurisdictional implications in the sense of scope of a longarm statute, but they also recognize the requirement of satisfaction of the constitutional principle of minimum contacts and the related principle of foreseeability of being compelled to defend an action in a particular forum.
Before moving on from the direct action decision, the court is compelled to note that this court is not treating that decision as conclusive or persuasive, although it is informative and helpful. The limited ability to rely on that decision is at least partially attributable to the modestly different legal posture, and at least partially attributable to that court's repeated references to the unsatisfactory manner in which the plaintiffs therein had presented their challenge to the motion to dismiss; it would be unfair to this plaintiff to burden him with the consequences of a presentation by other parties perceived to have been so flawed.
The decision includes the following:
A similar issue was identified and partially addressed in Wallenta v. Avis Rent a Car System, Inc., 10 Conn.App. 201, 202, 522 A.2d 820 (1987). " The plaintiff's position is, essentially, that the defendant has subjected itself for all purposes to the jurisdiction of the court by naming an agent for service of process and by operating an office in the state." (A major distinction in this case is that there is no claim that the defendant is operating an office in this state or did operate an office in this state at any relevant time.) The Wallenta court interpreted the then-existing corporate longarm statute (General Statutes § 33-411) as statutorily authorizing jurisdiction in a quasi-general sense, at least to the extent of doing business with Connecticut residents: " The allegation that the defendant was licensed to do business in this state was sufficient to show that this state had authorized the assertion of jurisdiction over the defendant, and that the defendant had consented to that assertion of jurisdiction." Id. at 208. The court went on to note that there still remained an issue as to the constitutional requirements of due process. (" The subsidiary question is whether the defendant could reasonably have anticipated a suit in Connecticut arising from the contract executed in Alabama"; id. ) The plaintiff has cited Wallenta only for the proposition that authorization to do business in Connecticut may be sufficient for statutory long-arm jurisdiction, failing to note that Wallenta left the International Shoe issues to be resolved (and the plaintiff also does not acknowledge the ongoing, active business activities in Connecticut of the defendant in Wallenta (Avis car rentals), not present here).
In light of these distinctions, it is surprising that the plaintiff claims (page 5 of #113.00) that " [t]he Wallenta case differs from the case at bar only in that it deals with a non-insurance corporation."
A similar issue with different distinctions arose and was addressed in Cogswell v. American Transit Ins. Co., 282 Conn. 505, 923 A.2d 638 (2007). Cogswell was a proceeding commenced by the Insurance Commissioner against an insurer based in New York, arising from a complaint related to adjustment of a claim by a Connecticut resident against an insured of the defendant, relating to an accident that occurred in Connecticut. As here, the insurer did not do business in Connecticut at the time of the incident and was not authorized to do business in Connecticut at the time of the incident. As here, there was evidence of a limited number of other claims adjusted in Connecticut (seemingly much larger number than reflected in the record here) and some level of correspondence relating to the subject claim.
" The mere fact that the defendant insures livery drivers in a state that borders Connecticut does not mean that it should anticipate being hauled into court in this state when it does not purposefully direct any business activity here." 282 Conn. at 531. The courts rely upon a discussion of cases from other jurisdictions in which fortuitous mailings into a state, or fortuitous occurrence of an accident in the state, were deemed insufficient contact to allow that state to be a forum for litigation. A review of those decisions is useful.
In Hunt v. Erie Insurance Group, 728 F.2d 1244 (9th Cir. 1984), the plaintiff was a Virginia resident injured in a Colorado accident who subsequently moved to California; an action was commenced to recover no-fault benefits relating to medical care that she claimed she was entitled to receive. Correspondence was sent by the insurer to the plaintiff, in California, which constituted virtually the only contact with the claimed forum state. The defendant was described as an East Coast insurer, with Indiana as the west-most identified state in which it operated. The court concluded that there were insufficient contacts with California to permit jurisdiction to be asserted in that state, over the defendant insurer, with respect to the plaintiff's claim for no-fault benefits.
In Batton v. Tennessee Farmers Mutual Insurance Co., 153 Ariz. 268, 736 P.2d 2 (1987), a Tennessee resident, insured by a company doing business in Tennessee, was injured in a motor vehicle accident in Arizona. Shortly after the accident, the plaintiff had moved from Tennessee to Florida, but nonetheless brought an action in Arizona against the insurer, claiming bad faith and other related claims with respect to a refusal to pay medical bills and the cancellation of the policy. There was some limited correspondence between the plaintiff's Arizona attorney and the defendant insurance company. Here, too, the court concluded that there were insufficient contacts with the state to permit assertion of personal jurisdiction over the defendant.
In the present case, no one has sued Batton in Arizona. Tennessee Farmers' agreement to defend and indemnify Batton in any state does not imply an agreement to allow its own insured to bring suit in any state. Tennessee Farmers could reasonably foresee that Batton might be hurt in any state and that he might have a claim arising out of such injuries, but this falls short of satisfying the purposeful availment test. The sole question here is whether Tennessee Farmers purposefully directed its activities at Arizona. On these facts, it is not possible to say that it has done so. Batton is not an Arizona resident and Tennessee Farmers has never availed itself of the opportunity to do business in Arizona. See ante 153 Ariz. at 272, 736 P.2d at 6; cf. August v. HBA Life Insurance Co., 734 F.2d 168 (4th Cir. 1984) (Arizona company sold health insurance to Arizona residents who subsequently moved to Virginia; company could be sued in Virginia because it was foreseeable that Arizona insureds might move to other states where covered occurrence might occur, and, in addition, the insureds had become Virginia residents, had paid premiums from Virginia, and the Arizona company had solicited change endorsements after the insureds moved to Virginia).Batton v. Tennessee Farmers Mut. Ins. Co., 153 Ariz. 268, 272-73, 736 P.2d 2, 6-7 (1987).
In discussing and quoting from Batton, the Cogswell court emphasized that the focus is on the conduct of the defendant, not the plaintiff:
The court held that [the defendant's] correspondence with [the plaintiff's] Arizona attorney, even if tortious or actionable as a breach of contract, [was] not a " purposeful" contact with Arizona . . . [T]he requisite minimum contacts are not established when the plaintiff's action requires the defendant to send communications into th[e] forum. The mere fact that [the defendant] responded to [the plaintiff's] Arizona lawyers, and may have committed a tort against [the plaintiff] in the process, is not evidence that [the defendant] purposefully availed itself of the privilege of conducting business in Arizona. 282 Conn. at 532.
The Cogswell court also discussed Tennessee Farmers Mutual Ins. Co. v. Harris, 833 S.W.2d 850 (Ky.Ct.App. 1992), a case in which Tennessee residents, insured by a Tennessee insurance company, were involved in an accident in Kentucky. The insurance company had no identified presence in Kentucky. The action in question was for underinsured benefits under the policy issued by the carrier to its insured. The sole identified contacts between the carrier and the state of Kentucky were that the carrier had " sent an adjuster to Kentucky to adjust the loss and gave its written consent to maintenance of the Kentucky tort actions." As with the other cases cited by the court in Cogswell, this too was deemed by the court to be insufficient to pass constitutional muster.
This court cannot help but note a pattern-all of the cases cited were first party coverage cases, in which the selection of the forum was a matter of convenience to the plaintiff. To the extent that the cases all involved contractual performance, there was no anchor in any of the jurisdictions where litigation was commenced, from the perspective of the insurer. In the case currently before the court, there is a difference-there is a forum-based anchor in Connecticut. The plaintiff had been sued in Connecticut and there was a claimed forum-based obligation to defend a Connecticut-based tort action. In the cases cited in Cogswell, it was pure chance, from the perspective of the carriers, as to where the litigation was filed (or more cynically, it may have been the happenstance of where retained counsel were practicing).
We now turn to the question of whether this exercise of jurisdiction met with the constitutional requirements of the due process clause. The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. [T]he foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being hauled into court there. (Internal quotation marks and citation, omitted.) U.S. Trust Co. v. Bohart, 197 Conn. 34, 41, 495 A.2d 1034, 1039-40 (1985).
The court further noted the practical and case-specific nature of the inquiry, citing to Kulko v. Superior Court of California In & For City & County of San Francisco, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978), wherein the U.S. Supreme Court stated:
Like any standard that requires a determination of " reasonableness, " the " minimum contacts" test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite " affiliating circumstances" are present. Hanson v. Denckla, 357 U.S. 235, 246, 78 S.Ct. 1228, 1235, 2 L.Ed.2d 1283 (1958). We recognize that this determination is one in which few answers will be written " in black and white." The greys are dominant and even among them the shades are innumerable.
The defendant, in its reply, cites and relies upon Bogen v. Bonanno, No. CV065001344S, 2006 WL 1230052 (Conn.Super.Ct. Apr. 13, 2006) . The court finds the discussion in that case to be helpful, but again it is a first party coverage scenario, thereby potentially implicating the distinction identified. It does reinforce, however, the notion that registration/authorization to do business is of essentially-negligible weight when the scope of insurance authorized does not encompass the type of coverage at issue.
From a transaction/pragmatic perspective, Connecticut is the locus of the conduct giving rise to the proceeding-a Connecticut motor vehicle accident (involving Connecticut plaintiffs and unknown to this defendant at the time of issuance of the policy, also a Connecticut defendant-driver) with a resulting Connecticut legal proceeding in which the defendant (allegedly) chose not to defend its insured. In something of an intuitive sense, Connecticut seemingly should be a permissible jurisdiction for this proceeding. Is that enough?
Seemingly not. As discussed earlier, the focus is not on the conduct of the plaintiff but that of the defendant; see, passage quoted from Cogswell, 282 Conn. 532, above. The defendant did not engage in conduct in Connecticut-indeed, the gravamen of this proceeding is that it did not engage in conduct in Connecticut (defend the underlying tort litigation).
The court finds the discussion in OMI Holdings, Inc. v. Royal Insurance Company of Canada, 149 F.3d 1086, 1095 (10th Cir. 1998), to be especially helpful in reconciling the principles involved in the non-Connecticut cases discussed above, and especially its distinction between first party and third-party litigation:
We are also troubled by the apparent assumptions in Farmers, Rossman, and Eli Lilly that by agreeing to defend its insured in any forum, an insurer foresees being sued by its own insured in any forum when a coverage dispute arises. An insurance company who issues a policy in which it agrees to defend its insured in a certain forum can undoubtedly foresee that it may have to provide a defense for its insured who is haled into court there. It does not follow, however, that by agreeing to defend in the forum, that the insurance company also by implication agrees that it will litigate disputes between it and its insured regarding the terms of an insurance contract in a foreign forum. While it is reasonably foreseeable that an insured would be involved in litigation with a third-party in another forum, it is not necessarily foreseeable that a dispute between the insured and the insurer over an insurance contract prepared, negotiated, and executed pursuant to Canadian law in Canada with a Canadian company would be litigated in a foreign forum where neither party has any contacts.
In Cogswell, our Supreme Court rejected jurisdiction based on an insurance company's handling of a claim that arose in Connecticut; the distinction here is that the plaintiff here is the company's own insured, rather than the Insurance Commissioner acting on the basis of a dissatisfied Connecticut claimant. While not all courts have recognized the distinction identified in OMI, that case only emphasizes the defendant's lack of purposeful contact with Connecticut.
Conclusion
The issue of an insurance company being amenable to suit in all 50 states based on automobile accidents, or based on a policy explicitly providing 50-state coverage, or a policy not containing any explicit exclusion from 50-state jurisdiction, is subject to varying interpretation and application.
Third, Auto Club reasonably should have foreseen being haled into court in Georgia because its policy covered the entire United States. Auto Club hence should have recognized that an accident could occur in any state and could result in litigation, and that Auto Club could be called upon to litigate and to pay in Georgia or any other state within the covered territory. As the Fourth Circuit has noted, " [i]nsurance by its nature involves the assertion of claims, and resort to litigation is often necessary." Rossman, 832 F.2d at 286 (quotation marks and citation omitted). Thus, not only was it foreseeable that Auto Club might be sued in Georgia in connection with an accident in Georgia covered by its policy, but the " expectation of being haled into court in a foreign state is an express feature of its policy." McGow v. McCurry, 412 F.3d 1207, 1215 (11th Cir. 2005).
That language, however, does not appear to be reflective of Connecticut law. If McGow were applicable in Connecticut, it would seem that Cogswell would have been decided otherwise.
Cogswell was decided 10 years ago, and the court did not adopt or seem receptive to the concept that an accident in Connecticut necessarily provided personal jurisdiction over the insurer for matters pertaining to that accident. The pragmatic approach as articulated in McGow cannot be rejected based on logic but the requirement of a focus on the conduct of the defendant, and the need for purposeful conduct in the forum state as articulated in U.S. Supreme Court precedent, require the court to grant this motion to dismiss. Foreseeability is not enough; as quoted in Cogswell (282 Conn. 505, 923 A.2d 638): " The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State . . . [i]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State . . ." (Internal quotation marks and citations, omitted.)
The plaintiff has cited U.S. Supreme Court precedent for the general principles relating to jurisdictional issues, including World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), but has failed to discuss cases applying those principles to similar or analogous situations. The attempt to emphasize the tortious quality of the conduct, as opposed to the contractual nature of the failure to abide by a contract-based duty to defend, does not change the analysis, as the cases cited and discussed above also often include a claim of tortious conduct. See, e.g., passage from Cogswell, 282 Conn. 532, discussing Batton, quoted above.
Particularly when reviewing available Connecticut decisions as identified and discussed above, the court is left with little choice but to conclude that the plaintiff has not established a constitutional basis for the court to assert personal jurisdiction over the defendant insurance company, in connection with the 2007 accident at issue.
For all of these reasons, the motion to dismiss is granted.
Plaintiff offers no authority and no argument or explanation to support this conclusory claim. Plaintiffs also argue that their evidence establishes that their causes of action arise out of a contract to be performed in this state or tortious conduct within this state. No further explanation is given as to how or why this is the case. No specifics are offered and no authority is provided. Plaintiffs leave the court to determine exactly what evidence might support this claim and what legal principles will apply to this proposition. Plaintiffs have simply abdicated any responsibility to support their conclusion. Next plaintiffs claim that defendant violated various provisions of General Statutes § 38a-271(a) covering unauthorized acts of insuring. Plaintiffs rattle off a dozen or more claims as to acts which would fit these descriptions. Again, plaintiffs have left it to the court to ferret out the evidence which would support these conclusions. The court also noted that to the extent that there had been invocation of a statute whereby the Insurance Commissioner would have been deemed the agent for service for the defendant, service had not been made on that statutorily-designated agent for service. (" Thus, neither of the two conditions for service on the Insurance Commissioner were met on the date of service; service was not made on the Insurance Commissioner (nor under the statute in question) and defendant was not yet licensed. Either one of these deficiencies seems damning.")
Wallenta also did not have the somewhat more refined issues present here-the distinction between the conduct for which there was authority to conduct business and the actual conduct at issue, and the question of whether authorization obtained long after the conduct in issue might be sufficient to support jurisdiction (whether measured by the date of accident or by the commencement and conclusion of the litigation giving rise to the current litigation).