Opinion
No. CV07-5006512S
July 16, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
FACTS
On November 2, 2007, the plaintiffs, Pools By Design, Inc., and its principal and president, Daniel Civitello, filed a complaint against the defendants, Nationwide Mutual Insurance Company ("Nationwide"), and its employee, licensed insurance agent Bradley Dutcher, for negligence, breach of fiduciary duty, and breach of contract ("present action"). This claim was initiated in response to another pending claim filed by Jeffrey Foss, an independent contractor who alleges that he was negligently injured by the plaintiffs while he was contracted to perform work for the plaintiffs.
On August 22, 2007, the defendants filed a complaint seeking declaratory judgment against the plaintiffs ("original action"). As the commercial general liability and insurance provider, the defendants sought a declaratory judgment to determine if, under its policy, the company was required to indemnify and defend the plaintiffs in the negligence suit filed by Foss. On October 19, 2007, the defendants filed a motion to strike all of the special defenses and counterclaims raised by the plaintiffs, which was denied by the court on January 8, 2008.
The unpublished Superior Court case is Nationwide Mutual Ins. Co. v. Pools By Design, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5005600 (January 8, 2008, Roche, J.).
On February 7, 2008, the defendants filed a motion to dismiss and attached a memorandum in support of the motion, seeking to dismiss based on the prior pending action doctrine. After the plaintiffs' request for an extension of time to respond to the defendants' motion was granted by the clerk on February 21, 2008, the plaintiffs filed an opposition to the motion on March 12, 2008, and attached a memorandum in opposition of the motion on the grounds that defendant Dutcher was not a party in any prior action. A motion to implead Dutcher as a party defendant is pending in a related declaratory judgment action. Furthermore, the plaintiffs argue that they were forced to file the present action to protect themselves from a potential statutory of limitations defense.
DISCUSSION
"As a preliminary matter, we set forth the standard of review. 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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "When a . . . court decides a jurisdictional question raised by a . . . 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "The prior pending action doctrine is properly raised via a motion to dismiss." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). Our Supreme Court has held that although "the prior pending action rule does not truly implicate the subject matter jurisdiction of the court . . . the motion to dismiss [is] the proper device by which to request that the trial court dismiss a second case that raises issues currently pending before the court." (Citations omitted.) Halpern v. Board of Education, 196 Conn. 647, 652 n. 4, 495 A.2d 264 (1985).
In supporting the motion to dismiss the present action, the defendants argue that the present action is virtually identical to the counterclaims in the original action, and, thus, the present action is prohibited by the prior pending action doctrine. The defendants assert that the present action and the original action arise out of same prior third-party liability action initiated by the independent contractor Foss against the plaintiffs. Because the actions are virtually identical, the defendants argue that the motion to dismiss be granted based on the prior pending action doctrine so to prevent oppressive and vexatious litigation against the defendants.
Responding in opposition to the motion, the plaintiffs argue that the present action should not be dismissed because the present action and the original action are not virtually alike, and, hence, the prior pending action doctrine does not apply. The plaintiffs oppose the motion on the premise that Dutcher, an agent and employee of Nationwide, was not a party in any prior pending actions between the parties including the original action. A motion to implead Dutcher as a party defendant is pending in a related declaratory judgment but has not been granted or denied. In addition, the plaintiffs oppose the motion because the motion to implead is pending, and since no definitive time is set for the issuance of that decision, the plaintiffs were forced to file this action to protect themselves from a potential statutory of limitations defense.
"Under the prior pendency doctrine, [t]he 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." (Emphasis added; internal quotation marks omitted.) Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 804 n. 6, 945 A.2d 955 (2008). "Connecticut has long recognized that two suits shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights, or to both, when such determination can be had as effectually and properly in one suit." (Internal quotation marks omitted.) BCBS Goshen Realty, Inc. v. Planning Zoning Commission, 22 Conn.App. 407, 408, 577 A.2d 1101 (1990). Therefore, if "the present case and the prior pending action both (1) arise from the same factual background, (2) include the same parties and (3) seek same goals or objectives," a motion to dismiss premised on the prior pending action doctrine may properly be granted by the court. See Modzelewski v. Williams Ravis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074 (2001), cert. denied, 258 Conn. 948, 788 A.2d 96 (2001).
After conducting a review of the arguments, along with relevant case and rules of law, the court finds that the present action and the original action are virtually alike and the prior pending action doctrine is applicable. "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 1224 (1988). Construing the present complaint in the light most favorable to the pleader, for the purposes of applying the prior pending action doctrine, the plaintiffs has not alleged any facts demonstrating that the express inclusion of Dutcher as a party defendant prevents this court from dismissing the present action. The complaint fails to allege facts that demonstrate that Dutcher was acting outside of the scope of employment when he made the alleged representations to the plaintiffs, which is necessary because "[f]or the purpose of applying the prior pending action doctrine . . . the court finds that when a party is seeking the same relief in multiple pending actions that arise from the same set of underlying facts, a corporate defendant and its agent acting within the scope of his or her employment should be regarded as the same party." (Emphasis added.) Saracino v. Hartford Financial Services Group, Inc., 50 Conn.Sup. 503, 946 A.2d 954 [ 42 Conn. L. Rptr. 796] (2007), aff'd, 107 Conn.App. 410, 945 A.2d 527 (2008). The "superficial difference" of Nationwide's employee agent, Dutcher, not being named as a actual party defendant in the counterclaims does not prevent the court from applying the prior pending action doctrine in the absence of "strict identity of the parties" or "complete identity" of the parties. (Internal quotation marks omitted.) Saracino v. Hartford Financial Services Group, Inc., supra, 50 Conn.Sup. 503. Moreover, in the pleadings for both the present action and original action, the plaintiffs state numerous times that Dutcher is an "agent" or "employee" of Nationwide who allegedly made misrepresentations to the plaintiffs while in his employment capacity. It is clear that Nationwide is the real party of interest in these actions.
In 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. 653. Examining the prayer for relief in the complaint of the present action and the prayer for relief in the counterclaim of the original action, it is evident that the original action seeks prayer for relief for two declaratory judgments, one for denial of judgment of non-liability for indemnity, the second holding the defendants liable for their defense and any damages resulting from the Foss third-party action, that the present action does not seek. Both actions seek compensatory and punitive damages, costs and attorneys fees, and other relief demanded by law and equity in their respective prayers for relief. Since the present action does not assert any additional prayers for relief that cannot be satisfied by a ruling in the original action, the same underlying rights that are asserted in the present action will be adjudicated in the prior pending action, and the court holds that the two actions are seeking to achieve the same goals, objective, or ends.
Therefore, given the virtually identical factual background, the court finds that both actions seek to adjudicate the same underlying rights between the plaintiffs and Nationwide, the real party in interest.
CONCLUSION
For the foregoing reasons, the court holds that the prior pending action doctrine bars the present action, and, thus, the motion to dismiss is granted.