Opinion
HHDCV186092251S
04-05-2019
SYED SONS II, INC. v. SCOTTSDALE INSURANCE COMPANY et al.
UNPUBLISHED OPINION
OPINION
PECK, JTR
This lawsuit arises out of a fire at a commercial property on December 30, 2018, owned by the plaintiff and insured by the defendants, Scottsdale Insurance Company, a commercial general liability insurer, and Ariston Insurance Company, an insurance brokerage. Counts one, two and three allege breach of contract, breach of the covenant of good faith and fair dealing, and violation of the Connecticut Unfair Trade Practices Act, General Statutes 42-110a et seq. respectively, against Scottsdale, and counts four, five and six allege professional negligence, breach of fiduciary duty and breach of contract, respectively, against Ariston.
In a two-count apportionment complaint, the defendant/apportionment plaintiff, Ariston Insurance, Inc. (Ariston), alleges that the apportionment defendants, Connecticut Underwriters, Inc. (CU), and CRC Insurance Services, Inc. (CRC), are liable for a proportionate share of any damages awarded against Ariston, pursuant to the provisions of General Statutes § 52-102b and § 52-572h. On December 20, 2018, the apportionment defendants filed a motion to strike the apportionment complaint. This court heard oral argument on February 4, 2019.
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. 117. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580.
"[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time ... Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009). "Any party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised ... Because subject matter jurisdiction cannot be conferred by waiver or consent ... the court must address the question, suo motu if necessary, even in the absence of a motion." (Citations omitted.) Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014).
In support of their motion to strike, the apportionment defendants argue that pursuant to § § 52-102b, and 52-572h, apportionment is only available in cases resulting from personal injury, wrongful death, or damage to property, and not claims of professional negligence or malpractice. In opposition, Ariston argues that because the plaintiff’s underlying claims arise out of physical damage to property, Ariston’s apportionment claim falls within § 52-572h. For the reasons stated herein, Ariston’s argument simply misses the mark.
General Statutes § 52-102b, in pertinent part provides: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff’s damages ..." (Emphasis added.)
General Statutes § 52-572h provides in pertinent part that "in causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property ." (Emphasis added.) In Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 657 A.2d 212 (1995), the Supreme Court held that the phrase "damage to property" in § 52-572h was intended by the legislature "to encompass only its usual and traditional meaning in the law of negligence actions, namely damage to or the loss of use of tangible property, as opposed to damages for personal injury." In so, doing the court specifically concluded that "damage to property, as used in § 52-572h, does not include purely commercial losses unaccompanied by damages to or loss of the use of some tangible property." (Emphasis added; internal quotation marks omitted.) Id., 584. Subsequently, in the case of Carpenter v. Law Offices of Dressler & Assocs., LLC, 85 Conn.App. 655, 858 A.2d 820 (2004), a case involving both an original claim of legal malpractice and an apportionment claim of legal malpractice wherein the plaintiff amended her complaint to include direct claims against the apportionment defendants, the Appellate Court held that while the trial court had subject matter jurisdiction of the plaintiff’s direct claims of legal malpractice, "[t]he court had no power to adjudicate the apportionment complaint based on a legal malpractice action." Id., 660. By the same token, a professional negligence claim against an insurance broker such as Ariston, seeking damages for a purely economic commercial loss, is also not subject to apportionment. Accordingly, based on Carpenter v. Law Offices of Dressler & Assocs., LLC, not only must the apportionment defendants’ motion to strike Ariston’s apportionment complaint be granted, it is hereby dismissed for lack of subject matter jurisdiction.