Susan Hunter et al. v. Crystal Velez et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 122

ISSUE AND SUBMISSION

The apportionment defendant, Aku–World, Inc., d/b/a Priceless Car Rental moves this court to dismiss the apportionment complaint brought against it by the defendant/apportionment plaintiff, Safeco Insurance Company, on the ground that this court lacks personal jurisdiction because it was improperly served pursuant to Connecticut General Statutes § 52–62.

FACTS

The present action arises out of an alleged motor vehicle accident that occurred on Interstate 90 in North Oxford, Massachusetts.   On October 14, 2010, the plaintiffs, Susan Hunter, Steven Hunter and Carly Hunter, a minor, by her mother and next friend Susan Hunter, filed a six-count amended complaint against the defendants, Crystal Velez and Safeco Insurance Company of Illinois (Safeco).   In their amended complaint, the plaintiffs allege the following facts.   On August 15, 2008, Susan Hunter was injured when a vehicle operated by Velez and owned by Aku–World, Inc., doing business as Priceless Car Rental (Aku–World), struck a vehicle in which Susan Hunter was a passenger.   The collision was caused by the negligence of Velez.   At all times mentioned herein, Steven Hunter was the husband of Susan Hunter.   Carly Hunter was the daughter of Susan Hunter and witnessed the collision.

In count one, Susan Hunter alleges a claim for personal injuries against Velez.   In count two, Steven Hunter alleges a claim for loss of consortium against Velez.   In count five, Carly Hunter alleges a claim for negligent infliction of emotional distress against Velez.   In counts three, four and six, the plaintiffs further allege that Safeco has legal responsibility for their injuries pursuant to an insurance contract and in accordance with General Statutes § 38a–336.

On January 26, 2011, Safeco filed an apportionment complaint against Aku–World.¹  In its amended apportionment complaint,² Safeco alleges that “[t]he collision and any resulting injuries ․ sustained by plaintiffs were the result of the carelessness and negligence of ․ Aku–World [in that] ․ the vehicle owned by [Aku–World] and operated by Velez was not equipped with brakes adequate to control safely its movements and when said brakes were not in good and sufficient working order, in violation of [General Statutes § 14–80h].”

In the return of service attached to the original apportionment complaint, state marshal Charles J. Fisher, Jr. states that he served process on Aku–World, pursuant to General Statutes § 52–62:(1) by leaving process in the town of Wethersfield with the clerk in charge of the office of Robert M. Ward, acting commissioner of motor vehicles for the state of Connecticut and authorized agent to accept service for Aku–World;  and (2) by depositing process in the mail, postage paid and certified, return receipt requested, addressed to Aku–World at 318 West Central Street in Natick, Massachusetts.

On March 16, 2011, Aku–World filed a motion to dismiss Safeco's apportionment complaint on the ground that the court lacks personal jurisdiction over Aku–World because it was improperly served pursuant to General Statutes § 52–62.   On May 6, 2011, Safeco filed an objection to Aku–World's motion to dismiss.   The matter was heard at short calendar on May 9, 2011.

DISCUSSION

“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.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).  “[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).  “The jurisdiction that is found lacking ․ is jurisdiction over the person ․” (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.)   Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.  “When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).

In its memorandum of law in support of its motion to dismiss, Aku–World argues that § 52–62, which pertains to service upon nonresidents in an action for negligent operation of a motor vehicle, is inapplicable to cases involving accidents that occur in other states.   Aku–World contends that the accident in this case undisputedly occurred in Massachusetts.   In response, Safeco counters that equitable reasons exist to allow personal jurisdiction over Aku–World despite any claimed defects in service of process.   In particular, Safeco contends that Aku–World had notice of this meritorious cause of action and waived personal jurisdiction by virtue of its physical presence in this state.

“[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.”  (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576.   Nevertheless, “our Supreme Court has expressed a policy to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  (Internal quotation marks omitted.)  Hibner v. Bruening, 78 Conn.App. 456, 461, 828 A.2d 150 (2003).   In this regard, “service must be effectuated in a way reasonably calculated to provide actual notice.”  Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007).  “When notice is given to a defendant of the commencement of a legal action, [however] there must also be substantial compliance with the service of process statutes.”  Hibner v. Bruening, supra, 461.

General Statutes § 52–62(a) provides:  “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.”  (Emphasis added.)  General Statutes § 52–62(c) provides the manner in which process shall be served in such a civil action.³

In the present case, it is undisputed that the accident occurred in Massachusetts.   This fact is set forth on the face of the plaintiffs' amended complaint and is incorporated by reference into Safeco's amended apportionment complaint.   By its plain language, § 52–62 concerns accidents that occur “in this state.”   See General Statutes § 52–62(a);  see also Jenkins v. Wilson, Superior Court, judicial district of New Haven, Docket No. CV 05 4011429 (March 9, 2006, Silbert, J.).   Therefore, whether or not Safeco has complied with the mandates of § 52–62(c), is irrelevant.   While there may have been other statutory service provisions available to Safeco, the face of the record fails to establish the applicability of any other provisions to which Safeco has substantially complied.  “When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.”  (Internal quotation marks omitted.)   Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515.

Safeco argues, however, that regardless of whether it has complied with any applicable statutory provisions, Aku–World had notice of this meritorious cause of action and waived personal jurisdiction by virtue of its physical presence in this state.   With regard to its first argument, “[w]hen notice is given to a defendant of the commencement of a legal action, there must also be substantial compliance with the service of process statutes.”  Hibner v. Bruening, supra, 78 Conn.App. 461.   As previously stated, § 52–62 is inapplicable and the face of the record fails to establish the applicability of any other provisions to which Safeco may have substantially complied.   With regard to its second argument, Safeco has failed to submit any evidence that Aku–World had a physical presence in this state.   Even assuming that Aku–World had a physical presence in this state, Safeco fails to cite any authority for the proposition that this constitutes a waiver of the requirement for proper service of process.   To the contrary, “an action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, supra, 109 Conn.App. 338.

For the foregoing reasons, Aku–World's motion to dismiss Safeco's amended apportionment complaint is granted on the ground of lack of personal jurisdiction due to insufficient service of process.

BY THE COURT

Denise D. Markle, Judge

FOOTNOTES

FN1. Subsequently, on April 29, 2011, the plaintiffs filed an amended nine-count complaint against Velez, Safeco and Aku–World..  FN1. Subsequently, on April 29, 2011, the plaintiffs filed an amended nine-count complaint against Velez, Safeco and Aku–World.

FN2. On February 10, 2011, Safeco filed an amended apportionment complaint as of right pursuant to Practice Book § 10–59..  FN2. On February 10, 2011, Safeco filed an amended apportionment complaint as of right pursuant to Practice Book § 10–59.

FN3. In particular, § 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 and 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 ․ at his last-known address.”.  FN3. In particular, § 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 and 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 ․ at his last-known address.”

Markle, Denise D., J.