Scott Coleman v. Charles McCarthy (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 118)

FACTS

On February 7, 2011, the plaintiff, Scott Coleman, filed a three-count complaint, the first of which is directed against the defendant, Charles McCarthy, sounding in negligence arising from an alleged motor vehicle accident in North Stonington, Connecticut.   On May 19, 2011, the defendant McCarthy filed a timely motion to dismiss this action on the ground of insufficiency of service of process.   His motion is accompanied by a memorandum of law.   On May 24, 2011, the plaintiff filed an objection to the motion to dismiss and a memorandum in support of his objection.

DISCUSSION

“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), citing Practice Book § 10–31.  “[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).  “Facts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Emphasis in original;  internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).

In the present case, the defendant argues that the plaintiff did not properly comply with General Statutes § 52–62, which governs service upon a nonresident in an action for negligent operation of a motor vehicle.   Without proper service, the court lacks personal jurisdiction over the defendant.   In response, the plaintiff contends that the defendant is reading § 52–62 too narrowly and argues that he has reasonably complied with the statute's requirements given that the defendant has been fully apprised of the pending litigation.

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.”

Subsection (c) of § 52–62 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.”

“When 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.”  (Citations omitted;  internal quotation marks omitted.)   Commissioner of Transportation v. Khan, 262 Conn. 257, 272, 811 A.2d 693 (2003).   The Supreme Court's interpretation of what is now § 52–62 is instructive:  “The requirement that the copy be mailed to the defendant at his ‘last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it.   Unless the defendant has departed for parts unknown, it means his actual address;  if he has disappeared it means his last address so far as it is reasonably possible to ascertain it.   This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute.”  (Emphasis added.)  Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255 (1931).

Here, the summons attached to the complaint identifies an address of 52 Governor Avenue in Westerly, Rhode Island as the address for the defendant McCarthy.   The marshal's return of service indicates that McCarthy was served by leaving a true and attested copy of the writ, summons and complaint at the office of the commissioner of motor vehicles and by mailing a true and attested copy via certified mail to the defendant at the Westerly, Rhode Island address.   The marshal's supplemental return indicates that the certified mailing was returned unclaimed and unopened.

The defendant argues that he does not live at 52 Governor Avenue in Westerly, Rhode Island and that it is not his “last known address.”   He has provided a copy of the accident information summary from the Connecticut Department of Public Safety that lists the names and addresses of each person involved in the accident that gave rise to this action.   McCarthy is listed as having an address in the town of Whitman, Massachusetts, along with a Massachusetts driver's license and Massachusetts license plate.   McCarthy asserts that this form was distributed to each driver at the scene of the accident.

The plaintiff argues that he reasonably relied on the Connecticut Uniform Police Accident Report, which appears to list the Westerly, Rhode Island address for McCarthy.   At the bottom of the report, however, under the heading “Name and Address of Each Involved Person,” is the name Michelle McCarthy with the same Whitman, Massachusetts address listed for the defendant McCarthy in the accident information summary.   Also, the address listed in the police report for another defendant in this action, Richard MacCall, is the same Governor Avenue address in Westerly, Rhode Island listed for McCarthy.

Thus, there was conflicting information concerning McCarthy's address in the accident summary and the police accident report.   While one entry in the police report listed McCarthy as residing on Governors Avenue in Westerly, Rhode Island, there is a separate Massachusetts address in another part of the report that is identical to the address listed for McCarthy in the accident summary that is inconsistent with the police report.   Due diligence would have revealed that multiple addresses were listed for this defendant and that two of the defendants, who do not appear to be related in any way, had the same address listed in the police report.   Therefore, the plaintiff had notice of this inconsistency and was not careful enough to serve the defendant McCarthy at his correct address.   Accordingly, the court finds that the plaintiff did not comply with § 52–62, and thus McCarthy has not been properly served.   Therefore, this court lacks personal jurisdiction over this particular defendant.

CONCLUSION

Based on the foregoing, the court hereby grants the defendant Charles McCarthy's motion to dismiss count one of the complaint.

Cosgrove, J.

Cosgrove, Emmet L., J.