Rose Benard–Kirk v. Michael Loiacondo, D.O. et al. (2011)

MEMORANDUM OF DECISION MOTION TO DISMISS # 104

FACTS

The present action arises out of alleged medical negligence claiming injury in connection with a magnetic resonance imaging (MRI) study.   On November 17, 2010, the plaintiff, Rose Benard–Kirk, filed a six-count complaint against the four defendants, Michael Loiacono, D.O., New Britain Anesthesia, P.C., Central Connecticut Health Alliance, Inc. (CCHA), and New Britain MRI Limited Partnership.   In her complaint, the plaintiff alleges the defendant Loiacono was a physician providing medical care, diagnosis and treatment specializing in the area of anesthesiology.   On October 27, 2008, the plaintiff visited Loiacono for the administration of anesthesia while she was undergoing an MRI study being conducted by New Britain MRI at CCHA's hospital and while under the effects of anesthesia she suffered injuries.   In count one, the plaintiff alleges that her injuries were caused by the negligence of Loiacono.   In count two, the plaintiff alleges a theory of recovery against Loiacono under the doctrine of res ipsa loquitur.

In his return of service the state marshal attests that on October 28, 2010 he served the defendant Loiacono by leaving process with and in the hands of Cathy Bartell, the practice administrator of New Britain Anesthesia, “who is authorized to accept service for [Loiacono], at 100 Great Meadow Road, Suite 208” in Wethersfield.   On December 16, 2010, Loiacono filed a motion to dismiss on the grounds that:  (1) the court lacks personal jurisdiction over him because he was not served in accordance with General Statutes § 52–57;  and (2) the written opinion letter submitted with the complaint is not sufficiently detailed in accordance with General Statutes § 52–190a.   The plaintiff filed an objection thereto claiming the practice administrator represented to the marshal that she was authorized to accept service on behalf of Loiacono.   An evidentiary hearing on the issue was held on May 23, 2011 wherein the court heard testimony from both the state marshal and from the practice administrator.

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).

“[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ․ An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.”  (Citations omitted;  internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 652–54, 974 A.2d 669 (2009).  “As a general matter, the burden is placed on the defendant to disprove personal jurisdiction.   The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return.   When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction.   When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).

In support of his motion to dismiss, Loiacono argues that he was not served in accordance with General Statutes § 52–57(a) because he was not served in hand or at his usual place of abode.   Further, Loiacono contends that the practice administrator for New Britain Anesthesia, was served with only one copy of the writ, summons and complaint for both New Britain Anesthesia and himself.   In this regard, Loiacono argues that the service of only one copy is evidence that it was directed to New Britain Anesthesia only.   In addition he argues that even if a copy was directed to himself, serving process on a person other than a physician at an office where the physician practices is not proper or sufficient to establish jurisdiction over the physician.   Loiacono further argues that the practice administrator was never authorized to accept service on his behalf.

The plaintiff counters that service of process upon Loiacono is sufficient because service upon Bartell as an agent is sufficient to confer personal jurisdiction in instances where the defendant receives actual notice.   In particular, the plaintiff argues that, while Loiacono contested Bartell's authority to accept service on Loiacono's behalf, such denials are insufficient to overcome the presumption of truth stated in the officer's return, which indicates that Bartell had authority to accept service on behalf of Loiacono.   Finally, the plaintiff argues that, even if Bartell did not have actual authority, she was the apparent agent of Loiacono with apparent authority to accept service on his behalf because she worked at the front desk of his principal place of business and stated that she was authorized to accept service on his behalf.   The plaintiff argues, therefore, that it would have been reasonable for the marshal to assume that the practice administrator was Loiacono's agent and that she was authorized to accept service on his behalf.

In his reply, Loiacono further contends that the practice administrator was not authorized to accept service on his behalf nor did she in fact tell the marshal that she had any authority to accept service on Loiacono's behalf.   Further, Loiacono argues that there is no authority for the proposition that an apparent agent may be served on behalf of an individual defendant.

The Supreme Court has stated that “[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.   Service of process over individual defendants in a civil action is governed by § 52–57(a), which provides:  “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”   The Appellate Court has stated that “[t]he clear impact of § 52–57(a) is that one of its two alternatives, personal or abode service, must be followed ․” Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003).   Furthermore, “[w]hen a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate.”  Nelson v. Stop & Shop Cos., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991).

Nevertheless, the Supreme Court has stated that the “chief purpose [of § 52–57] is to ensure actual notice to the defendant that the action is pending.”  (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576.   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, 78 Conn.App. 461.

There is no specific appellate authority as to whether service on the practice administrator of a medical group is sufficient to constitute service on a defendant member of that medical group.   A number of Superior Court decisions have considered similar factual scenarios and determined that such service did not comport with statutory requirements.   See Mitchell v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 10 6015881 (May 13, 2011, B.Fischer, J.) [51 Conn. L. Rptr. 896] (service upon vice president and general counsel for hospital where defendant worked not sufficient);  Dorry v. New Milford Hospital, Superior Court, judicial district of Waterbury, Docket No. X10 CV 09 6004823 (April 29, 2011, Dubay, J.) (service upon risk manager, practice administrator and office managers where defendants worked not sufficient);  and Drwiega v. Aferzon, Superior Court, judicial district of New Britain, Docket No. CV 03 0521686 (December 1, 2003, Robinson, J.) (service upon office manager of doctor's office not sufficient).   At least one Superior Court decision has determined that service was sufficient when “the marshal went to the doctor's office and gave appropriate process to the person in charge who told him that she was authorized to accept service.”   See Washington v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV 03 0824647 (September 9, 2003, Booth, J.) (35 Conn. L. Rptr. 442, 443).   In Washington, however, “[n]either the office manager nor the doctor [had] denied that the statement was made or that the authority existed.”  Id.

In the present case, Marshal Zaniewski stated in his return that he served process on Loiacono by leaving process with Cathy Bartell, practice administrator of New Britain Anesthesia, “who is authorized to accept service for [Loiacono].”   There is no dispute that such service was not in the hands of Loiacono or at his usual place of abode.  “When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction.   When jurisdiction is based on constructive service, [however] jurisdiction cannot arise solely from the acts recited in the return.”   (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515.¹

After having heard testimony from both marshal Zaniewski and Cathy Bartell this court finds the following facts.   The marshal's service was not made in hand or at the defendant Loiacono's abode.   At the time of service the marshal provided only one copy of the writ, summons and complaint to Cathy Bartell, who credibly testified that she accepted the copy on behalf of the defendant New Britain Anesthesia and was not authorized to accept service on behalf of the defendant Loiacono.   That after receiving the summons and complaint she made a copy of the documents and sent them over to the hospital where she knew Loiacono was located.   From these facts it is clear that process of service as to the defendant Loiacono did not comply with the requirements of § 52–57.   As a result, this court lacks jurisdiction over the defendant Lociano.   As a result of this finding, the court need not address Loiacono's second ground for his motion to dismiss under § 52–190a.

CONCLUSION

For the foregoing reasons, Loiacono's motion to dismiss is granted.

BY THE COURT

Denise D. Markle, Judge

FOOTNOTES

FN1. The plaintiff attempts to place the burden on Loiacono but, as previously stated, there is no dispute that personal or abode service was not effected, therefore, it is the plaintiff's burden to prove constructive service..  FN1. The plaintiff attempts to place the burden on Loiacono but, as previously stated, there is no dispute that personal or abode service was not effected, therefore, it is the plaintiff's burden to prove constructive service.

Markle, Denise D., J.