Cameron Giordano v. Jessica Laskow et al. (2011)

MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (# 102)

FACTS AND PROCEDURAL HISTORY

This case arises out of a two-car accident which occurred on August 31, 2008, in Tolland Connecticut, when a vehicle operated by the defendant, Jessica Laskow collided with a vehicle operated by the plaintiff, Cameron Giordano.   The plaintiff originally brought suit against Laskow and Tina Fields, the owner of the vehicle operated by Laskow.   The case was dismissed by the Court, Lager, J., on January 3, 2011, for lack of personal jurisdiction and insufficient service of process.   See Giordano v. Laskow, Superior Court, judicial district of New Haven, Docket No. CV 10–6013745.   The plaintiff thereafter brought the present action against the defendants Laskow and Fields pursuant to the accidental failure of suit statute, § 52–592.

On January 31, 2011, the plaintiff, Cameron Giordano, filed a three-count complaint against the defendants, Jessica Laskow and Tina Fields.   In count three, which is the only count at issue, the plaintiff alleges the following relevant facts.¹  On August 31, 2008, the defendant tailgated the plaintiff at a high rate of speed and forcibly rear-ended his vehicle in Tolland, Connecticut.   At the time of the collision, both parties were Connecticut residents.   Due to the defendant's deliberate or reckless conduct, the plaintiff suffered injuries, incurred medical expenses, and requires future medical care.   As the plaintiff's claim sounds in recklessness, pursuant to General Statutes §§ 14–218, 14–222, and 14–240a, he is entitled to double or treble damages as provided for in General Statutes § 14–295.²  In her affidavit attached to the complaint, the defendant states that on June 26, 2009, she moved from Connecticut to South Carolina.³  In the return of service, state marshal Edward Jurgelas explained that he took the following action to serve process on the nonresident defendant.   On January 26, 2011, he left an attested copy of the process with the office of the commissioner of motor vehicles pursuant to General Statutes § 52–62 ⁴ and sent the defendant an attested copy of the process via certified mail, return receipt requested, at 2206 Old Jay Lane, Mount Pleasant, SC, 29466–8065.   On February 4, 2011, Jurgelas stated in a supplemental return that the defendant acknowledged that she received an attested copy of the process on January 29, 2011, when she signed the return receipt.

On February 25, 2011, the defendant filed a motion to dismiss count three of the plaintiff's complaint on the grounds of a lack of jurisdiction over the person and insufficiency of service of process.   The motion was accompanied by a memorandum of law.   On May 5, 2011, the plaintiff filed an objection and memorandum of law in opposition to the defendant's motion.   The defendant's reply was filed on May 19, 2011.   Oral argument on the motion was heard at short calendar on August 8, 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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “The grounds which may be asserted in [a motion to dismiss include] ․ lack of jurisdiction over the person ․ and ․ insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143 (now § 10–31).

The defendant argues that because count three of the plaintiff's complaint alleges a cause of action for deliberate or reckless conduct pursuant to § 14–295, it does not sound in negligence.   Accordingly, the defendant argues, because the state marshal made service of the complaint pursuant to § 52–62, which is limited to claims of negligence and does not authorize service for claims of deliberate or reckless conduct, the court cannot exercise personal jurisdiction over her with respect to count three.

In response, the plaintiff argues it would be anomalous for the legislature to protect Connecticut drivers against negligent but not reckless nonresident drivers.   Accordingly, he asserts that while there is no statute on point, if a Connecticut citizen cannot bring a recklessness claim against a nonresident defendant, then the state's roads are havens for unsafe nonresident drivers.   In the alternative, the plaintiff argues that, pursuant to General Statutes § 52–57a,⁵ proper service was effectuated on the defendant in the same manner as authorized under General Statutes §§ 52–63(b).⁶  In this regard, the plaintiff contends that although the state marshal made specific reference to § 52–62, it is the actual method that governs whether the service was proper.   Therefore, the plaintiff argues that since the defendant had confirmed in her affidavit that she was no longer living in Connecticut, proper service was effectuated through service on the commissioner of motor vehicles and by the marshal sending a copy of the writ, summons and complaint to the defendant's last known confirmed address in South Carolina.⁷  Lastly, the plaintiff asserts that his recklessness claim under § 14–295 is ancillary to his negligence claim in count one and therefore personal jurisdiction may be conferred via § 52–62 and § 52–63.

The defendant argues in reply that the construction of § 52–62 is governed by General Statutes § 1–1(a).⁸  Furthermore, the defendant argues that, since § 52–62 is in derogation of the common law, the statute must be strictly construed.   Consequently, she argues that any expansion of § 52–62 to expressly include recklessness claims within its ambit is the prerogative of the legislature and not the court.   The defendant further argues that the plaintiff's contention that service on her was proper under §§ 52–63(b) and 52–57a is meritless for two reasons:  first, reading § 52–63 in context shows that it only provides jurisdiction for negligence claims;  second, under General Statutes § 52–57, the two methods for in personam service are in hand and abode service and she was not served by either one pursuant to § 52–57a.   Furthermore, the defendant asserts that mere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant.   Lastly, the defendant contends that because recklessness and negligence are distinct causes of action, the plaintiff's argument that the plaintiff's recklessness claim is derivative of the negligence claim must fail.

It is well settled that “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the statutory language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)  Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 443, 994 A.2d 1270 (2010).

Additionally, “[t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have [on] any one of them.”  (Emphasis in original;  internal quotation marks omitted.)   Stuart v. Stuart, 297 Conn. 26, 37, 996 A.2d 259 (2010).   Consequently, “[t]he rule of construction that words in a statute must be construed according to their plain and ordinary meaning [is informed by] the doctrine of [in pari ] materia, under which statutes relating to the same subject matter may be looked to for guidance in reaching an understanding of the meaning of a statutory term ․ If a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to bizarre results destructive of that purpose, the former should prevail.”  (Emphasis in original;  internal quotation marks omitted.)  State v. Pommer, 110 Conn.App. 608, 616–17, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008).

In the present case, when read in context, § 52–62 is susceptible to more than one reasonable interpretation.⁹  On the one hand, the statute can be understood as providing Connecticut citizens with the means to hale into court nonresident drivers who commit both negligent and reckless acts on the road.   On the other hand, the statute can be read as only reaching nonresident drivers who commit negligent but not reckless acts of unsafe driving.   The defendant argues for the latter construction, but that leads to an absurd result because negligent nonresident drivers may be haled into court while the more dangerous reckless drivers cannot be reached for want of in personam jurisdiction.

Reading § 52–62 in pari materia with Connecticut's longarm statute codified at General Statutes § 52–59b ¹⁰ lends support to the conclusion that the legislature intended a broad interpretation of § 52–62 to include jurisdiction over an allegedly reckless nonresident driver.   As § 52–59b(a)(2) provides the court with broad authority for personal jurisdiction over a nonresident individual who commits a tortious act within the state, it would be anomalous if the legislature intended a narrow interpretation of the word “negligence” in § 52–62(a) that would preclude the court's jurisdiction over allegedly reckless nonresident drivers.

Significantly, too, under § 52–62(a), any nonresident who operates a motor vehicle in this state is deemed to have appointed the commissioner of motor vehicles as his or her attorney and “to have agreed that any process in any civil action brought against [the defendant] on account of any claim for damages resulting from the alleged negligence of the nonresident ․ 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(a).   Indeed, nowhere in § 52–62 is there language that precludes the bringing of additional claims under theories of liability other than negligence in the same civil action.   The plaintiff's complaint includes a claim sounding in negligence and therefore the text of § 52–62 authorizes the mode of service utilized in the present case.   As § 52–62 does not preclude a theory of recklessness from being included in the plaintiff's action, served pursuant to § 52–62, the court therefore concludes that it has personal jurisdiction over the defendant.¹¹

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to dismiss.

Wilson, J.

FOOTNOTES

FN1. As count three pertains solely to Jessica Laskow, she will be referred to as “the defendant.”   In count one, the plaintiff alleges a claim of negligence against the defendant.   In count two, the plaintiff alleges a claim of respondeat superior against the defendant's mother, Tina Fields..  FN1. As count three pertains solely to Jessica Laskow, she will be referred to as “the defendant.”   In count one, the plaintiff alleges a claim of negligence against the defendant.   In count two, the plaintiff alleges a claim of respondeat superior against the defendant's mother, Tina Fields.

FN2. Section 14–295 provides in relevant part:  “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14–218a ․ 14–222 ․ or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property ․”.  FN2. Section 14–295 provides in relevant part:  “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14–218a ․ 14–222 ․ or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property ․”

FN3. “[I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts ․” (Citations omitted;  emphasis in original.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009)..  FN3. “[I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts ․” (Citations omitted;  emphasis in original.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

FN4. Section 52–62 provides in relevant part:  “(a) 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.․“(c) 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, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, 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 or representative at his last-known address ․“(d) For the purposes of this section, the term ‘nonresident’ includes a person who is a resident of this state at the time a cause of action arises and who subsequently moves to another jurisdiction.”.  FN4. Section 52–62 provides in relevant part:  “(a) 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.․“(c) 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, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, 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 or representative at his last-known address ․“(d) For the purposes of this section, the term ‘nonresident’ includes a person who is a resident of this state at the time a cause of action arises and who subsequently moves to another jurisdiction.”

FN5. Section 52–57a provides:  “A person domiciled in or subject to the jurisdiction of the courts in this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.”.  FN5. Section 52–57a provides:  “A person domiciled in or subject to the jurisdiction of the courts in this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.”

FN6. Section 52–63(b) provides:  “Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another.”.  FN6. Section 52–63(b) provides:  “Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another.”

FN7. The plaintiff relies on Hernandez v. Pace, Superior Court, judicial district of Fairfield, Docket No. CV 06 5002728 (October 20, 2006, Rodriguez, J.) [42 Conn. L. Rptr. 217], and Barret v. Tirella, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 05 4003673 (November 10, 2005, Sequino, J.), for the proposition that service on a nonresident defendant is proper under § 52–63 because that statute applies regardless of whether the defendant is a Connecticut resident.   The defendant contends that the issue of the court's jurisdiction regarding claims of recklessness was not raised in Hernandez v. Pace, while no claims of recklessness were pled in Barret v. Tirella..  FN7. The plaintiff relies on Hernandez v. Pace, Superior Court, judicial district of Fairfield, Docket No. CV 06 5002728 (October 20, 2006, Rodriguez, J.) [42 Conn. L. Rptr. 217], and Barret v. Tirella, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 05 4003673 (November 10, 2005, Sequino, J.), for the proposition that service on a nonresident defendant is proper under § 52–63 because that statute applies regardless of whether the defendant is a Connecticut resident.   The defendant contends that the issue of the court's jurisdiction regarding claims of recklessness was not raised in Hernandez v. Pace, while no claims of recklessness were pled in Barret v. Tirella.

FN8. Section 1–1(a) provides in relevant part that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language ․.  FN8. Section 1–1(a) provides in relevant part that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language ․

FN9. The legislative history of § 52–62 was consulted but failed to illuminate the issue at bar..  FN9. The legislative history of § 52–62 was consulted but failed to illuminate the issue at bar.

FN10. Section 52–59b(a)(2) enumerates the circumstances when the court has personal jurisdiction over a nonresident defendant and provides in relevant part:  “a court may exercise personal jurisdiction over any nonresident individual ․ who in person ․ commits a tortious act within the state ․.  FN10. Section 52–59b(a)(2) enumerates the circumstances when the court has personal jurisdiction over a nonresident defendant and provides in relevant part:  “a court may exercise personal jurisdiction over any nonresident individual ․ who in person ․ commits a tortious act within the state ․

FN11. Because the court has jurisdiction over the defendant pursuant to § 52–62, the court need not address the defendant's contention that she was not properly served under §§ 52–63(b) and 52–57a..  FN11. Because the court has jurisdiction over the defendant pursuant to § 52–62, the court need not address the defendant's contention that she was not properly served under §§ 52–63(b) and 52–57a.

Wilson, Robin L., J.