Danielle Martino v. CT (2011)

MEMORANDUM OF DECISION RE ARTICULATION

This will serve to articulate the court's denial of a motion to dismiss an apportionment complaint brought against the Evangelical Free Church of America (“Camp Spofford”).   The apportionment defendant has claimed the court lacks personal jurisdiction over the apportionment defendant, a foreign non-profit corporation.

By way of background the minor plaintiff, Danielle Martino, initiated this cause of action through her parents and next friends, Thomas and Linda Martino, against the defendants, the Black Rock Congregational Church, Fairfield, Connecticut (Black Rock) and the Town of Brattleboro.

The plaintiff alleges that on or about January 26, 2008, the defendant Black Rock sponsored a weekend trip to the apportionment defendant's camp located in Vermont.   She further alleges that while participating in a winter retreat she was injured during a snow tubing activity at the Brattleboro Living Memorial Park.

In May of 2010, the apportionment plaintiff, Black Rock, filed an apportionment complaint against Camp Spofford “for determining the liability for an accident that which occurred on January 26, 2008 at the Living Memorial Park, Brattleboro, Vermont.”   In an affidavit filed in support of Camp Spofford's motion to dismiss the interim director, Fred Rowley, claimed that Camp Spofford did not have sufficient contact with the State of Connecticut which would subject it to Connecticut's Long Arm Statute.   He testified that Camp Spofford did not solicit any business in Connecticut, nor did it conduct any marketing or advertising in the State of Connecticut other than occasional distribution of brochures and other informal informational materials to members of its affiliated churches.   He further stated that Camp Spofford did not engage in any persistent conduct or course of conduct relative to the State of Connecticut for which the plaintiff's cause of action arises.   He finally alleged that Camp Spofford did not derive substantial revenue from goods used or consumed or services rendered in the State of Connecticut.   The subsequent deposition of Mr. Rowley indicates quite the contrary.

He testified that the full name of Camp Spofford is the Camp Spofford of the Evangelical Free Church of America.   He testified that it is affiliated with the Evangelical Free Church located in Minneapolis, Minnesota.

Mr. Rowley, who is an ordained minister, testified that the camp was primarily intended to service Evangelical Free Church members and although Congregational Churches also come to the camp, the majority of the board must be Evangelical Free Members, including the chairman.

With respect to the State of Connecticut, Mr. Rowley, indicated that vast majority of Camp Spofford revenue is generated from Connecticut and Massachusetts.   Seventy five percent of the churches that participated in the winter retreat program are from out of state as well as seventy percent of the summer program.

With respect to solicitation in Connecticut, Camp Spofford maintains a list of eighteen Connecticut churches affiliated and unaffiliated with the Evangelical Free Church of America.   Eight of the Connecticut churches, including the apportionment plaintiff, utilized the camp during 2008 including the apportionment plaintiff.   All of the Connecticut churches on Camp Spofford's list have used the camp between 2005 and 2009.   Camp Spofford sends out at least three flyers per year, an annual brochure, e-mails, letters and repeated phone calls to the 18 designated Connecticut churches.   Two members of the Board of Directors are from Connecticut and Connecticut residents are hired as counselors at the camp.

The largest amount of income is generated from Massachusetts and Connecticut for its winter program.

With respect to the lease agreements, Camp Spofford does not have a boilerplate agreement but develops individual contracts for each of its participating churches.   The contracts are sent to the churches in Connecticut where they are signed in Connecticut and returned.   Each church must furnish proof of insurance to participate.

C.G.S. § 33–929(f) provides that “[E]very foreign corporation shall be subject to suit in the state, by a resident of this state or a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate foreign commerce, on any cause of action arising as follows:  (1) Out of any contract made in this state or to be performed in this state;  (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business whether the orders or offers relating thereto were accepted within or without the state ․”

In Thomason v. Chemical Bank, 234 Conn. 281, 298 (1995), the Court held that the statutory requirements for a cause of action under the statute was proven when Chemical Bank placed numerous print advertisements in newspapers and magazines that had substantial circulation in the state of Connecticut.   The advertisements specifically encouraged Connecticut residents to place a wide variety of banking business within the trustee bank.   In Frazer v. McGowan, 198 Conn. 243, 251 (1986), the Supreme Court held that Westerly Hospital took affirmative measures designed to attract Connecticut patients.   The hospital granted admitting privileges to physicians who practice in Connecticut.   Although the hospital indicated that the doctors could not solicit on behalf of the hospital, the court held that to solicit in Connecticut, a hospital need not send emissaries into the state to issue invitations to state residents.   A hospital may solicit in Connecticut by setting up an organizational network that is likely to prompt a significant number of Connecticut patients to seek treatment at that hospital.

In Krpata v. Bio–Therapeutic Computers, Inc., No. CV96 0562741, Superior court judicial district of Hartford–New Britain at Hartford (September 22, 1997, Wagner, J.T.R.), the plaintiff attended a treating booth at an exposition in New York for aesthetic facial treatment.   The defendant in that case argued that the statute did not confer jurisdiction because the action complained of did not result from any alleged in-state solicitation by the defendant.   The court found that the placing of repeated advertising of the defendant's product in a magazine sent to subscribers in Connecticut satisfied the solicitated business language of the statute.

In this particular case, the solicitation by the apportionment defendant was not an attempt to attract customers from the broad public in Connecticut by advertisements in magazines of general circulation in Connecticut as in Thomason or Krapata.   This was repeated, direct contact with 18 churches in Connecticut with whom they have had an ongoing business relationship.   The contact was through annual reports, brochures, flyers, telephone calls and e-mails.   The solicitation was intended to continue obtaining rental contracts with these specific churches which are signed in Connecticut.   Is the opinion of the court that the conduct of the apportionment defendant falls within the requirements of section 33–411(c)(2).

With respect to the requirements of due process, it is the opinion of this court that the summary in Krpata equally applies to the conduct of the apportionment defendant Spofford Camp:

In order to determine whether the requirements of due process are satisfied by the court's exercise of jurisdiction over a foreign defendant, the key inquiry is whether the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.   Thomason v. Chemical Bank, 234 Conn. 281, 287, 299 (1995);  Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 49 (1980).  “It is the totality of the defendant's conduct and connection with this state that must be considered, on a case by case basis, to determine whether the defendant could reasonably have anticipated being haled into court here.”  Frazer v. McGowan, 198 Conn. 243, 249, 502 A.2d 905 (1986).   In Bowman v. Grolsche Bierbrouwer, B.V., 474 F.Sup. 725, 732 (D.Conn.1979), the court found that a contract and advertising by the defendant constituted sufficient minimum contacts.

The defendant in the present case advertises in Derma Scope Magazine which is mailed into Connecticut and to Connecticut subscribers.   The plaintiff received in the mail the advertising for a trade show in which the defendant's products were featured and subsequently received copies of Derma Scope Magazine featuring the defendant's advertisements.   When a foreign corporation places advertisements in a newspaper whose circulation includes Connecticut, that is sufficient to invoke § 33–411(c)(2).  Hagar v. Zaidman, 797 F.Sup. 132, 136 (D.Conn.1992).

According to Plaintiff's affidavit the advertisements and the demonstration of the defendant's machine at the time the plaintiff suffered injury were calculated to encourage the purchase of the machine for delivery and use in Connecticut where the defendant specifically promised to train and provide all the necessary support service on site.   The affidavit further claims that the defendant already conducts business in Connecticut as evidenced by the fact that the defendant's machine is in use in at least one other Connecticut facility located in Fairfield County.   The plaintiff has demonstrated sufficient minimum contacts by the defendant with this state so that the exercise of jurisdiction by the court does not offend due process, and it was reasonably foreseeable that the defendant, who conducts business and advertises its products in Connecticut would be haled into court in this state to defend against an action similar to the one instituted by the plaintiff.

Supra, 8637.

It is the opinion of this court that the apportionment defendant's continuous conduct within this state was such that they should have reasonably anticipated being “haled into court” and that the exercise of jurisdiction by a Connecticut court in this matter does not offend due process.

For the aforementioned reasons the motion to dismiss was denied.

Gilardi, J.T.R.

Gilardi, Richard P., J.T.R.