Jennifer Aldrich v. David Smith (2013)

MEMORANDUM OF DECISION

The defendant has filed a motion to dismiss (# 103) the plaintiff's complaint on the ground that the court lacks personal jurisdiction over the defendant due to insufficient service of process.   The plaintiff has filed an objection (# 108).   The matter was argued at the short calendar on August 19, 2013.   For the reasons stated, the motion to dismiss will be denied.

FACTS

This action arises out of a motor vehicle accident that occurred while the defendant David Smith, was operating a vehicle in which the plaintiff, Jennifer Aldrich, was a passenger.   On May 28, 2013, the plaintiff filed a single-count complaint against the defendant in which she alleges the following facts.   On August 27, 2011, the defendant was operating a motor vehicle in Sandisfield, Massachusetts and the plaintiff was a passenger in the vehicle.   On that date, the defendant lost control of the vehicle and collided with a utility pole.   As a result of the defendant's negligence, the plaintiff suffered various severe physical injuries.

The marshal's return attests that the marshal attempted to effect service as follows:  On May 17, 2013, she left the process “[a]t a possible place of abode of David Smith at 13 Meeting House Road, Apt. 11, Barkhamsted, CT (Could not confirm residency)”;  on May 22, 2013, she made “a diligent search throughout [her] precincts for the within named defendant, David Smith and could not locate him” and, therefore, she left an attested copy of the process with the office of the commissioner of motor vehicles and sent an attested copy of the process to the defendant via certified mail, return receipt requested, at 13 Meeting House Road, Apt. 11, Barkhamsted, CT.

On June 28, 2013, the defendant filed a motion to dismiss the complaint on the ground that, because the accident occurred in Massachusetts, the marshal's attempt to serve the defendant by serving Connecticut's commissioner of motor vehicles was insufficient and, accordingly, the court lacks personal jurisdiction over the defendant.   The defendant filed a memorandum of law in support of the motion and an affidavit by his attorney, Sarah B. Christie.¹  On July 25, 2013, the plaintiff filed an objection to the motion.   The defendant then filed a reply and attached Hunter v. Velez, Superior Court, judicial district of New Haven, Docket No. CV–10–6002067–S (July 12, 2011, Markle, J.), as an exhibit.   The matter was heard at the short calendar on August 19, 2013.

DISCUSSION

“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, which is now § 10–31.  “[W]hen a particular method of serving process is set forth by statute, that method must be followed.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).  “Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction.”  Id., 401.

“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.”  (Internal quotation marks omitted.)   Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Footnote omitted;  internal quotation marks omitted.)   Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).

In his memorandum of law, the defendant argues that the marshal was unable to effect either in-hand or abode service upon him.   Accordingly, the marshal attempted to make service pursuant to General Statutes § 52–63.   The defendant argues that the plaintiff could not make constructive service under this statute because the alleged accident occurred in Massachusetts and the statute refers to service on the commissioner of motor vehicles with respect to motor vehicles operated on the public highways of this state.   The defendant concludes that when a statute provides for a particular method of service, that method must be followed.

The marshal decided upon a “belt and suspenders” approach by making abode service pursuant to General Statutes § 52–57(a) on May 17, 2013 and by serving the defendant pursuant to § 52–63(b) on May 22, 2013.   With respect to § 52–63, the plaintiff argues that the defendant is a Connecticut resident and has a Connecticut driver's license, so he should be subject to service under § 52–63 even though the accident occurred outside of Connecticut.   Alternatively, the marshal made abode service at the address the defendant gave to the police at the accident and that this is sufficient.   In his reply to the plaintiff's objection, the defendant relies on Hunter v. Velez, supra, Superior Court, Docket No. CV–10–6002067–S, for the proposition that the plaintiff cannot serve the commissioner of motor vehicles when the suit arises out of an accident that occurred outside of Connecticut.

General Statutes § 52–63(a) provides that “[a]ny operator or owner of a motor vehicle ․ [shall] have agreed that any process in any civil action against him on account of any claim for damages resulting from his alleged negligence ․ in the operation of any motor vehicle in this state ² may be served upon the [commissioner of motor vehicles] as provided in this section ․” (Emphasis added.)  Section 52–63(b) further provides that “[s]ervice of civil process may be made on a motor vehicle operator ․ 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 a true and attested copy at least twelve days before the return day, by registered or certified mail ․ 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.”  “General Statutes § 52–63 provides for an alternative form of service where the defendant cannot be located for personal or abode service.”   Bartron v. Ferry, Superior Court, judicial district of Tolland, Docket No. CV–02–0078183–S (September 11, 2002, Scholl, J.) (33 Conn. L. Rptr. 87, 87).

“The principles that govern statutory construction are well established.   When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek 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 language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us 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.”  (Internal quotation marks omitted.)  Okeke v. Commissioner of Public Health, 304 Conn. 317, 325–26, 39 A.3d 1095 (2012).  “[W]e presume that the legislature intends sensible results from the statutes it enacts ․ Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results.”  (Internal quotation marks omitted.)  Hibner v. Bruening, 78 Conn.App. 456, 459, 828 A.2d 150 (2003).  “Furthermore, we presume that laws are enacted in view of existing relevant statutes ․ and that [s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 518, 923 A.2d 638 (2007).

In Hunter v. Velez, Superior Court, judicial district of New Haven, Docket No. CV–10–6002067–S (July 12, 2011, Markle, J.), the court analyzed a motion to dismiss based upon insufficient service of process under a similar statute.   In Hunter, the motor vehicle accident that was the subject of the underlying complaint occurred in Massachusetts.   The apportionment plaintiff claimed that it served the apportionment defendant pursuant to General Statutes § 52–62.  Section 52–62 governs service upon a nonresident in an action for negligent operation of a motor vehicle and provides that “[a]ny 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 ․ may be served upon the commissioner ․” (Emphasis added.)   The defendant brought a motion to dismiss the complaint, arguing that § 52-62 was “inapplicable to cases involving accidents that occur in other states.”  Hunter v. Velez, supra, Superior Court, Docket No. CV–10–6002067–S.   Citing to § 52–62(a), the court concluded that “[b]y its plain language, § 52–62 concerns accidents that occur in this state.”  (Emphasis added;  internal quotation marks omitted.)   Id. The court noted that whether or not the plaintiff “complied with the mandates of § 52–62(c) [was] irrelevant.”  Id. In addressing the plaintiff's argument that the defendant received actual notice of the pending litigation, the court emphasized that “[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.”  (Internal quotation marks omitted.)   Id.;  see also Hibner v. Bruening, supra, 78 Conn.App. 461 (court found that actual notice was not sufficient when plaintiff failed to comply substantially with § 52–63).

The statute at issue in Hunter, § 52–62, governed “Service upon nonresident in action for negligent operation of motor vehicle.”   The statute at issue here, § 52–63, governs “Service upon motor vehicle operator or owner not found at his recorded address.”   It is submitted, however, that the language of subsection (a) of these two statutes is sufficiently similar and, therefore, the analysis used in Hunter for § 52–62 is applicable to § 52–63.

Statutory interpretation is governed by § 1–2z, which directs the court to consider the text of the statute and to determine whether such text is plain and unambiguous.   Here, the language of § 52–63(a) explicitly provides that it is applicable only when a motor vehicle operator acted negligently in this state.   Although § 52–63(b) does not reiterate the words “in this state,” we must presume that laws are enacted in view of statutes already in existence.   Also, § 52–63(b) simply provides details regarding the process of serving a defendant under subsection (a).   Interpreting the two subsections in contrasting manners would lead to absurd and unworkable results.   Further, it is submitted that the language contained in § 52–63 and § 52–62 is sufficiently similar so that the court may employ the reasoning utilized by the court in the Hunter case.   Here, as in Hunter, a party's compliance with a later subsection is irrelevant if the party has not also complied with subsection (a).   This analysis is supported by Tesdahl v. Replacement Rent–A–Car, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV–93–529032 (December 27, 1993, Wagner, J.), in which the court held that the plaintiff did not make valid service on the defendant by solely relying on § 52–63(b).

However, although the defendant has the better argument regarding the interpretation of § 52–63 authorizing service on the commissioner, the defendant has neglected to consider that the marshal's return can be interpreted so that he made actual abode service on the defendant in accordance with § 52–57(a).   Service under that statute requires that process be served by leaving it “with the defendant, or at his usual place of abode ․” The marshal's return says that he left the process at the “possible place of abode of David Smith at 13 Meeting House Road, Apt 11, Barkhamsted, CT.” This is the same address given by the defendant to the police investigating the accident as shown on the police report.   There is no evidence before the court to indicate whether this is also the last address on file with the commissioner of motor vehicles.   The defendant has provided the court with nothing to contradict the police report.³  “When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made ․ that would give the court jurisdiction over [the defendant's] person, the defendant bears the burden of disproving personal jurisdiction ․ When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.”   Jimenez v. DeRosa, 109 Conn.App. 332, 339 (2008).   An officer's return of abode service is prima facie evidence of the facts stated therein and a defendant who contests the facts stated in the return bears the initial burden of disproving jurisdiction.  Id., 341.

It is true that the last known address on file with the commissioner is not, in and of itself, enough to establish that it was the defendant's usual place of abode.  Hibner v. Bruening, 78 Conn.App. 456, 465 (2003).   But, here, the address at which the marshal made service is the same address given to the police at the accident, not necessarily the address on file with the commissioner.   The defendant could have carried his burden of disproving personal jurisdiction by filing an affidavit certifying that he did not have his abode at 13 Meeting House Road, Apt. 11, Barkhamsted, Ct. at the time that service was left there by the marshal.   He failed to provide the court with any evidence that he did not have his abode at that address.   The court, therefore, finds that the plaintiff substantially complied with § 52–57(a) by making abode service on the defendant apart from the unnecessary service which the marshal made on the commissioner.  “[I]t is significant, though not conclusive, that the defendants actually did receive the process, thereby accomplishing the purpose of abode service.  Section 52–57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice.”  Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 861–62 (2006).

The motion to dismiss is denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. This affidavit attests to the accuracy of Exhibits A and B. Exhibit A is a copy of the plaintiff's complaint and Exhibit B is a copy of the marshal's return..  FN1. This affidavit attests to the accuracy of Exhibits A and B. Exhibit A is a copy of the plaintiff's complaint and Exhibit B is a copy of the marshal's return.

FN2. It is submitted to the court that a review of the legislative history indicates that this language was added in 1982 as a technical amendment..  FN2. It is submitted to the court that a review of the legislative history indicates that this language was added in 1982 as a technical amendment.

FN3. “[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts ․ If resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 108–09 (2009)..  FN3. “[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts ․ If resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken.  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 108–09 (2009).

Pickard, John W., J.