Opinion
UWYCV176036367S
09-10-2018
Wayne LAGRAVE v. Cheyenne UTLEY et al.
UNPUBLISHED OPINION
Brazzel-Massaro, J.
FACTUAL BACKGROUND
The plaintiff, Wayne LaGrave, brings this action against the defendants, Cheyenne Utley, Scott Utley and Taylor Bandelloni, alleging negligence in connection with a multi-vehicle collision, purported to have occurred on January 5, 2017. The plaintiff filed his summons and complaint with the court on October 3, 2017, bearing a return date of October 10, 2017.
On March 16, 2018, the defendants/apportionment plaintiffs, Cheyenne Utley and Scott Utley, served an apportionment complaint upon the apportionment defendant, GEICO General Insurance Company, the plaintiffs’ insurance carrier, alleging that the accident was caused by an unidentified vehicle, operated by an unknown driver and that the plaintiff’s "uninsured/underinsured" motorist benefits should apply.
On April 17, 2018, the apportionment defendant moved to dismiss for lack of personal jurisdiction based upon insufficient service of process. The apportionment plaintiffs objected on May 9, 2018, to which the apportionment defendant filed a reply on May 16, 2018. The matter was heard on the short calendar on June 25, 2018.
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). Santoroso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[T]he court in deciding a motion to dismiss must consider the allegations of the complaint in their most favorable light." Savage v. Aronson, 214 Conn. 256, 63, 571 A.2d 696 (1990). 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 (1978-97) § 143 (now § 10-30[a] ).
In its memorandum in support of its motion to dismiss, the apportionment defendant contends that the apportionment action should be dismissed for lack of personal jurisdiction.
In their objection, the apportionment plaintiffs contend that equitable circumstances exist which should toll the 120-day limitation mandated by § 52-102b. The apportionment plaintiffs assert they were not able to effectuate service in the time required by statute because they were trying to discover the identity of the unidentified vehicle, or "phantom driver," that struck them, as well as the proper insurance carrier associated with that vehicle. Failing that, they purportedly attempted service on the apportionment defendant on January 31, 2018, but the Marshal’s office purportedly needed the address of the subsidiary in order to make effective service, which took time to ascertain. The apportionment plaintiffs also asserted at short calendar that discovery issues with the plaintiff also caused the delay in service. Moreover, the apportionment plaintiffs contend that the unidentified vehicle was the direct cause of the accident and to not allow apportionment would prejudice their defense.
In reply, the apportionment defendant contends that the apportionment plaintiffs failed to produce any evidence supporting their contentions, nor have they provided a sufficient reason as to why they could not identify and serve the correct insurance entity within the time required. General Statutes § 52-102b(a) provides in relevant part: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff’s damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff’s original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint ..."
"[C]ompliance with § 52-102b(a) is mandatory. [M]andatory time limitations must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Internal quotation marks omitted.) Lostritto v. Communtiy Action Agency of New Haven, Inc., 269 Conn. 10, 35, 848 A.2d 418 (2004). See also Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007) (equitable exceptions to mandatory time limitations are not limited to waiver or consent). "[N]oncompliance with [General Statutes] § 52-102b implicates a court’s personal jurisdiction ..." Lostritto v. Community Action Agency of New Haven, Inc. supra, 269 Conn. 14.
In the present case, this court determines that § 52-102b(a) was not complied with, and, thus, personal jurisdiction is lacking. The apportionment defendant has shown that service occurred outside the 120-day period required by § 52-102b(a), approximately thirty-seven days late, and the apportionment plaintiff must demonstrate an equitable reason for noncompliance. See Cogswell v. American Transit Insurance Co., 282 Conn. 505, 515, 923 A.2d 638, 647 (2007) ("When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." [internal quotation marks omitted] ).
"[T]he determination of what equity requires in a particular case, the balancing of the equities is a matter for the discretion of the trial court." (Internal quotation marks omitted.) Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). In making this determination, the court is not confined to any set criteria but instead may "examine all relevant factors to ensure that complete justice is done." (Internal quotation marks omitted.) Sunset Mortgage v. Agolio, 109 Conn.App. 198, 203, 952 A.2d 65 (2008). "Sound discretion, by definition, means a discretion that is not exercised arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law ..." Rodriguez v. Ancona, 88 Conn.App. 193, 201, 868 A.2d 807 (2005).
Various Superior Courts have found equitable exceptions to the requirements of § 52-102b(a), but a proper basis in the record must exist for the court to do so. See, e.g., Gonzalez v. Connecticut Natural Gas Corp., Superior Court, judicial district of Hartford, Docket No. CV-12-6030647-S (June 19, 2013, Peck, J.) (56 Conn.L.Rptr. 417, 419) (apportionment plaintiff failed to show hardship or reason preventing service on apportionment defendant); Mills v. Solution, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 07-5009361-S (September 18, 2008, Arnold, J.) (invoking equity after apportionment plaintiff demonstrated efforts to serve defendant and showed events outside control that frustrated efforts); Maggio v. Aames Funding Corp., Superior Court, judicial district of New Haven, Docket No. CV 06-50000907-S (April 11, 2008, Gilligan, J.) (invoking equity where no legal basis for apportionment existed at the time statutory deadline had run); Angelone v. Connecticut Oil Recycling Services, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 06-5002890-S (October 22, 2007, Roche, J.) (44 Conn.L.Rptr. 415, 417) (not invoking equity because "[t]he present plaintiff ... has averred no ... circumstances or equitable factors for consideration by the court ...").
The apportionment plaintiffs assert that difficulties in discovering the identity of the "phantom driver," as well as discovery delays should equitably excuse their noncompliance with § 52-102b(a). These arguments are unsupported by any evidence in the record, and thus, are unavailing. Although the procedural record indicates some delays in responses to discovery requests, which solicited motions for order of compliance, it is not clear what information, if any, relating to the "phantom driver," or the plaintiff’s insurance carrier, were contained in those requests. Furthermore, the apportionment plaintiff’s representations in their brief and at short calendar as to difficulties in effectuating service and discovery delays do not support their arguments that equity should apply because "[i]t is well settled that statements of counsel are not evidence." (Internal quotation marks omitted.) Temlock v. Temlock, 95 Conn.App. 505, 517, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006).
Because of the dearth of evidence, there is no information indicating that this claim was unavailable to the apportionment plaintiffs at the time this action was initiated; cf. Maggio v. Aames Funding Corp., supra, Superior Court, Docket No. CV 06-5000907-S, nor have the apportionment plaintiffs shown any hardship or reason that would have prevented them from serving the apportionment defendant before the statutory deadline. Cf. Mills v. Solution, LLC, supra, Superior Court, Docket No. CV 007-5009361-S. As an initial defendant, the apportionment plaintiff had 120 days from the time it received notice of the potential liability to investigate and serve a complaint against potential apportionment defendants. They failed to do so and have not averred sufficient proof to invoke equity. See Angelone v. Connecticut Oil Recycling Services, LLC, supra, 44 Conn.L.Rptr. 417. The potential loss of apportionment, standing alone, is not enough to override the restrictions of § 52-102b. See Gonzalez v. Connecticut Natural Gas Corp., supra, 56 Conn.L.Rptr. 419.
For the foregoing reasons, the motion to dismiss the apportionment complaint is granted. In its moving papers, the apportionment defendant refers to this deficiency as implicating subject matter jurisdiction, as opposed to personal jurisdiction. This is incorrect. Our Supreme Court has concluded that "noncompliance with [General Statutes] § 52-102b implicates a court’s personal jurisdiction ..." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004). The apportionment plaintiffs objected to this discrepancy at short calendar, but also improperly characterize their objection as one to a motion to strike, rather than a motion to dismiss. Despite these discrepancies, the court concludes the apportionment defendant’s motion to dismiss should be considered. The motion was filed within thirty days of appearance, and asserts a defect in the manner in which process was served. The court thus concludes that personal jurisdiction is properly being challenged. See Lostritto v. Community Action Agency of New Haven, Inc. 269 Conn. 10, 848 A.2d 418 (2004) (considering challenge to personal jurisdiction despite mistaken use of nomenclature in referring to motion as challenge to subject matter jurisdiction because substance of motion challenged service of process); Harwinton Storage, LLC v. Harwinton, Superior Court, judicial district of Litchfield, Docket No. CV-14-6010721-S (October 29, 2014, Danaher, J.) 161 (considering challenge to personal jurisdiction despite use of erroneous terminology in moving papers).