2005 Ct. Sup. 8978
No. CV030484621SConnecticut Superior Court Judicial District of New Haven at New Haven
May 13, 2005
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (#112)
LOPEZ, JUDGE.
On December 8, 2003, the plaintiff, Michelle Picozzi, filed a one-count complaint against the defendant Narragansett Bay (Narragansett) alleging a breach of contract for failure to provide underinsured motorist benefits. The complaint alleges that on November 6, 1998, Picozzi was injured when the car that she was operating, which was owned by her father Michael Picozzi, was struck in the rear by a vehicle driven by Albert Hale (Hale). The plaintiff recovered $20,000 from Hale’s automobile liability insurance company.
The plaintiff’s parents had an automobile insurance policy with the defendant, Narragansett Bay Insurance Company (Narragansett). This policy provided underinsured motorist benefits to covered persons, in the event that the party responsible for the accident did not have adequate insurance coverage to fully compensate covered persons for bodily injury and losses.
The plaintiff alleges that she is an insured person under her parents’ Narragansett automobile policy and that the amount that she recovered from Hale did not adequately compensate her for her injuries.
On June 2, 2004, the defendant filed an appearance, answer and special defenses. On January 26, 2005, the defendant filed a motion for summary judgment and a memorandum of law in support thereof. On February 10, 2005, the plaintiff filed an objection to the motion for summary judgment and a memorandum in support thereof.
The defendant moves for summary judgment on the ground that the court lacks subject matter jurisdiction because the claim for uninsured motorist benefits is based on a Rhode Island contract and the case involves a Rhode Island resident. Also, the CT Page 8979 defendant argues that a Connecticut court will only have jurisdiction over a foreign corporation if the state’s long-arm statute, General Statutes § 33-929, authorizes jurisdiction over the defendant and if the exercise of in personam jurisdiction would not violate due process. In response, the plaintiff argues that the court has subject matter jurisdiction over the claim because an action for underinsured motorist benefits is a contract action and the Superior Court has the authority to adjudicate contract disputes.
“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.” St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). Nevertheless, “[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . [Therefore] [t]he objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004). Accordingly, the court shall treat the defendant’s motion for summary judgment as a motion to dismiss. See Practice Book § 10-30 et seq. Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 488 n. 3, 854 A.2d 40 (2004).
“In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250, 851 A.2d 1165 (2004).
“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be CT Page 8980 indulged.” (Citations omitted; internal quotation marks omitted.)Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). Generally an action for underinsured motorist benefits is a contract action. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 384, 698 A.2d 859 (1997). Thus, “[i]t is axiomatic that the superior court, as a court of general jurisdiction, has subject matter jurisdiction to hear claims sounding in breach of contract . . .” Henry v. Perkins, Superior Court, judicial district of Fairfield, Docket No. CV 94 313715 (May 1, 1995, Maiocco, J.).
In the present case, the plaintiff’s action is premised on her allegation that the defendant breached its contractual obligation to provide her with underinsured motorist benefits. Thus it is a contract action over which this court has jurisdiction pursuant to General Statutes § 51-164s.[1] The concept of personal jurisdiction and subject matter jurisdiction are not synonymous. The fact that the defendant is a foreign corporation and may lack sufficient contact with Connecticut implicates personal jurisdiction. See KMH Partners, LLC v. New World Coffee Bagels, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 98 68192 (November 25, 1998, Klaczak, J.). Indeed, both cases the defendant relies on in its memorandum, Gaudio v. Gaudio, 23 Conn.App. 287, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); and Remuck v. Pilgrim, Superior Court, judicial district of New London, Docket No. CV 02 559499, (April 4, 2002, Hurley, J.T.R.), discuss personal jurisdiction and not subject matter jurisdiction.
Unlike an assertion that the court lacks subject matter jurisdiction, which cannot be waived by a party, a claim that the court lacks personal jurisdiction is waived if a party does not timely file a motion to dismiss to contest the court’s exercise of personal jurisdiction. Pitchell v. Hartford, 247 Conn. 422, 428, 722 A.2d 797 (1999); see also Practice Book § 10-32. Pursuant to Practice Book § 10-30, “[a]ny defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.” The defendant filed its appearance on June 2, 2004, but did not file its motion, until January 26, 2005, well after the thirty-day time limit set by Practice Book § 10-30. Therefore, the defendant waived its personal jurisdiction objection.
The defendant’s contention that the court lacks subject matter CT Page 8981 jurisdiction over the action because the plaintiff resided outside Connecticut at the time of the accident is also mistaken. Although, this argument may pertain to the issue of choice of law; see Interface Flooring Systems, Inc., v. Aetna Casualty Surety Co., 261 Conn. 601, 608, 804 A.2d 201 (2002); it does not deprive the court of subject matter jurisdiction per se. Moreover, the evidence on which the defendant relies for this contention, i.e., an affidavit from the plaintiff does not show that this matter is uncontested. Specifically, in paragraph three of the affidavit, the plaintiff attests that on the date of the accident she resided in Connecticut. Affidavits submitted in support of a motion to dismiss “are insufficient to determine the facts unless, like summary judgment, they disclose that no genuine issue as to a material fact exists.” (Internal quotation marks omitted.) Standard Tallow Corp v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
Accordingly, the defendant’s motion is denied.
Lopez, J.
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