Gary Tatro v. Morgan Romesburg
CV 10 6003815
????Decided: January 17, 2012
FACTS
Presently before the court is a motion to dismiss filed by the defendant, USAA Casualty Insurance Company, on the ground that the court lacks subject matter jurisdiction because the plaintiff Gary Tatro, lacks standing.
In his second amended complaint, the plaintiff alleges the following facts.1??On May 4, 2008, the plaintiff was involved in an automobile accident in Groton, caused by the negligence and carelessness of Morgan Romesburg. ? The plaintiff suffered various injuries as a result. ? At the time of the accident, Morgan Romesburg was residing in the household of Mark Romesburg, his father. ? Mark Romesburg had a contract of insurance with the defendant for automobile insurance, which contained coverage for personal injuries caused by the operation of a motor vehicle by members of Mark Romesburg’s household. ? Mark Romesburg breached the insurance contract by not reporting the plaintiff’s present claim to the defendant and by refusing to provide the plaintiff with the name and policy number of his automobile insurance. ? The defendant breached the insurance contract by refusing to accept the plaintiff’s claim and by refusing to compensate the plaintiff for the damages sustained due to the negligence of Morgan Romesburg. ? The relevant counts against the defendant include breach of a third party beneficiary contract (count three), bad faith (count four), violation of the Connecticut Unfair Insurance Practices Act (CUIPA) (count five), and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (count six).
On November 22, 2010, the defendant filed its motion to dismiss, accompanied by a memorandum of law, on the ground that the plaintiff lacks standing because the plaintiff is not a party to the insurance contract and the plaintiff has not recovered a judgment allowing him to bring a direct action against the defendant under General Statutes ??38a?321. ? The plaintiff filed his objection to the motion to dismiss and memorandum of law on February 3, 2011, on the ground that he has standing to bring a breach of a third party beneficiary contract as he was a contemplated beneficiary and having been denied coverage, he is an aggrieved party. ? The defendant filed a reply on December 15, 2011, and the matter was heard at short calendar on January 3, 2012.
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). ??When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ? In this regard, 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.) ?Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). ??[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ? clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.? ?(Internal quotation marks omitted.) ?Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213?14, 982 A.2d 1053 (2009).
?The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ?Practice Book ??10?31(a).? ?(Internal quotation marks omitted.) ?Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213. ??Standing is the legal right to set the judicial machinery in motion. ? One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action ? Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.? ?(Internal quotation marks omitted.) ?St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 809, 12 A.3d 852 (2011).
The defendant argues that the plaintiff lacks standing because he is not a party to the insurance contract and the complaint does not allege that the defendant and Mark Romesburg intended that the defendant would assume a direct obligation to the plaintiff. ? Furthermore, the defendant argues that an injured plaintiff cannot bring a direct action against an insurance company, absent a judgment against the insured tortfeasor. ? The plaintiff counters that he has standing because he is ?clearly a contemplated beneficiary of an automobile insurance policy, which provides payment of damages for bodily injury for which an insured or family member of an insured is legally responsible because of an automobile accident.? ? Accordingly, the plaintiff argues that he is an aggrieved party because his claims for bodily injury are covered under the defendant’s policy and the defendant has denied coverage.
?[T]he law regarding the creation of contract rights in third parties in Connecticut is ? well settled ? [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and ? that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties ? Although [the Supreme Court] explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary ? [it] emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be ? because the parties to the contract so intended.? ?(Citations omitted; ?internal quotation marks omitted.) ?Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580?81, 833 A.2d 908 (2003).
?[T]he fact that a person is a foreseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary.? ?Grigerik v. Sharpe, 247 Conn. 293, 317?18, 721 A.2d 526 (1998). ??While there is [little] appellate guidance on third-party beneficiary status as it impacts insurance parties, there are unreported Superior Court cases which carefully analyze those issues. ? They conclude that an injured party, is not, without more, a third party beneficiary of the insurance contract between a tortfeasor and the insurance company.? ? Davis v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 10 6008253 (February 7, 2011, Wilson, J.).
?A third party claimant is subrogated to the rights of the insured, and is entitled to bring an action against an insurance company, only after judgment.? ?(Emphasis in original.) ?Carford v. Empire Fire & Marine Ins. Co., 94 Conn.App. 41, 46, 891 A.2d 55 (2006). ?General Statutes ??38a?321 provides in relevant part: ??Upon the recovery of a final judgment against any person ? for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.?
In the present case, the parties to the insurance contract are Mark Romesburg, the father of Morgan Romesburg, and the defendant. ? Pursuant to the case law discussed herein, the plaintiff is not a third party beneficiary of the insurance contract because he does not allege that the defendant and Mark Romesburg intended that the defendant assume a direct obligation to the plaintiff. ? Additionally, the plaintiff alleges no more than that he is an injured party. ? Even viewing the allegations of the complaint in the light most favorable to the pleader, it cannot be inferred that the parties to the insurance contract intended for the plaintiff to be a third party beneficiary. ? The plaintiff’s argument that he is entitled to coverage under Mark Romesburg’s policy with the defendant is premised on the assumption that he will be successful in his currently pending negligence action against Morgan Romesburg. ? Without more, the plaintiff is not a party to the insurance contract, nor a third party beneficiary and does not have a judgment allowing for subrogation under General Statutes ??38a?321. ? Accordingly, the plaintiff lacks standing, and the court lacks subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is granted.
Cosgrove, J.
FOOTNOTES
FN1.?In his second amended complaint, the plaintiff also brought suit against Morgan Romesburg, Mark Romesburg and Trumbull Insurance Company. ? On July 20, 2010, the court, Cosgrove, J., granted Mark Romesburg’s motion to dismiss for lack of personal jurisdiction due to insufficient service of process. ? The remaining defendants, Morgan Romesburg and Trumbull Insurance Company, are not parties to this motion to dismiss..??FN1.?In his second amended complaint, the plaintiff also brought suit against Morgan Romesburg, Mark Romesburg and Trumbull Insurance Company. ? On July 20, 2010, the court, Cosgrove, J., granted Mark Romesburg’s motion to dismiss for lack of personal jurisdiction due to insufficient service of process. ? The remaining defendants, Morgan Romesburg and Trumbull Insurance Company, are not parties to this motion to dismiss.
Cosgrove, Emmet L., J.