Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00597-IVIRK Document 128-3 Filed O2/11/2005 Page 1 014
EXHIBIT 2

Case 3:03-cv-00597-IVIRK Document 128-3 Filed 02/1 1/2005 Page 2 oll’#1E€ 2 OY4

Not Reported inA.2d Page l
1999 WL 639909 (Corm.Super.)
(Cite as: 1999 WL 639909 (C0nn.Super.))
Only the Westlaw citation is currently available. employer, Associated Programs Agency, Inc.
("APAI"). The third~pa1·ty plaintiffs allege that the
UNPUBLISHED OPINION. CHECK COURT third—party defendants agreed to obtain for them a
RULES BEFORE CITING. policy of liability insurance, wherein Empire Fire
and Marine Insurance Co. of Omaha, Nebraska,
would pay all sums which they would become
Superior Court of Connecticut. obligated to pay as damages arising out of their
NATIONWIDE MUTUAL INS., ownership, maintenance or use of the vehicle
v. operated by Davidson. The third—party plaintiffs
Lawrence DAVIDSON. further allege that the policy was canceled effective
N0. 545891. December 24, 1995 and, therefore, was not in effect
on the date of the subject accident due to the
Aug. 3, 1999. negligence of the third-party defendants.
MEMORANDUM OF DECISION On March 17, 1999, the third»pa11y defendants
moved to dismiss the complaint on the grounds that
MIHALAKOS. Connecticut has no longarm jurisdiction.
*1 The plaintiff, Nationwide Mutual Insurance "Because a lack of personal jurisdiction may be
Company ("Nationwide"), is an Ohio corporation in waived by the defendant, the rules of practice
the business of writing insurance policies. require the defendant to challenge that jurisdiction
Nationwide is authorized by the Insurance by a motion to dismiss." (Internal quotation marks
Commissioner of the State of Connecticut to omitted.) Knipple v. Viking Communications, Ltd.,
transact business in Connecticut. 236 Corm. 602, 605, 674 A.2d 426 (1996).
On March 19, 1998, Nationwide commenced an The third—party defendants argue that there is no
action in this court against Lawrence Davidson, longarm jurisdiction because: (1) Massa does not
Richard Bittone, Towmasters, Inc., Parasol, Inc., reside in Connecticut and APAI does not have a
Fours S Leasing Co., Inc., and Frederick Sacco for principal place of business in Connecticut; (2)
damages incurred by its insured, Phyllis Nyahay, as Massa and APAI do not transact business in
a result of a motor vehicle accident with the Comrecticut, or have any contacts with the State of
defendant, Davidson. Said accident occurred in Connecticut; and (3) all of the underlying
Franklin, Comiecticut on or about March 19, 1996. transactions which form the basis for the alleged
claims occurred outside the state of Connecticut.
Nationwide alleges that Bittone, Towmasters and
Parasol employed Davidson, and that the vehicle In opposition, the third·party plaintiffs argue that it
operated by Davidson was uninsured for the is proper to utilize Connecticufs impleader rules to
damages incurred by Nyahay. Nationwide further implead third-pany defendants in an action already
alleges that to the extent that it must pay uninsured properly commenced.
motorist benefits to Nyahay, it is subrogated to any
rights Nyahay has against these defendants in the Connecticut uses a two-part inquiry to determine
amount of such payments. whether there is personal jurisdiction over a foreign
corporation. Frazer v. McGowan, 198 Conn. 243,
On December 23, 1998, Bittone, Parasol and 246, 502 A.2d 905 (1986). "The trial court must
Towmasters filed a six—count third-party complaint first decide whether the applicable state longarm
against Robert L. Massa ("Massa") and his statute authorizes the assertion of jurisdiction over
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Case 3:03-cv-00597-IVIRK Document 128-3 Filed 02/1 1/2005 Page 3 oi’%1€€ 3 OM
Not Reported in A.2d Page 2
1999 WL 639909 (Conn.Super.)
(Cite as: 1999 WL 639909 (Conn.Super.))
the [defendant]. lf the statutory requirements [are] and substantial justice" are not offended by
met, its second obligation [is] then to decide requiring a party to defend his case in the forum
whether the exercise of jurisdiction over the state." International Shoe Co. v. Washington, 326
[defendant] would violate constitutional principles U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
of due process." (lntemal quotation marks omitted.) "[T]he defendant's conduct and connection with the
Knipple v. Viking Communications, Ltd., supra, forum State [should be] such that [it] should
236 Conn. 606. reasonably anticipate being haled into court there."
World-Wide Volkswagen Corp. v. Woodson, 444
*2 General Statutes § 33-929 (fonnerly § 33-411) U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490
is Connecticut's longarm statute governing (1980). "The substantial connection between the
jurisdiction over foreign corporations. Section defendant and the forum state necessary for a
33-929(f) provides that a foreign corporation will fmding of minimum contacts must come about by
be subject to suit in the state of Connecticut by a an action of the defendant purposely directed
resident of the state, regardless of whether the toward the forum state." Asahi Metal Industry Co.,
foreign corporation transacts business in the state, Ltd. v. Superior Court of Calqfornia, Solano County,
on any cause of action arising out of a 1) contract, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92
2) solicitation, 3) production, manufacture, (1987).
distribution of goods, or 4) tortious conduct, by or
with the foreign corporation. General Statutes § Here, the third—party plaintiffs allege negligence
33—929(i). and breach of contract against the third—party
defendants for failing to reinstate and/or obtain
As the court recognized in Winkelman v. Dohm, replacement coverage subsequent to the
"the United States District Court [has] interpreted cancellation of their automobile policy of insurance.
Section 33—411(c) [now Section 33-929(f) ] as
directed toward assertions of original jurisdiction *3 The agreement to obtain insurance coverage for
and not [to] extensions of existing jurisdiction to the third-party plaintiffs was entered into in the state
third parties." (Internal quotation marks omitted.) of New Jersey. The alleged service to be
Winkelman v. Dohm, Superior Court, judicial performed--retention of a contract of insurance——was
district of Waterbury, Docket No. 096682, 6 to be performed in New Jersey. Without more, the
CONN. L. RPTR. 381 (April 27, 1992) (Barnett, J execution of this contract and its alleged breach
.), citing Connecticut General LU"e Ins. Co. v. SVA, fails to invoke Connecticut's longarm jurisdiction.
743 F.Supp. 107, 109 (D.Conn.1990).
Nevertheless, the third—party plaintiffs argue that
"Vtrhere, as here, there is jurisdiction of the the underlying contract of insurance contemplated
underlying claim, there is personal jurisdiction over that vehicles would be driven in Comiecticut, and as
the impleaded parties The relevant statute is not a result, claims would arise in Connecticut which
Section 33-41l(c), but rather Section 52-102a would require the contract of insurance to be
(impleading of third parties by defendant) about performed in Connecticut through the defense
which no complaint as to a lack of compliance has and/or payment of any disputed claims.
been made." (Citation omitted.) Id. Similarly, in the
present case, compliance with state law The court, however, is not presented with the
jurisdictional statutes does not complete the factual scenario posed by the third—party plaintiffs.
analysis however. Once a trial court determines that Here, the third—party plaintiffs have alleged that the
the statutory requirements for jurisdiction have been third—party defendants are responsible for a gap in
met, the court must then determine whether the insurance coverage during which the incident
statutory requirements are sufficient to meet the involving the plaintiff occurred. Hence, the
"minimum contacts" requirements for constitutional third-party plaintiffs do not allege the existence of
due process. an active contract of insurance with the third—party
defendants when the accident in Connecticut
Under the federal analysis, the contacts must be of occurred.
a nature where the "traditional notions of fair play
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Case 3:03-cv-00597-IVIRK Document 128-3 Filed 02/1 1/2005 Page 4 o?2IS€ 4 OM
Not Reported in A.2d Page 3
1999 WL 639909 (Conn.Super.)
(Cite as: 1999 WL 639909 (C0m1.Super.))
As a result, this court is faced with determining
whether it has jurisdiction—·that is sufficient to meet
the minimum contacts requirements of federal due
process--over defendants who do not reside in
Connecticut/have a principal place of business in
Connecticut, do not transact business in Connecticut
or have any contacts with Connecticut, and where
the underlying transaction which forms the basis for
the third—party plaintiffs claims is a contract of
insurance which was neither negotiated nor signed
in Comiecticut, and which was not even in effect at
the time the accident in Connecticut occurred.
Based on the foregoing, this couit finds that it lacks
jurisdiction over the defendants due to insufficient
minimum contacts. Accordingly, the motion to
dismiss is granted.
1999 WL 639909 (Conn.Super.)
END OF DOCUMENT
© 2005 Thomson/West, No Claim to Orig. U.S. Govt. Works.
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