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Moretti v. Allstate Insurance Co.

Superior Court of Connecticut, Judicial District of Ansonia-Milford, Milford

September 28, 2015

Vincenzina Cynthia Moretti, Executrix
v.
Allstate Insurance Company

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (NO. 102), AND PLAINTIFF'S REQUEST FOR LEAVE TO AMEND WRIT, SUMMONS, AND COMPLAINT (NO. 104)

Denise D. Markle, J.

The plaintiff, Vincenzina Cynthia Moretti, executrix of the estate of Carmela Verni, commenced the present action by way of writ, summons, and complaint dated February 11, 2015, returnable April 7, 2015. The plaintiff alleges the following facts. On or about November 16, 2006, Verni was injured in an automobile accident caused by an underinsured motorist.[1] At the time of the accident, Verni was covered by an automobile insurance policy issued by the defendant, Allstate, which included uninsured/underinsured motorist coverage. The plaintiff now seeks underinsured motorist benefits that were owed to Verni.

On May 18, 2015, the defendant filed a motion to dismiss the case for lack of personal jurisdiction due to insufficient process on the ground that the summons included a return date of April 7, 2015, but was not returned to court until April 20, 2015, in violation of General Statutes § § 52-46a and 52-48. The plaintiff filed an objection and request for leave to file an amended writ, summons, and complaint on July 23, 2015. The plaintiff seeks to amend the return date to September 22, 2015, and date the summons July 23, 2015. On July 24, 2015, the defendant filed an objection to the plaintiff's request for leave to amend her writ, summons, and complaint.[2] This matter was heard at short calendar on July 27, 2015.

" [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " 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)] insufficiency of process; and [(4)] 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 § 10-30(a). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).

Generally, " [a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). A writ of summons " is an essential element to the validity of the jurisdiction of the court . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons." (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991).

The defendant argues that the court should dismiss the plaintiff's case for lack of personal jurisdiction because she failed to return the writ to court at least six days prior to the return date as required by § § 52-46a and 52-48. Rather, the plaintiff returned the writ thirteen days after the return date. With respect to the plaintiff's request for leave to amend the writ, summons, and complaint, the defendant argues that " the instant case is not viable and the defects cannot be corrected with the new return date." The plaintiff counters that the court should sustain its objection and grant its request for leave to amend because " [t]he substantial harm and prejudice the plaintiff would suffer if she were not allowed to file an amended writ, summons, and complaint and have this case heard [on] its merits far outweighs any harm or delay the defendant would suffer if the motion to amend were granted."

Section 52-46a provides that " [p]rocess in civil actions . . . returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, [shall be returned] to the clerk of such court at least six days before the return day." In addition, under § 52-48 " (a) Process in civil actions . . . brought to the Superior Court may be made returnable on any Tuesday in any month . . . (b) All process shall be made returnable not later than two months after the date of the process . . ."

" [A] party may amend his or her pleadings or other parts of the record or proceedings . . . [b]y filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon . . ." Practice Book § 10-60. Pursuant to General Statutes § 52-72(a), " Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective." " Section 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit." Coppola v. Coppola, 243 Conn. 657, 664, 707 A.2d 281 (1998). " [A]s a general rule, a trial court should permit a plaintiff to amend the return date when, on the basis of the facts of a particular case, the amendment brings process into compliance with the mandatory requirements of both § 52-46a and § 52-48(b)." Ribeiro v. Fasano, Ippolito and Lee, P.C., 157 Conn.App. 617, 624-25, 117 A.3d 965 (2015).

" Civil process is the manner in which civil actions are commenced . . . Our Supreme Court has construed 'the term process to include . . . the summons, the complaint and any requisite attachments thereto.'" (Citation omitted; internal quotation marks omitted.) Id., 626.

" Courts have permitted parties to amend civil process to correct the wrong return date; see Haigh v. Haigh, 50 Conn.App. 456, 717 A.2d 837 (1998); to correct a one calendar year difference between the return date on the summons and on the complaint; see Willamette Management Associates, Inc. v. Palczynski, 134 Conn.App. 58, 38 A.3d 1212 (2012); to correct the action where it had been made returnable to the wrong court; see Stingone v. Elephant's Trunk Flea Market, 53 Conn.App. 725, 732 A.2d 200 (1999); and to correct an apartment number for the defendant. See Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980). Our Supreme Court allows an improper return date to be amended after the return date has passed when doing so will not offend § 52-48(b); see Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. at 619-20, 642 A.2d 1186; and to amend the return date to correct a failure to return process to court six days before the return date, if time permits. See Coppola v. Coppola, supra, 243 Conn. at 664, 707 A.2d 281." Id., 627-28. Nonetheless, in Ribeiro v. Fasano, Ippolito and Lee, supra, 157 Conn.App. 629-31, our Appellate Court recently held that § 52-72 does not extend so far as to allow a plaintiff to amend the date process was actually returned to court.

In the present case, the plaintiff seeks to amend the writ, summons, and complaint to be dated July 23, 2015, and returnable on September 22, 2015. These dates are compliant with § 52-46a because the writ was returned to this court on April 20, 2015, which is more than six days before September 22, 2015. The new dates also comply with § 52-48 because they are not greater than two months apart, and September 22, 2015, is a Tuesday. Our Supreme Court has also been liberal with respect to allowing similar process amendments. See Ribeiro, supra, 157 Conn.App. 627-28.

For the reasons set forth above, the court denies the defendant's motion to dismiss and grants the plaintiff's request for leave to ...


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