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Samelko v. Kingstone Insurance. Co.

Supreme Court of Connecticut

June 12, 2018

JERZY SAMELKO ET AL.
v.
KINGSTONE INSURANCE COMPANY

          Argued December 19, 2017

         Procedural History

         Action seeking, inter alia, to recover the proceeds allegedly due under an automobile insurance policy issued by the defendant, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Wenzel, J., granted the defendant's motion to dismiss for lack of personal jurisdiction and rendered judgment thereon, from which the plaintiffs appealed. Reversed; further proceedings.

          John L. Cordani, Jr., for the appellants (plaintiffs).

          Regina P. Armon, with whom was Michele C. Wojcik, for the appellee (defendant).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. [*]

          OPINION

          D'AURIA, J.

         In this case, we must decide whether a Connecticut court may properly exercise personal jurisdiction over an out-of-state insurer whose only significant contacts with this state are the inclusion of Connecticut within the coverage territory of an automobile insurance policy and the occurrence of an automobile collision in Connecticut involving its insured. The defendant, Kingstone Insurance Company, a company domiciled in New York, contractually agreed to defend and indemnify its insured nationwide. After a vehicle driven by the insured collided in Connecticut with a vehicle driven by the plaintiffs, Jerzy and Sylvia Samelko, however, the defendant failed to defend its insured and failed to provide indemnity after a judgment was rendered against the insured for damages resulting from the collision. The plaintiffs were subrogated to the rights of the insured under the policy issued by the defendant pursuant to General Statutes § 38a-321[1] and brought this action directly against the defendant to recover damages.

         The trial court dismissed the action on the ground that it lacked personal jurisdiction over the defendant. We conclude, however, that exercising personal jurisdiction over the defendant insurer is permitted by our corporate long arm statute, General Statutes § 33-929 (f) (1), and comports with the due process clause of the fourteenth amendment to the United Statutes Constitution. See U.S. Const., amend. XIV, § 1. Accordingly, we disagree with the trial court's contrary conclusion and, therefore, reverse and remand the case with direction to deny the defendant's motion to dismiss and for further proceedings.

         The following facts, which were alleged in the complaint or which the trial court found were not genuinely in dispute, are relevant to this appeal. The defendant issued a business automobile insurance policy covering a vehicle driven by Geraldo A. Cardozo (insured). The policy was written in New York at the defendant's principal place of business, and the vehicle was garaged in New York at that time. The defendant does not maintain any offices in Connecticut, was not licensed, at the time it issued the policy, to provide insurance in Connecticut, and did not direct or participate in any business transactions in Connecticut.

         In consideration for paid premiums and adherence to the terms of the policy, the defendant agreed to provide its insured $100, 000 of liability insurance for any one accident or loss. To be covered by the policy, however, the accident or loss must occur within the designated coverage territory of ‘‘[t]he United States of America . . . .'' The policy obligates the defendant to indemnify its insured by ‘‘pay[ing] all sums an insured legally must pay as damages because of bodily injury or property damage . . . caused by an accident . . . .'' (Internal quotation marks omitted.) It also requires the defendant to defend its insured, stating that ‘‘[the defendant has] the right and duty to defend any insured against [an action] asking for such damages . . . .'' (Internal quotation marks omitted.)

         While this policy with nationwide coverage was in effect, the insured's vehicle collided with a vehicle occupied by the plaintiffs in Stamford, Connecticut. The plaintiffs each sustained bodily injury as a result of the collision, and the defendant's insured was found legally responsible after a default judgment was rendered against him. Samelko v. Cardozo, Superior Court, judicial district of Fairfield, Docket No. CV-09-5024762-S (March 14, 2013). The judgment was rendered against the insured for $126, 839.93 in favor of Jerzy Samelko and for $10, 852 in favor of Sylvia Samelko. Id.

         The defendant received notice of the accident and the action brought against its insured, but the defendant failed to defend the insured and failed to indemnify him for the judgment rendered against him. The plaintiffs then brought this action against the defendant, [2] claiming breach of contract, breach of the covenant of good faith and fair dealing, negligence, conversion, unfair claims settlement practices in violation of General Statutes § 38a-816 (6), unfair trade practices in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and unjust enrichment.

         Although the plaintiffs are not parties to the insurance contract between the insured and the defendant, they brought this action under Connecticut's insurance subrogation statute, § 38a-321, which allows a party who has an unsatisfied judgment against an insured for bodily injury to step into the shoes of the insured and bring a claim under the insured's policy directly against the insurer. See footnote 1 of this opinion; see also Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 198, 663 A.2d 1001 (1995) (noting that § 38a-321 authorizes judgment creditor ‘‘to assert any claim or defense that [the insured judgment debtor] could have raised [in an action against the insurer]'').

         The defendant moved to dismiss this action for lack of personal jurisdiction. The principal basis of the defendant's motion was that the defendant did not do business in Connecticut, and, thus, it would not be subject to the long arm statute and requiring it to defend this action in Connecticut would not comport with due process. Both parties undertook jurisdictional discovery, and the plaintiffs filed a brief in opposition to the motion to dismiss. The plaintiffs responded in relevant part that there was personal jurisdiction over the defendant because their claims ‘‘[arose] out of a contract to be performed in this state'' pursuant to § 33-929 (f) (1) and (4).[3]

         The trial court granted the defendant's motion to dismiss, reasoning that ‘‘there is no evidence'' and ‘‘no authority is provided'' to support the plaintiffs' claims. Specifically, the court found that the plaintiffs had failed to meet their burden of providing evidence that the cause of action arose out of a contract to be performed in Connecticut. Instead, the trial court was persuaded by the fact that the insured resided in New York, ‘‘the vehicle . . . was registered and garaged in New York, '' the insured ‘‘maintained his driver's license in New York, '' and ‘‘[t]he policy was sold, paid for and written in New York . . . .'' In short, the court found that ‘‘there is no evidence the defendant ever had notice, or even an inkling, that its insured was living in Connecticut'' for purposes of the due process analysis. The plaintiffs moved for reargument and reconsideration, which the trial court denied. The plaintiffs appealed to the Appellate Court, and this court transferred the appeal to itself. See General Statutes § 51-199 (c); Practice Book § 65-1.

         The outcome of this appeal turns on whether the trial court had personal jurisdiction over the defendant, an out-of-state (foreign) corporation. ‘‘[A] court cannot render a judgment without first obtaining personal jurisdiction over the parties.'' Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008). ‘‘When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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. . . . Where, however, as here, the motion is accompanied by supporting affidavits [and other evidence] containing undisputed facts, the court may look to their content for determination of the jurisdictional issue.'' (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); see Cuozzo v. Orange, 315 Conn. 606, 615, 109 A.3d 903 (2015) (court may consider supplementary, undisputed facts in determining jurisdictional issue).

         Ordinarily, the defendant has the burden to disprove personal jurisdiction. Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515. However, ‘‘[i]f the defendant challenging the court's personal jurisdiction is a foreign corporation . . . it is the plaintiff's burden to prove the court's jurisdiction.'' Id. To do so, the ...


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