JERZY SAMELKO ET AL.
KINGSTONE INSURANCE COMPANY
December 19, 2017
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.
L. Cordani, Jr., for the appellants (plaintiffs).
P. Armon, with whom was Michele C. Wojcik, for the appellee
Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn,
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 and brought this action directly against
the defendant to recover damages.
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.
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.
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.)
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.
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,  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
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]'').
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
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.
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).
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 ...