Argued
March 6, 2019
Procedural
History
Action
to recover damages for, inter alia, breach of contract, and
for other relief, brought to the Superior Court in the
judicial district of Danbury, where the court, Mintz, J.,
granted the motion to dismiss filed by the defendant Allstate
Insurance Company and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Kenneth A. Voire, for the appellant (plaintiff).
Raymond J. Kelly, for the appellee (defendant Allstate
Insurance Company).
DiPentima, C. J, and Lavine and Harper, Js
OPINION
DiPENTIMA, C. J.
The
plaintiff, Hilario Truck Center, LLC, appeals from the
judgment of dismissal of the third count of its operative
complaint following the granting of the motion to dismiss
filed by the defendant Allstate Insurance Company
(Allstate).[1] The plaintiff argues that the court erred
when it concluded that the plaintiff lacked standing to bring
a claim as a third-party beneficiary against Allstate
pursuant to an automobile insurance policy issued to the
defendant Kevin E. Kohn. We affirm the judgment of the trial
court.
The
plaintiff commenced the present action in October, 2015. In
its operative complaint, the plaintiff alleged the following
facts.[2] On October 23, 2014, the defendant Kevin
S. Kohn was operating a 1995 Buick in Newtown. The vehicle,
owned by his father, Kevin E. Kohn, swerved off the road and
came to rest on the property of Cliff Beers and Maryellen
Beers. Kevin E. Kohn called the plaintiff to remove the
vehicle from the property and tow the vehicle to its
facility. The plaintiff successfully removed the vehicle from
the Beers' property.
The
plaintiff filed a three count complaint against Kevin S.
Kohn, Kevin E. Kohn and Allstate. The first and second
counts, sounding in breach of contract and unjust enrichment,
were directed against Kevin S. Kohn and Kevin E.
Kohn.[3] The third count, directed against
Allstate, alleged that Kevin E. Kohn was the named insured of
an insurance policy issued by Allstate. The plaintiff further
claimed the insurance policy obligated Allstate to make
payments to a third party for damages arising from the use of
an automobile covered under the policy and that Allstate had
not done so.[4] Finally, the plaintiff alleged that it was
due payment for its towing services as a third-party
beneficiary pursuant to the insurance policy and that
Allstate had failed to pay the plaintiff.
On
August 22, 2017, Allstate moved to dismiss the third count of
the plaintiffs operative complaint. Allstate argued that the
plaintiff was not a third-party beneficiary of its insurance
policy issued to Kevin E. Kohn. Allstate reasoned, therefore,
that the plaintiff lacked standing. In support of this
motion, Allstate relied on the judgment rendered by the
court, Truglia, J., in Hilario's Truck
Center, LLC v. Rinaldi, Superior Court, judicial
district of Danbury, Docket No. CV-16-6019558-S (October 17,
2016), aff d, 183 Conn.App. 597, 193 A.3d 683, cert, denied,
330 Conn. 925, 194 A.3d 776 (2018).[5]
On
December 18, 2017, the court granted Allstate's August
22, 2017 motion to dismiss, stating: "Granted. The court
adopts Judge Truglia's ruling in . . . Hilario's
Truck Center, LLC v. [Rinaldi, supra, Superior
Court, Docket No. CV-16-6019558-S]." This appeal
followed.
In
Hilario's Truck Center, LLC v. Rinaldi, 183
Conn.App. 597, 598, 193 A.3d 683, cert, denied, 330 Conn.
925, 194 A.3d 776 (2018), this court specifically held that,
under nearly identical circumstances, a towing company is not
an intended third-party beneficiary of an automobile
insurance policy between an insurance company and the
insured.[6] This court noted that "[a] person or
entity that is not a named insured under an insurance policy
and who does not qualify, at least arguably, as a third-party
beneficiary, lacks standing to bring a direct action against
the insurer." Id., 603-604. Additionally, this
court stated that "the fact that a person is a
foreseeable beneficiary of a contract is not sufficient for
him to claim rights as a [third-party] beneficiary."
(Internal quotation marks omitted.) Id., 608.
Ultimately, this court concluded that neither the language of
the insurance contract nor public policy supported the claim
that a towing company, under such circumstances, was a
third-party beneficiary of an automobile insurance contract.
Id., 606-12. As a result, the towing company lacked
standing to maintain a direct action against the insurance
company. Id., 612.
In its
appellate brief in the present case, the plaintiff failed to
mention, distinguish, or address in any way Hilario's
Truck Center, LLC v. Rinaldi, supra, Superior Court,
Docket No. CV-16-6019558-S, which served as the basis of the
decision of the trial court to grant the defendant's
motion to dismiss in the present case. Additionally, the
plaintiff overlooked this court's opinion in
Hilario's Truck Center, LLC v. Rinaldi,
supra, 183 Conn.App. 597, which was issued two months
prior to the filing of the plaintiffs appellate
brief. The plaintiff did not file a reply brief nor did it
provide any notice pursuant to Practice Book § 67-10
addressing the Rinaldi case.[7] As stated succinctly in the
defendant's ...