982 A.2d 1053 (Conn. 2009), 18317, Wilcox v. Webster Ins., Inc.

Docket Nº:18317.
Citation:982 A.2d 1053, 294 Conn. 206
Opinion Judge:ZARELLA, J.
Party Name:David R. WILCOX et al. v. WEBSTER INSURANCE, INC., et al.
Attorney:Louis N. George, Simsbury, with whom was Jeffrey O. McDonald, for the appellants (named plaintiff et al.). Melicent B. Thompson, with whom was Aileen R. Wilson, Avon, for the appellee (defendant Acadia Insurance Company).
Judge Panel:ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.
Case Date:November 24, 2009
Court:Supreme Court of Connecticut

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982 A.2d 1053 (Conn. 2009)

294 Conn. 206

David R. WILCOX et al.

v.

WEBSTER INSURANCE, INC., et al.

No. 18317.

Supreme Court of Connecticut.

November 24, 2009

Argued Sept. 10, 2009.

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Louis N. George, Simsbury, with whom was Jeffrey O. McDonald, for the appellants (named plaintiff et al.).

Melicent B. Thompson, with whom was Aileen R. Wilson, Avon, for the appellee (defendant Acadia Insurance Company).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

ZARELLA, J.

[294 Conn. 208] The named plaintiff, David R. Wilcox, and the plaintiff Shaun A. Wilcox,1 appeal 2 from the trial court's dismissal of their claims against the defendant Acadia Insurance Company.3 The plaintiffs assert that

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the trial court improperly granted the defendant's motion to dismiss on the ground that the plaintiffs lacked standing.4 The defendant responds that the trial court properly concluded that the plaintiffs lacked [294 Conn. 209] standing and that the trial court's decision should be affirmed on the alternative ground that the plaintiffs' claims against the defendant are moot. We conclude that the plaintiffs have standing to bring their claims against the defendant and that the case is not moot. Accordingly, we reverse the decision of the trial court and remand the case with direction to deny the motion to dismiss and for further proceedings.

The record reveals the following relevant factual allegations and procedural history. Our statement of the facts is taken from the allegations in the revised complaint of July 26, 2007.5 Although the defendant disputes several of the material allegations, " [a] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion...." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009). When, as in the present case, a motion to dismiss " is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." Barde v. Board of Trustees of Regional Community Colleges, 207 Conn. 59, 62, 539 A.2d 1000 (1988).

David Wilcox was an owner and managing member of American Crushing and Recycling, LLC (American Crushing), and his son, Shaun Wilcox, also was an owner and member. On or Before September, 2004, David Wilcox contacted Webster Insurance, Inc. (Webster), [294 Conn. 210] an authorized agent of the defendant, to obtain insurance for himself and American Crushing, including liability coverage and umbrella coverage for motor vehicles used by American Crushing. In response to this inquiry, Webster obtained an automobile insurance policy (automobile policy) issued by the defendant with a policy period commencing on September 1, 2004, and ending on September 1, 2005. The automobile policy provided for $1 million of coverage for each accident or loss for liability involving any automobile,6 and the umbrella policy 7 provided an additional $2 million per accident. David Wilcox was a named insured under the policies,8 and Shaun Wilcox was insured under the terms of the policies, although not a named insured.

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On or Before January 3, 2005, an employee of American Crushing contacted Webster and requested that certain items of coverage under the automobile policy be suspended temporarily. On or Before March 17, 2005, David Wilcox or a representative of American Crushing contacted Webster and requested that such suspended coverage be reinstated. Webster, acting in its capacity as an authorized agent of the defendant, promised to reinstate coverage. Thereafter, David Wilcox requested a certificate of liability insurance from Webster and the defendant, which they subsequently produced. The certificate of liability insurance represented that $1 million of automobile liability coverage and $2 million in umbrella coverage was in force for " any auto...." David Wilcox made additional requests for and received identical certificates of liability insurance from Webster [294 Conn. 211] and the defendant on April 29, May 16, May 19, and May 20, 2005.

On July 29, 2005, a dump truck owned by American Crushing was involved in a motor vehicle accident in Avon. At the time of the accident, all of the premiums due on the policies had been paid. Following the accident, the plaintiffs requested that the defendant defend and indemnify them and American Crushing in connection with any liability or costs incurred as a result of the accident. The defendant did not immediately respond to the plaintiffs. The defendant subsequently denied that there was insurance coverage in effect for the dump truck on the date of the accident and has declined to defend or indemnify the plaintiffs for any potential civil liability that they face or have faced. The plaintiffs allege that, as a result of the defendant's denial of coverage and failure to defend and indemnify them, they have been exposed to civil liability for claims brought by the victims of the accident, or their estates, and have sustained damages including, but not limited to, loss of income and the costs of defending against criminal charges and civil actions.

On March 23, 2007, the plaintiffs filed their original complaint in the present case.9 The complaint alleges causes of action against the defendant for breach of contract, promissory estoppel, negligent misrepresentation, recklessness, and violations of the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. On May 10, 2007, the defendant filed a motion to dismiss the plaintiffs' claims. In its motion to dismiss, the defendant claimed, inter alia, that the court lacked subject matter jurisdiction over the plaintiffs' claims because the plaintiffs, [294 Conn. 212] as members of a limited liability company, lacked standing to assert claims of the limited liability company. The defendant further claimed that the right to assert insurance policy claims arising from the accident belonged exclusively to American Crushing. Following a hearing on the matter, the trial court agreed with the defendant and granted the motion to dismiss. In its October 25, 2007 memorandum of decision, the trial court determined that the relevant provisions of the Connecticut Limited Liability Company Act (act); 10 see General Statutes §§ 34-100

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through 34-242; were dispositive of the standing issue, and that the act did not permit the plaintiffs " to maintain an action on behalf of American Crushing." Accordingly, the trial court granted the defendant's motion and dismissed the claims. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first challenge the trial court's conclusion that they lacked standing to bring their claims against the defendant. Specifically, the plaintiffs claim that David Wilcox, as a named insured under the policies, and Shaun Wilcox, as an insured and third party beneficiary under the terms of the policies, have individual standing to assert their claims against the defendant and to enforce the terms of the policies. The plaintiffs further argue that they do not seek to enforce the rights of or to recover damages sustained by American Crushing. Rather, the plaintiffs claim that they seek to enforce [294 Conn. 213] their individual rights under the policies and to recover damages that they individually have sustained as a result of the defendant's refusal to defend and indemnify them for their individual liabilities stemming from the accident. The plaintiffs therefore argue that the trial court improperly concluded that they lacked standing in light of General Statutes § 34-134. 11 The defendant responds that the trial court properly applied § 34-134 to the plaintiffs' claims and concluded that the plaintiffs lacked standing because they have no individual interests in the policies that are distinct from American Crushing's interests and because the plaintiffs have not established that they have been injured in any manner not attributable to their status as owners and members of American Crushing. We agree with the plaintiffs.

" As a preliminary matter, we set forth the standard of review. 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.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the trial court's ultimate legal conclusion and resulting [decision to] grant ... the motion to dismiss will be de novo." (Internal quotation marks omitted.) Gerlt v. South Windsor, 284 Conn. 178, 188-89, 931 A.2d 907 (2007).

" The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31(a). [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the [294 Conn. 214] dispute." (Internal quotation marks omitted.) May v. Coffey, supra, 291 Conn. at 113, 967 A.2d 495. " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004). " Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, our...

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