Cholewa v. Hill
| Decision Date | 25 October 2017 |
| Docket Number | CV156025338 |
| Court | Connecticut Superior Court |
| Parties | Michael Cholewa et ux v. Robert G. Hill, Sr. dba Star Cleaners et al |
UNPUBLISHED OPINION
The present action arises from a dispute between the plaintiffs Michael and Tracy Cholewa, and the defendants, Robert Hill Sr., doing business as Star Cleaners (Hill), Lake Road Plaza LLC (Lake Road), Star Cleaners of Bozrah, LLC (Star Cleaners), Nationwide Mutual Insurance Company (Nationwide), and Argonaut Insurance Company (Argonaut), regarding toxic substances that allegedly entered into the plaintiffs' water supply at 431 Salem Turnpike in Bozrah (property). On January 17, 2017, the plaintiffs filed a second amended complaint, which is the operative complaint, against the defendants. Counts one through eighteen allege common-law tort and statutory claims against Hill, [1] Lake Road, [2] and Star Cleaners.[3]
In counts one through eighteen of the complaint, the plaintiffs allege the following facts. The plaintiffs are the owners and residents of the property, which is adjacent to and/or near the Lake Road Plaza (plaza) at 435 Salem Turnpike in Bozrah. Lake Road, which is the owner of the plaza, is in the business of leasing space in the plaza to commercial tenants. Approximately twenty-five years ago, Lake Road leased space in the plaza to Hill and Star Cleaners. Since then, Hill and Star Cleaners have operated a dry cleaning business at that location.
In 2012, the Department of Energy and Environmental Protection (department) tested the water supply at the property. The testing revealed that the water supply contained multiple " chlorinated volatile organic compounds, " (VOCs) including perchloroethylene (PCE), which are harmful to human health and the environment. The department investigated the source of the VOCs, and in January 2013, the department concluded that they originated from the dry cleaning business of Hill and Star Cleaners. Indeed, according to the depositions of Hill and/or Star Cleaners introduced PCE into the septic system of their dry cleaning business by washing material that was contaminated with PCE in their bathroom sink. Consequently, the plaintiffs consumed the contaminated water and were forced to install a water filtration system.
Count nineteen, which incorporates by reference the allegations of count thirteen, alleges a declaratory judgment claim against Nationwide. In count nineteen, the plaintiffs allege that a policy of liability insurance exists between Nationwide and Star Cleaners (Nationwide policy), and, under such policy, Nationwide is required to defend and indemnify Star Cleaners in the present case, but Nationwide has declined to do so. The plaintiffs also allege that they have a " substantial legal and equitable interest" in enforcing the Nationwide policy insofar as they seek damages resulting from the wrongful conduct of Star Cleaners. The plaintiffs further allege that a substantial dispute exists as to whether the claims that they have alleged against Star Cleaners are covered by the Nationwide policy. See footnote 3 of this memorandum.
Count twenty, which incorporates by reference the allegations of count six, is a declaratory judgment claim against Argonaut. In count twenty, the plaintiffs allege that a policy of liability insurance exists between Argonaut and Hill (Argonaut policy), and, under such policy, Argonaut is required to defend and indemnify Hill in the present case, but Argonaut has declined to do so. The plaintiffs also allege that they have a " substantial legal and equitable interest" in enforcing the Argonaut policy insofar as they seek damages resulting from the wrongful conduct of Hill. The plaintiffs further state that a substantial dispute exists as to whether the claims that they have alleged against Hill are covered by the Argonaut policy. See footnote 1 of this memorandum.
The prayer for relief claims, inter alia, money damages and declaratory relief. Specifically, in paragraph 7 of the prayer for relief, the plaintiffs seek a declaratory judgment enforcing the provisions of the Nationwide policy so as to require Nationwide to defend and indemnify Star Cleaners in the present action. In paragraph 8 of the prayer for relief, the plaintiffs also seek a declaratory judgment enforcing the provisions of the Argonaut policy so as to require Argonaut to defend and indemnify Hill in the present case.
On April 7, 2017, Argonaut filed a motion to strike count twenty of the plaintiffs' complaint. The motion to strike was accompanied by a memorandum of law. That same day, Nationwide filed a motion to dismiss count nineteen of the plaintiffs' complaint for lack of subject matter jurisdiction. The motion to dismiss was accompanied by a memorandum of law. A copy of the Nationwide policy is attached to the motion to dismiss as exhibit A.
On July 7, 2017, the plaintiffs filed a memorandum of law in opposition to Nationwide's motion to dismiss. That same day, the plaintiffs also filed a memorandum of law in opposition to Argonaut's motion to strike. Oral argument on Argonaut's motion to strike and Nationwide's motion to dismiss were heard at short calendar on July 10, 2017.
The procedural standard that governs motions to strike is well settled. " The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 815 A.2d 1188 (2003). " The role of the trial court in ruling on a motion to strike is to examine the [complaint] construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In deciding upon a motion to strike . . . a trial court must take the facts to be those alleged in the complaint . . . and cannot be aided by the assumption of any facts not therein alleged." (Citations omitted; internal quotation marks omitted.) Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
Argonaut claims that the court should grant its motion to strike because count twenty of the plaintiffs' complaint is procedurally improper. In support of this claim, Argonaut argues that the plaintiffs have failed to allege that they secured a judgment against Hill, which the plaintiffs must do in order to bring a statutory cause of action directly against it. Argonaut further argues the plaintiffs can allege no set of facts under which they would be third-party beneficiaries of the Argonaut policy. Lastly, Argonaut argues that the issues of liability and insurance coverage for the same liability cannot be litigated in the same action because the two issues do not arise from the same transaction or occurrence.
The plaintiffs counter by arguing that they have sufficiently pled a cause of action against Argonaut because they have alleged that Argonaut was the insurer of Hill under the Argonaut policy and that Argonaut has denied the contractual obligation to provide insurance coverage to Hill in the present case. The plaintiffs further argue that the issue of whether Argonaut owes a duty to defend Hill is properly brought in the present case because it can be resolved as a matter of law by reference to the allegations of the plaintiffs' complaint.
The following legal principles guide the discussion of Argonaut's claim. " An action for declaratory judgment is a special proceeding under General Statutes § 52-29, [4] implemented by Practice Book § § 17-54 and 17-55." (Footnote in original.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 88 Conn.App. 471, 475, 869 A.2d 1254, cert. denied, 274 Conn. 903, 876 A.2d 11 (2005). " The purpose of a declaratory judgment action . . . is to secure an adjudication of rights [when] there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 726, 95 A.3d 1031 (2014). " In an action seeking a declaratory judgment, the sole function of the trial court is to ascertain the rights of the parties under existing. law." Middlebury v. Steinmann, 189 Conn. 710, 715, 458 A.2d 393 (1983).
" [W]hether a court should grant declaratory relief is properly decided by a motion to strike." Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 293, 596 A.2d 414 (1991). " A [motion] to [strike] a complaint for a declaratory judgment is proper when the facts alleged do not bring the case within the scope of the statute and rules relating to declaratory judgments." Buxton v. Ullman, 147 Conn. 48, 50, 156 A.2d 508 (1959).[5] Specifically, Practice Book § 17-55 provides that ...
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