Hamilton v. United Services Auto. Ass'n, 29633.

• Court: Appellate Court of Connecticut
• Writing for the Court: Lavine
• Citation: 974 A.2d 774,115 Conn.App. 774
• Decision Date: 21 July 2009
• Docket Number: No. 29633.,29633.
• Parties: Patrice HAMILTON, Conservator (Estate of F)<SMALL><SUP>*</SUP></SMALL> v. UNITED SERVICES AUTOMOBILE ASSOCIATION.

974 A.2d 774 115 Conn.App. 774 Patrice HAMILTON, Conservator (Estate of F)^*
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION. No. 29633. Appellate Court of Connecticut. Argued February 5, 2009. Decided July 21, 2009.

[974 A.2d 776]

Paul A. Slager, with whom was Amanda R. Whitman, Stamford, for the appellant (plaintiff).

Joseph J. Arcata II, with whom were Charles A. Deluca and, on the brief, Catherine S. Nietzel, Stamford, for the appellee (defendant).

HARPER, LAVINE and HENNESSY, Js.

LAVINE, J.

115 Conn.App. 775

In this declaratory judgment action, the plaintiff, Patrice Hamilton, as conservator of the estate of the victim, F, appeals from the judgment of the trial court, Shaban, J., granting the motion to dismiss filed by the defendant, United Services Automobile Association.¹ On appeal, the plaintiff claims that the court improperly granted the defendant's motion to dismiss because (1) she has standing to bring the action, (2) the action is ripe for adjudication and (3) there are no alternative remedies. We conclude that the matter is not ripe for adjudication and, therefore, affirm the judgment of the trial court.²

In her amended complaint filed on September 12, 2007, the plaintiff sought a declaratory judgment pursuant to Practice Book § 17-54 et seq. She alleged that the defendant, an insurance company licensed to do business in Connecticut, had issued a homeowners liability insurance policy (policy) to John E. Thorson, providing coverage from August 25, 2001, through August 25, 2002. The defendant renewed the policy for subsequent periods of one year that ended on August 25, 2006. The defendant also issued an umbrella insurance

115 Conn.App. 776

policy to Thorson that was in effect from October 18, 2001, until September 21, 2006.

In addition, the amended complaint alleged that the plaintiff, as conservator of the victim's estate, had commenced a civil action against Thorson in the judicial district of Danbury, Hamilton v. Thorson, Superior Court, judicial district of Danbury, Docket No. CV-06-5001461-S, 2008 WL 2744900 (2008) (Thorson action), that is currently pending.³ The Thorson action alleges professional negligence and negligent infliction of emotional distress against Thorson and alleges that as a result of Thorson's negligence, the victim has suffered permanent and severe injuries. The amended complaint also alleges that the defendant has disclaimed coverage of the claims in the Thorson action and has refused to provide Thorson with a defense in that action. The plaintiff claims that the defendant has a duty to defend and to indemnify Thorson for the claims alleged against him in the Thorson action.

The amended complaint further alleges that the plaintiff, as the conservator of the victim's estate, has a legal or equitable interest by reason of the uncertainty of the defendant's rights and obligations with regard to the plaintiff's claims in the Thorson action and that there is an actual and

974 A.2d 777

substantial issue in dispute due to the uncertainty of the legal relations between the parties that requires settlement. Moreover, all parties having an interest in the subject matter of the declaratory judgment action have been served with the complaint and made a party to the action or have been given notice of it.⁴ The plaintiff also alleged that there is no other

115 Conn.App. 777

form of proceeding that can provide her with immediate redress. In her prayer for relief, the plaintiff alleged that the defendant has a duty to defend Thorson⁵ in the Thorson action and to indemnify Thorson in that action as well.

On October 26, 2007, the defendant filed a motion to dismiss the declaratory judgment action, claiming that the court lacked subject matter jurisdiction because (1) the plaintiff did not have standing to bring the action, (2) the claim was not yet ripe for adjudication and (3) the plaintiff has rights pursuant to General Statutes § 38a-321.⁶ The plaintiff objected to the motion to dismiss on November 30, 2007, expounding on the factual

115 Conn.App. 778

allegations in the Thorson action. In the Thorson action, the plaintiff alleged that Thorson, a licensed professional counselor, had treated the victim in his home for a variety of emotional and

974 A.2d 778

mental health issues. Thorson was negligent in his treatment of the victim between 2002 and 2005 because, the plaintiff alleged, he failed to maintain professional boundaries between himself and the victim and encouraged the victim to communicate with him via telephone and e-mail at all times of the day and night. Thorson allegedly cultivated the victim's trust and dependence on him, which allowed him to manipulate and to exploit the victim sexually over a period of years. As a result of Thorson's negligence and negligent infliction of emotional distress on the victim, the plaintiff alleged that the victim has suffered severe and permanent injuries.

In her objection to the motion to dismiss, the plaintiff stated that as a result of discovery in the Thorson action, she learned that her claims against Thorson potentially were covered by insurance policies issued to him by the defendant but that the defendant had disclaimed any duty to defend or to indemnify Thorson. "Because of the sensitive nature of the subjects involved in the [Thorson action], and the potential harm the discovery process, including being subject to deposition, may have on [the victim's] delicate mental state, [the] plaintiff wishes to determine whether there is insurance coverage for her claims before proceeding with the

115 Conn.App. 779

Thorson action]. If it is determined that no insurance coverage exists for [the] plaintiff's claims, [the] plaintiff may decide it is not in [the victim's] best interests to subject [her] to the emotional strain of litigating the underlying case, if [the victim] is unlikely to obtain any meaningful recovery due to a lack of insurance coverage." (Emphasis added.)

The court issued a memorandum of decision on February 1, 2008, granting the motion to dismiss. In its memorandum of decision, the court concluded that (1) although the defendant might be liable to pay the claim against Thorson, the amended complaint did not allege that the defendant and Thorson intended the defendant to assume a direct obligation to the plaintiff, and, therefore, she lacks standing to bring the action, (2) the action is not ripe because there has been no determination in the Thorson action that Thorson is liable to the plaintiff for professional negligence and negligent infliction of emotional distress, and (3) the plaintiff cannot avail herself of Thorson's rights under § 38-a-321 until a final judgment has been rendered in her favor in the Thorson action. The plaintiff appealed, claiming that the court improperly granted the defendant's motion to dismiss.

"Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. ..." Practice Book § 10-30.⁷ "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially

[115 Conn.App. 780

asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most

974 A.2d 779

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." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 750, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).

"Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.... If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings.... [A] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.... [W]here a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) ABB Automation, Inc. v. Zaharna, 77 Conn.App. 260, 263-64, 823 A.2d 340 (2003).

"A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003).

In its motion to dismiss, the defendant claimed, in part, that the plaintiff's declaratory judgment action

115 Conn.App. 781

was not ripe for adjudication. Our Supreme Court "has not defined expressly the precise relationship between ripeness and justiciability, [but] it is well settled in the federal courts that ripeness is one of several justiciability doctrines, including standing and mootness." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009). "An issue regarding justiciability ... must be resolved as a threshold matter because it implicates the court's subject matter jurisdiction...." (Internal quotation marks omitted.) Id.

Our Supreme Court has stated that a declaratory judgment action commenced under General Statutes § 52-29⁸ provides "a valuable tool by which litigants may resolve uncertainty of legal obligations.... The [declaratory judgment]...