Opinion
CV156025338
10-25-2017
Michael Cholewa et ux v. Robert G. Hill, Sr. dba Star Cleaners et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE ARGONAUT INSURANCE COMPANY'S MOTION TO STRIKE (#129) AND NATIONWIDE INSURANCE COMPANY'S MOTION TO DISMISS (#131)
Timothy D. Bates, J.
FACTS
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, Lake Road, and Star Cleaners.
Counts one, two, three, four, five, and six allege negligence, trespass, private nuisance, liability under General Statutes § 22a-452, liability under General Statutes § 22a-16, and negligence per se, respectively, against Hill.
Counts seven, eight, nine, ten, eleven, and twelve allege negligence, trespass, private nuisance, liability under General Statutes § 22a-452, liability under General Statutes § 22a-16, and negligence per se, respectively, against Lake Road.
Counts thirteen, fourteen, fifteen, sixteen, seventeen, and eighteen allege negligence, trespass, private nuisance, liability under General Statutes § 22a-452, liability under General Statutes § 22a-16, and negligence per se, respectively, against Star Cleaners.
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.
ANALYSIS
I
ARGONAUT'S MOTION TO STRIKE
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, 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).
General Statutes § 52-29(a) provides in relevant part: " The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed . . ."
" [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). Specifically, Practice Book § 17-55 provides that " [a] declaratory judgment action may be maintained if . . . (1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure."
The procedural context of Buxton involved demurrers to a complaint for declaratory relief that were sustained by the trial court. " The motion to strike . . . replaced the demurrer in our practice." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 127 Conn.App. 606, 617 n.10, 15 A.3d 1131 (2011), aff'd, 308 Conn. 338, 63 A.3d 940 (2013). " The purpose and scope of a motion to strike are identical to those of a demurrer under the old rules of practice . . ." (Citation omitted; internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 283, 449 A.2d 986 (1982).
As discussed previously, in support of its claim that count twenty is procedurally improper, Argonaut argues that the plaintiffs do not have a statutory right to bring a direct cause of action against it, and the plaintiffs are not third-party beneficiaries of the Argonaut policy. These arguments bear on the condition precedent set forth in Practice Book § 17-55(1), i.e., whether " [t]he party seeking the declaratory judgment has an interest . . . by reason of danger of loss or of uncertainty as to the party's rights or other jural relations . . ." (Emphasis added.) The issue, then, is whether, under the facts alleged in count twenty of the complaint, the plaintiffs have some legal relationship to--or right in--the Argonaut policy that gives rise to a definite interest in enforcing the provision of the Argonaut policy that allegedly requires Argonaut to defend and indemnify Hill.
The following legal principles inform the analysis of this issue. " [A]n insurance policy is a contract . . ." (Internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 255 Conn. 295, 305, 765 A.2d 891 (2001). " [T]he obligation of contracts is limited to the parties making them, and, ordinarily, only those who are parties to contracts are liable for their breach." (Internal quotation marks omitted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 797, 17 A.3d 40 (2011). Thus, " one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract . . ." (Internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003).
At the same time, General Statutes § 38a-321, Connecticut's so-called direct action statute, " protects those injured by judgment proof insureds, by subrogating the injured party or judgment creditor to the rights of the assured against the insurer." (Emphasis added.) Brown v. Employer's Reinsurance Corp., 206 Conn. 668, 672, 539 A.2d 138 (1988). " In its simplest form, subrogation allows a party who has paid a debt to step into the shoes of another (usually the debtee) to assume his or her legal rights against a third party to prevent that party's unjust enrichment." (Internal quotation marks omitted.) Fireman's Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc., 309 Conn. 449, 455, 72 A.3d 36 (2013). Indeed, the purpose of § 38a-321 " is to give the injured person the same rights under the policy as the assured . . ." (Emphasis added; internal quotation marks omitted.) Verdon v. Transamerica Ins. Co., 187 Conn. 363, 369, 446 A.2d 3 (1982). Under § 38a-321, " [t]he injured party, who steps into the shoes of the insured, thus has the same rights as the insured-- i.e., obtains no different or greater rights against the insurer than the insured possesses and is equally subject to any defense the insurer may have against the assured under the policy." (Emphasis in original; internal quotation marks omitted.) Tucker v. American International Group, Inc., 745 F.Supp.2d 53, 59 (D.Conn. 2010) (applying Connecticut law).
General Statutes § 38a-321 provides in relevant part: " Upon the recovery of a final judgment against any person, firm or corporation by any person . . . for loss or damage on account of bodily injury . . . or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment."
In the present case, the plaintiffs have not alleged in count twenty that they are parties to the Argonaut policy. Therefore, in light of the principles discussed in the preceding paragraphs, for the plaintiffs to have a legal relationship to, or right in, the Argonaut policy, they must allege that they are third-party beneficiaries of the Argonaut policy, and/or they fall within the ambit of § 38a-321. If the plaintiffs have sufficiently alleged that they are third-party beneficiaries of the Argonaut policy, they would, under the facts of the present case, have contractual rights in the Argonaut policy. On the other hand, if the plaintiffs have alleged sufficient facts to invoke § 38a-321, they would, under the facts of the present case, have statutory rights to subrogation with respect to Hall's contractual interests in the Argonaut policy. The issues of (A) whether the plaintiffs are third-party beneficiaries of the Argonaut policy, and (B) whether they are within the scope of § 38a-321, are addressed in turn.
A
Contract Rights as Third-Party Beneficiaries
The following additional legal principles are relevant to the determination of whether the plaintiffs are third-party beneficiaries of the Argonaut policy. " The third-party beneficiary doctrine provides that [a] third-party beneficiary may enforce a contractual obligation without being in privity with the actual parties to the contract . . . Therefore, a third party beneficiary who is not a named obligee in a given contract may sue the obligor for breach." (Internal quotation marks omitted.) Wykeham Rise, LLC v. Federer, 305 Conn. 448, 473, 52 A.3d 702 (2012). " [A] third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party." Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981).
" [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties." (Internal quotation marks omitted.) Golek v. Saint Mary's Hospital, Inc., 133 Conn.App. 182, 199, 34 A.3d 452 (2012). " [T]he mere fact that a contract of liability insurance exists between the tortfeasor and insurance company does not somehow make the injured party a third-party beneficiary to the contract. While there is [little] appellate guidance on third-party beneficiary status as it impacts insurance parties, there are unreported Superior Court cases which carefully analyze those issues. They conclude that an injured party is not, without more, a third-party beneficiary of the insurance contract between a tortfeasor and the insurance company." (Internal quotation marks omitted.) Alexander v. W.F. Shuck Petroleum Co., Superior Court, judicial district of New Britain, Docket No. CV-08-5010050-S (August 3, 2009, Tanzer, J.) (48 Conn. L. Rptr. 365, 367-68, ). " The mere fact that the third party will receive a benefit if the insurer fulfills its contractual obligations to the insured does not make the third-party claimant a third-party beneficiary." Chapell v. Larosa, Superior Court, judicial district of New London, Docket No. CV-99-0552801-S (January 5, 2001, Corradino, J.) (28 Conn. L. Rptr. 683, 685, ).
Applying these principles to the present case, any benefit that the plaintiffs would derive from Argonaut indemnifying and defending Hill is a mere fortuitous consequence of performance under the Argonaut policy. Count twenty contains no allegations regarding (i) express terms in the Argonaut policy that could evidence an intent on the part of Hill and Argonaut to provide a contractual benefit to the plaintiffs, (ii) circumstances surrounding the execution of the Argonaut policy that could evidence such an intent on the part of Hill and Argonaut, and/or (iii) any other relevant circumstances that could evidence an intent on the part of Hill and Argonaut to bestow a contractual benefit on the plaintiffs. Therefore, the plaintiffs have insufficiently alleged that they are third-party beneficiaries of the Argonaut policy.
B
Subrogation Rights under the Direct Action Statute
The following additional legal principles are relevant as to whether the plaintiffs are within the scope of § 38a-321. Section 38a-321 provides that " where a plaintiff obtains a judgment in its favor against an insured tortfeasor and the tortfeasor does not satisfy the judgment within thirty days therefrom, the plaintiff is subrogated to the rights of the tortfeasor as against the insurer to the same extent as if the insured had satisfied the judgment. Thus, the plaintiff is permitted by law to proceed directly against such insurer whether the policy at issue is one of indemnity or liability." Reddy v. New Hampshire Ins. Co., 28 Conn.App. 145, 154, 612 A.2d 64 (1992). Our Supreme Court has held that " [t]he three requisites of a cause of action under this statute are (1) that the plaintiff has recovered a final judgment; (2) that the judgment is against a person who was insured by the defendant against liability on it; and (3) that the judgment remains unsatisfied." Skut v. Hartford Accident & Indemnity Co., 142 Conn. 388, 393, 114 A.2d 681 (1955). " Connecticut courts have thus consistently held that the recovery of a final judgment is a necessary prerequisite to a cause of action under [§ ]38a-321." (Internal quotation marks omitted.) Tucker v. American International Group, Inc., supra, 745 F.Supp.2d 59.
Applying these principles to the present case, the plaintiffs have not alleged in count twenty that they have obtained a final judgment against Hill on any of the tort and/or statutory claims asserted against him. See footnote 1 of this memorandum. Thus, the first element under § 38a-321 remains unsatisfied. Consequently, the plaintiffs have insufficiently alleged that they fall within the ambit of § 38a-321. Therefore, under the facts of the present case, they do not have statutory rights to be subrogated to Hill's contractual interests in the Argonaut policy.
On the basis of the foregoing, under the facts alleged in count twenty of the complaint, the plaintiffs are neither third-party beneficiaries of the Argonaut policy nor are they are within the scope of § 38a-321. Thus, the plaintiffs have insufficiently alleged that they have some legal relationship to--or right in--the Argonaut policy that gives rise to a definite interest in enforcing the provision of the Argonaut policy that allegedly requires Argonaut to defend and indemnify Hill. Accordingly, the allegations of count twenty are insufficient to satisfy the prerequisite set forth in Practice Book § 17-55(1), and, therefore, count twenty is procedurally improper.
II
NATIONWIDE'S MOTION TO DISMISS
The procedural standard and fundamental principles that govern motions to dismiss for lack of subject matter jurisdiction are well settled. " [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " 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." (Internal quotation marks omitted.) Mangiafico v. Farmington, 173 Conn.App. 178, 187-88, 163 A.3d 631 (2017). " Where, however . . . the 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." (Internal quotation marks omitted.) Bagg v. Thompson, 114 Conn.App. 30, 38, 968 A.2d 468 (2009).
" Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " Subject matter jurisdiction does not rest on the viability of the claims that a court is asked to adjudicate." Olympus Healthcare Group, Inc. v. Muller, 88 Conn.App. 296, 300, 870 A.2d 1091 (2005). Rather, " [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented to it. It exists if the court has the power to hear and determine cases of the general class to which the particular proceeding belongs." New England Retail Properties, Inc. v. Maturo, 102 Conn.App. 476, 481, 925 A.2d 1151, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). " 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.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
Nationwide claims that the court should grant its motion to dismiss because subject matter jurisdiction is lacking with respect to count nineteen of the plaintiffs' complaint. In support of this claim, Nationwide argues that count nineteen is nonjusticiable. Specifically, Nationwide argues that count nineteen is nonjusticiable because the plaintiffs lack standing to seek enforcement of the Nationwide policy, to which they are not parties. Nationwide further argues that count nineteen is nonjusticiable on the ground that any interest that the plaintiffs might have in enforcing the Nationwide policy by virtue of the direct action statute is unripe because they have not secured a final judgment against Star Cleaners.
The plaintiffs counter by arguing that count nineteen is justiciable because they have alleged that Nationwide was the insurer of Star Cleaners under the Nationwide policy and that Nationwide has refused to defend Star Cleaners in the present case.
The following legal principles guide the discussion of Nationwide's claim. " It is well settled that our courts may not render advisory opinions . . . Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable." (Internal quotation marks omitted.) Forcier v. Sunnydale Developers, LLC, 84 Conn.App. 858, 865, 856 A.2d 416 (2004). " The general rule is that a case is justiciable if it is capable of resolution on the merits by judicial action." (Internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn.App. 323, 336, 958 A.2d 1283 (2008). " [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Weiner v. Clinton, 100 Conn.App. 753, 757, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007). " A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013).
" [A]n action for a declaratory judgment may be employed only in solving a justiciable controversy." Liebeskind v. Waterbury, 142 Conn. 155, 158, 112 A.2d 208 (1955). " Put differently, an action for a declaratory judgment, valuable as it has become in modern practice, is not a procedural panacea for use on all occasions . . . In providing statutory authority for courts to grant declaratory relief, the legislature did not intend to broaden their function so as to include issues which would not be such as could be determined by the courts in ordinary actions." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., supra, 312 Conn. 728. " One type of controversy to which our declaratory judgment statute often has been applied is a dispute over rights and liabilities under an insurance policy." New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 748, 36 A.3d 224 (2012).
In the present case, the issue is whether the plaintiffs' claim for a declaratory judgment regarding Nationwide's alleged duty to defend and indemnify Star Cleaners is justiciable under the facts alleged in count nineteen of the complaint. With respect to this issue, it is important to recognize that " a declaratory judgment action addressing an insurer's duty to defend raises different justiciability concerns than a declaratory judgment action addressing the duty to indemnify . . . [T]here is an important practical difference between the two duties." State Farm Fire & Casualty Co. v. Bullock, Superior Court, judicial district of New Haven, Docket No. 387111 (May 30, 1997, Blue, J.) (19 Conn. L. Rptr. 599, 601, ). " [T]he duty to defend is broader than the duty to indemnify." Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 805, 67 A.3d 961 (2013). " [A]n insurer's duty to defend, being much broader in scope and application than its duty to indemnify, is determined by reference to the allegations contained in the [underlying] complaint . . . The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage . . . It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint . . . In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case." (Citations omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004). Accordingly, the justiciability of the plaintiffs' declaratory judgment claim regarding Nationwide's alleged duty to (A) indemnify, as well as (B) defend, Star Cleaners are addressed in turn.
A
Declaratory Judgment Claim as to the Duty to Indemnify
With respect to the justiciability of the plaintiffs' declaratory judgment claim--to the extent that it addresses Nationwide's alleged duty to indemnify Star Cleaners--the following principles concerning ripeness are relevant. " Ripeness is a justiciability doctrine, which implicates the court's subject matter jurisdiction." (Internal quotation marks omitted.) Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 296, 975 A.2d 715 (2009). Under the doctrine of ripeness, " an action cannot be prosecuted unless and until an actual issue is in dispute between the parties." Bingham v. Dept. of Public Works, 51 Conn.Supp. 590, 599, 16 A.3d 865 (2009), aff'd, 127 Conn.App. 461, 15 A.3d 213, cert. denied, 301 Conn. 906, 17 A.3d 1045 (2011). In this regard, " ripeness is peculiarly a question of timing . . ." Labbe v. Hartford Pension Commission, 239 Conn. 168, 184, 682 A.2d 490 (1996). " The purpose of the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . ." (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, supra, 598. " Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86-87, 952 A.2d 1 (2008).
In Bingham v. Dept. of Public Works, 127 Conn.App. 461, 464, 15 A.3d 213, cert. denied, 301 Conn. 906, 17 A.3d 1045 (2011), the Appellate Court adopted the memorandum of decision of the trial court, Sheldon, J., as a statement of, inter alia, the relevant legal principles regarding standing, mootness, and ripeness.
A declaratory judgment claim that is brought by an injured third party against a wrongdoer's insurer is unripe where the third party has also brought claims for relief against the wrongdoer--but they have not been adjudicated--and the declaratory judgment sought concerns the insurer's contractual obligation to indemnify the wrongdoer for such claims. See Hamilton v. United Services Automobile Ass'n, 115 Conn.App. 774, 782-86, 974 A.2d 774, cert. denied, 293 Conn. 924, 980 A.2d 910 (2009). In Hamilton, the conservator of the estate of a sexual assault victim (conservator) brought an action against the perpetrator for damages (tort action). Id., 776. The conservator subsequently commenced an action against the homeowners insurer of the perpetrator (insurer) pursuant to Practice Book § 17-54 et seq. (declaratory judgment action), seeking declaratory relief that the insurer was contractually obligated to defend and indemnify the perpetrator in the tort action. Id., 776-77. The tort action was then stayed. Id., 776 n.3. In the declaratory judgment action, the trial court granted the insurer's motion to dismiss for lack of subject matter jurisdiction. Id., 779. The conservator appealed to the Appellate Court, which focused solely on the insurer's duty to indemnify. See id., 777 n.5. The Appellate Court held that " [the] declaratory judgment action [was] not ripe for adjudication because any claim that the [conservator] [might] have [had] against the [insurer] [was] contingent on [the conservator] prevailing in the [tort] action, which [had] not yet been adjudicated." Id., 782. " Until there [had] been a judicial determination that [the perpetrator] [was] liable to the [conservator], the question of whether the [insurer] [was] obligated to provide insurance coverage in [the] declaratory judgment action [was] a hypothetical one." Id., 782-83.
" Ordinarily, a cause of action for indemnification must await a final judgment against the defendant." Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 148, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000). " The logic and rationale underlying our indemnity case law are based on the premise that an action for indemnification is one in which one party seeks reimbursement from another party for losses incurred in connection with the first party's liability to a third party." Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 148, 810 A.2d 259 (2002).
In light of foregoing case law and principles, the declaratory judgment claim regarding Nationwide's alleged duty to indemnify Star Cleaners hinges entirely on the plaintiffs' ability to successfully secure a judgment against Star Cleaners on any of the claims alleged against it. See footnote 3 of this memorandum. Moreover, considering the fact that the evidence and verdict regarding counts thirteen through eighteen are unknown because they have yet to be tried, it is equally likely that the plaintiffs' claims against Star Cleaners can either succeed or fail. Thus, the issue of whether Nationwide is contractually obligated to indemnify Star Cleaners for such claims is--like in Hamilton --hypothetical. Accordingly, the plaintiffs' declaratory judgment claim regarding Nationwide's alleged duty to indemnify Star Cleaners is not ripe for adjudication, and, therefore, nonjusticiable.
B
Declaratory Judgment Claim as to the Duty to Defend
With respect to the justiciability of the plaintiffs' declaratory judgment claim--to the extent that it addresses Nationwide's alleged duty to defend Star Cleaners--the following principles concerning standing are relevant. " A court does not have subject matter jurisdiction to hear a matter unless the plaintiff has standing to bring the action." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Thompson, 163 Conn.App. 827, 831, 136 A.3d 1277 (2016). " Standing is the legal right to set judicial machinery in motion." (Internal quotation marks omitted.) Murphy v. Stamford, 115 Conn.App. 675, 677, 974 A.2d 68, cert. denied, 294 Conn. 901, 982 A.2d 645 (2009). " One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn.App. 578, 581, 823 A.2d 1271 (2003).
" [I]t is a basic principle of our law . . . that [a] [plaintiff] must have standing in order for a court to have jurisdiction to render a declaratory judgment." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 224, 105 A.3d 210 (2014). " The question of standing [to pursue a declaratory judgment] is essentially one of aggrievement." (Internal quotation marks omitted.) New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn.App. 585, 593, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). " Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . . Statutory aggrievement . . . exists by legislative fiat . . . In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Burton v. Connecticut Siting Council, 161 Conn.App. 329, 336, 127 A.3d 1066 (2015), cert. denied, 320 Conn. 925, 133 A.3d 459 (2016).
In the present case, for the plaintiffs to have standing to bring a declaratory judgment claim regarding Nationwide's alleged duty to defend Star Cleaners, they must be either classically or statutorily aggrieved by Nationwide's alleged failure to defend Star Cleaners in the present case. If, under the facts alleged in count nineteen of the complaint, the plaintiffs are neither classically or statutorily aggrieved, their declaratory claim regarding Nationwide's alleged duty to defend Star Cleaners is nonjusticiable. The issues of (1) classical aggrievement, as well as, (2) statutory aggrievement, are addressed in turn.
1
Classical Aggrievement
The following additional legal principles are relevant to whether the plaintiffs are classically aggrieved. " A party pursuing declaratory relief must . . . demonstrate . . . a justiciable right in the controversy sought to be resolved, that is, contract, property or personal rights . . . as such will be affected by the [court's] decision . . . A party without a justiciable right in the matter sought to be adjudicated lacks standing to raise the matter in a declaratory judgment action." (Internal quotation marks omitted.) Emerick v. Commissioner of Public Health, 147 Conn.App. 292, 297, 81 A.3d 1217 (2013), cert. denied, 311 Conn. 936, 88 A.3d 551 (2014). " It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract . . . Under this general proposition, if the plaintiff is neither a party to, nor a contemplated beneficiary of, [the] agreement, she lacks standing to bring her claim for breach of [contract]." (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 401, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). " This principle applies with equal force to insurance contracts." Wilcox v. Webster Ins., Inc., 294 Conn. 206, 215, 982 A.2d 1053 (2009).
Here, for the same reasons discussed in part I A of this memorandum, the plaintiffs are not third-party beneficiaries of the Nationwide policy. Thus, under the facts of the present case, the plaintiffs do not have contractual rights in the Nationwide policy. As a result, Nationwide's alleged decision to not defend Star Cleaners in the present case could not have--from a contractual perspective--affected the plaintiffs. Accordingly, the plaintiffs are not classically aggrieved.
2
Statutory Aggrievement
The following additional legal principles are relevant to whether the plaintiffs are statutorily aggrieved. Section 38a-321 " does not merely enumerate the elements of a cause of action, but provides the basis on which standing is conferred." Gates v. Government Employees Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-06-5004852-S, (April 18, 2008, Cosgrove, J.); accord Tucker v. American International Group, Inc., 936 F.Supp.2d 1, 9 (D.Conn. 2013). Thus, the three elements of standing under § 38a-321 " are (1) that the plaintiff has recovered a final judgment; (2) that the judgment is against a person who was insured by the defendant against liability on it; and (3) that the judgment remains unsatisfied." Skut v. Hartford Accident & Indemnity Co., supra, 142 Conn. 393. Here, the plaintiffs have not alleged in count nineteen that they have obtained a final judgment against Star Cleaners on any of the claims that they have asserted against it. See footnote 3 of this memorandum. Thus, under the facts of the present case, the first requirement to have standing under § 38a-321 is not satisfied. Accordingly, the plaintiffs are not statutorily aggrieved.
On the basis of the foregoing, under the facts alleged in count nineteen of the complaint, the plaintiffs are neither classically aggrieved as thirdparty beneficiaries of the Argonaut policy nor are they statutorily aggrieved under § 38a-321. Thus, the plaintiffs have insufficiently alleged that they have standing to bring a declaratory judgment claim regarding Nationwide's alleged duty to defend Star Cleaners. Moreover, under the facts alleged in count nineteen of the complaint, the declaratory judgment claim regarding Nationwide's alleged duty to indemnify Star Cleaners hinges entirely on the plaintiffs' ability to successfully secure a judgment against Star Cleaners. Therefore, the plaintiffs' declaratory judgment claim--to the extent that it addresses Nationwide's alleged duty to indemnify Star Cleaners--is unripe for adjudication. Accordingly, count nineteen is nonjusticiable, and, as a result, the court lacks subject matter jurisdiction over it.
CONCLUSION
For the reasons set forth above, Argonaut's motion to strike and Nationwide's motion to dismiss are both granted.