Opinion
No. X01 CV-02-0172539-S
March 12, 2004
MEMORANDUM OF DECISION
Succinctly stated, this case arises out of a dispute over the operation of two (2) contractual relationships between insurance professionals. The first ten (10) counts arise out of the contractual relationship between defendant New Hampshire Insurance Company (NHIC) and plaintiff Connecticut Automobile Coverage, Inc. (CAC). This shall herein be referred to as the CAC claim. The contract between them is a general agency contract. The dispute centers upon alleged changes in the terms of the agreement, its later termination by NHIC, and the rescission of that termination followed by amendment of the contract provisions. Multiple causes of action are alleged; the gravamen of these counts, however, is a breach of contract claim. As to these counts, there is no challenge to this court's exercise of jurisdiction.
Counts Eleven through Eighteen (1-18) focus upon a contract between Automobile Coverage, Inc. (ACI) and New York Insurance Company (NYIC) and shall herein be referred to as the ACI claim. Again, the dispute arises over NYIC's amendment of contract terms and termination of the agreement. At issue now is Paragraph 28 of the ACI Agreement which provides:
The venue for any action in law or equity between the parties shall be designated exclusively as the Supreme Court of the State of New York, County of New York (emphasis added). The parties consent to the jurisdiction of the Supreme Court of the State of New York for any action between the parties in law or equity.
No addendum to that contract amends that paragraph. By way of a Notice and Order dated December 17, 2003, the court raised the issue of venue sua sponte as regards the ACI contract and Counts Eleven-Eighteen and invited either a withdrawal of or an agreement to dismiss those counts or memoranda addressing whether the court should exercise jurisdiction in view of the contract's exclusive venue provision.
The plaintiff elected not to withdraw the counts and it argues the court should exercise jurisdiction because venue invokes personal jurisdiction and is waived if not asserted by a timely motion. Haigh v. Haigh, 50 Conn. App. 456, 465 (1998). ACI's position is that P.B. § 10-32 provides a claim of improper venue is waived if not raised by a motion to dismiss filed within thirty (30) days of an appearance. No motion to dismiss was filed following the defendant's appearance in April of 2002. The defendant argues that, despite not having previously filed a motion to dismiss (It requests its memorandum in response to the court's Notice and Order of December 17, 2003, be considered a motion to dismiss.), Counts Eleven — Eighteen must be dismissed to give effect to the clear expression of the parties' intent that all claims between them — whether in law or in equity — be adjudicated only in the Supreme Court of New York, County of New York. Relevant to all of the above is that this case was, on October 22, 2003, scheduled for trial on July 21, 2004, by Hodgson, J. and the parties have engaged in discovery with the expectation trial will commence on that date.
The court is mindful that, had the defendant filed a timely motion to dismiss, the present urgency would have been avoided. Curiously, however, the plaintiff makes no claim the court's declining to exercise jurisdiction would work an injustice or constitute a surprise nor could ACI claim surprise in view of the plaintiff's consent to a trial of any and all claims conducted only in New York; nor does ACI offer this court any rational explanation for the bringing of its suit in this state. It is clear the parties were represented by counsel with regard to the agreement and for the court to ignore what was unequivocally expressed in Paragraph 28 of their agreement when that term was never amended and when ACI advances no claim of surprise or injustice is for this court to re-write the parties' agreement for the sole reason ACI, represented by Connecticut counsel, preferred to bring the action here. Relevant is that the ACI contract's choice of law provision calls for the application of New York law and, thus, the venue provision is consistent and facilitates the reading of the agreement as a whole. Nor can the plaintiff claim the court's refusal to exercise jurisdiction disserves ACI because it would require the trial of the ACI claims in New York while the CAC claims have been pending in this state's CLD for two years because, as will next be discussed, CAC has withdrawn Counts One — Ten and has only recently brought a new action in federal court.
Enforcement of the exclusive venue provision is required under both New York and Connecticut law. See e.g., Boutari Son v. Attiki Importers and Distributors, Inc., 22 F.3d 51, 53 (2d Cir. 1994); Phoenix Leasing, Inc. v. Kosinski, 47 Conn. App. 650, 653 (1998); U.S. Trust Co. v. Bohart, 197 Conn. 34, 42 (1985). This conclusion furthers public policy concerns because the enforcement of parties' intent as expressed in a venue provision that they will submit to the jurisdiction of a particular tribunal promotes certainty and predictability in dispute resolution. Premium Risk Group, Inc. v. Legion Ins. Co., 741 N.Y.S.2d 563, 564 (N.Y.App.Ct. 2002).
A court may, in its discretion, interpret Practice Book rules liberally where a strict adherence to the rules would work a surprise or injustice. P.B. § 1-8. Further, our Supreme court has contemplated § 1-8 calls for the liberal construction of the 30-day filing deadline for a motion to dismiss as set out in § 10-30. See Pitchell v. City of Hartford, 247 Conn. 422, 432 (1999). See also cases cited at pp. 3-4 of the defendants' memorandum of January 12, 2004. There can be no injustice to requiring ACI to litigate in New York where, as here, its agreement requires the same and the proffer of no reasonable explanation for eschewing that provision in favor of commencing the action here can only suggest it is forum shopping. Under these circumstances, to require strict adherence to the technical pleading deadline of P.B. § 10-30 would elevate form while requiring the court to ignore the parties' intent regarding venue and to deprive the defendants a meaningful opportunity to be heard on this claim of lack of personal jurisdiction would be manifestly unjust in view of the contract provision venue be had "exclusively" in New York. Paragraph 28 of agreement. The prejudice to the defendants in not dismissing these counts is the denial of the right for which they bargained — the right to have all issues adjudicated by a New York court applying New York law.
The intent of the parties shall be given effect. Counts Eleven — Eighteen are dismissed.
Defendant NHIC has objected to CAC's withdrawal of the first ten (10) counts of the complaint. It argues that to permit the plaintiff to withdraw under the circumstances presented would deprive it of the substantive rights it has acquired by virtue of four (4) favorable rulings of Hodgson, J. to four (4) requests to revise it was "required" to file to obtain a separation of the claims asserted against NHIC and NYIC, the further right it obtained in the last filed complaint which accomplished the separation of those claims, and the right to a trial which was to have commenced on July 21, 2004. Having withdrawn those counts, the plaintiff brought suit in federal court by way of a complaint which it is asserted resurrects the infirmities of the original complaint filed here. Thus, the defendant argues, all of the work both it and the court had accomplished in arriving, after approximately two (2) years, at a complaint which can be addressed by way of a motion to strike (filed in November of 2003) has been for naught and they further claim the withdrawal of these counts followed by a new action in federal court is a classic example of forum shopping in an effort to avoid the multiple prior court rulings as well as a trial on those claims in July of 2004. Defendant further claims the result of the withdrawal is to revive a problem ridden complaint in a forum less conducive to the resolution of pleading deficiencies than is a state court. The defendant urges the court to void the withdrawal and restore the first ten (10) counts to the active docket so that trial is not unconscionably delayed. The plaintiff argues the basis of the defendant's pending motion to strike is the improper joinder of the counts pertaining to CAC with the counts pertaining to ACI, a result now avoided by virtue of CAC's claims having been here withdrawn.
The sole issue for this court is whether the plaintiff CAC is entitled to withdraw its causes of action. The law is that the plaintiff has an absolute and unconditional right to withdraw an action before commencement of a hearing on the merits and does not need the permission of the court for cause shown. Matey v. Waterbury, 24 Conn. App. 93, 95 (1991); C.G.S. § 52-80. Cause must be shown once a hearing on the merits has begun. There has been no hearing on the merits in this case. In Matey, however, the court stated it had "continuing jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but . . . it must first reinstate it on the docket before granting the relief sought." (Citation omitted). 24 Conn. App., at 97. There has not yet been a determination whether, as defendant claims, acceptance of the withdrawal of the subject counts deprives it of "vested rights." In point of fact, the plaintiff claims the complaint brought in federal court is generally faithful to the prior filed requests to revise, that the prior rulings of Hodgson, J. were also favorable to CAC, and that the defendant's participation in the discovery process has been less than diligent.
The basis for § 52-80 is the law of equity — that is, that there "must come a time in the history of all cases prosecuted to final judgment when the plaintiff loses the power to withdraw." Moriarty v. Mason, 47 Conn. 436, 438 (1880). This court is not sufficiently persuaded, however, that the plaintiff's sole impetus in withdrawing these counts and removing them to federal court is to avoid the untoward consequences of the defendant's claimed rulings on pleading motions and to avoid a July trial date when the alternative explanation — that it was to satisfy the defendant's claim of misjoinder (at a time when Counts Eleven — Eighteen pended) — is also plausible. Nor is the court persuaded the defendant's prior efforts have been for naught or that the machinery does not exist in federal court to expeditiously resolve whatever pleading problems are posed by the complaint there now pending. No prior hearing on the merits of any cause of action asserted in Counts One — Ten having transpired, the plaintiff is not required to seek prior approval of the withdrawal.
The defendant's request to restore those counts to the active docket is denied. All other counts having been dismissed, no action presently pends before this court.
Sheedy, J.