Hilario Truck Center, LLC v. Kohn
Hilario Truck Center, LLC v. Kohn
Opinion
*444 The plaintiff, Hilario Truck Center, LLC, appeals from the judgment of dismissal of the third count of its operative complaint following the granting of the motion to dismiss filed by the defendant Allstate Insurance Company (Allstate). 1 The plaintiff argues that the court erred when it concluded that the *445 plaintiff lacked standing to bring a claim as a third-party beneficiary against Allstate pursuant to an automobile insurance policy issued to the defendant Kevin E. Kohn. We affirm the judgment of the trial court.
The plaintiff commenced the present action in October, 2015. In its operative complaint, the plaintiff alleged the following facts. 2 On October 23, 2014, the *680 defendant Kevin S. Kohn was operating a 1995 Buick in Newtown. The vehicle, owned by his father, Kevin E. Kohn, swerved off the road and came to rest on the property of Cliff Beers and Maryellen Beers. Kevin E. Kohn called the plaintiff to remove the vehicle from the property and tow the vehicle to its facility. The plaintiff successfully removed the vehicle from the Beers' property.
The plaintiff filed a three count complaint against Kevin S. Kohn, Kevin E. Kohn and Allstate. The first and second counts, sounding in breach of contract and unjust enrichment, were directed against Kevin S. Kohn and Kevin E. Kohn. 3 The third count, directed against Allstate, alleged that Kevin E. Kohn was the named insured of an insurance policy issued by Allstate. The plaintiff further claimed the insurance policy obligated Allstate to make payments to a third party for damages *446 arising from the use of an automobile covered under the policy and that Allstate had not done so. 4 Finally, the plaintiff alleged that it was due payment for its towing services as a third-party beneficiary pursuant to the insurance policy and that Allstate had failed to pay the plaintiff.
On August 22, 2017, Allstate moved to dismiss the third count of the plaintiff's operative complaint. Allstate argued that the plaintiff was not a third-party beneficiary of its insurance policy issued to Kevin E. Kohn. Allstate reasoned, therefore, that the plaintiff lacked standing. In support of this motion, Allstate relied on the judgment rendered by the court,
Truglia, J.
, in
Hilario's Truck Center, LLC
v.
Rinaldi
, Superior Court, judicial district of Danbury, Docket No. CV-16-6019558-S (October 17, 2016), aff'd,
On December 18, 2017, the court granted Allstate's August 22, 2017 motion to dismiss, stating: "Granted.
*447 The court adopts Judge Truglia's ruling in ... Hilario's Truck Center, LLC v. [ Rinaldi , supra, Superior Court, Docket No. CV-16-6019558-S]." This appeal followed.
*681
In
Hilario's Truck Center, LLC
v.
Rinaldi
,
In its appellate brief in the present case, the plaintiff failed to mention, distinguish, or address in any way
Hilario's Truck Center, LLC
v.
Rinaldi
, supra, Superior Court, Docket No. CV-16-6019558-S, which served as the basis of the decision of the trial court to grant the defendant's motion to dismiss in the present case. Additionally, the plaintiff overlooked this court's opinion in
*448
Hilario's Truck Center, LLC
v.
Rinaldi
, supra,
The judgment is affirmed.
In this opinion the other judges concurred.
In its complaint, the plaintiff also named Kevin S. Kohn and Kevin E. Kohn (Kohns) as defendants. On February 14, 2018, the court rendered judgment against the Kohns in the amount of $ 5000. The Kohns are not parties to this appeal.
"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.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... [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 dispute." (Internal quotation marks omitted.)
Ion Bank
v.
J.C.C. Custom Homes, LLC
,
The complaint alleged that the Kohns had failed to pay the plaintiff for its services in recovering the vehicle from the Beers' property and that, therefore, there had been a breach of contract, or, in the alternative, the Kohns had been unjustly enriched.
Specifically, the plaintiff alleged: "Allstate's third party liability insurance coverage policy with defendant, Kevin E. [Kohn] states: Allstate will pay for damages an insured person is legally obligated to pay because of bodily injury or property damage meaning ... 2. [D]amage to or destruction of property, including loss of use. Under these coverages, your policy protects an insured person from liability for damages on account of accidents arising out of the ownership, maintenance or use, loading or unloading of the auto we insure." (Emphasis omitted.)
In Hilario's Truck Center, LLC v. Rinaldi , supra, Superior Court, Docket No. CV-16-6019558-S, the defendant, Nationwide General Insurance Company (Nationwide), moved to dismiss counts one and three of the complaint filed by Hilario's Truck Center, LLC (Hilario's), on the basis of lack of standing. Specifically, the complaint had alleged that Hilario's was a third-party beneficiary of the insurance policy between Nationwide and the named defendant, Laura Rinaldi.
Judge Truglia rejected the arguments regarding Hilario's claim that it was a third-party beneficiary of the insurance policy. Accordingly, the court concluded that Hilario's lacked standing and dismissed counts one and three of its complaint. Judge Truglia's memorandum of decision subsequently was affirmed by this court. See
Hilario's Truck Center, LLC
v.
Rinaldi
, supra,
The plaintiff in the present case was also the plaintiff in
Hilario's Truck Center, LLC
v.
Rinaldi
, supra,
The following colloquy occurred at oral argument before this court:
"[The Court]: I'm just curious why your brief doesn't even mention the case that was relied on by the trial court ... and affirmed by this court in 2018, [ Hilario's Truck Center, LLC v. Rinaldi , supra, Superior Court, Docket No. CV-16-6019558-S] it's a pertinent authority. Whether it's in your favor or not, it's pertinent authority.
"[The Plaintiff's Counsel]: No, no. I understand that. And I think it should have, I think it should have, Your Honor, that's my fault for not addressing it and it wasn't a conscious decision to not address it. I took the position that the facts [in] this case were different because it was a different contract, it was a different situation with a consensual tow rather than [a nonconsensual] tow."
At oral argument before this court, the plaintiff's counsel made efforts to distinguish the facts of the present case from those in
Hilario's Truck Center LLC
v.
Rinaldi
, supra,
Even if we were to consider the arguments raised by the plaintiff's counsel that the insurance policy in this case contains broader language when compared to the terms of the policy in Hilario's Truck Center, LLC v. Rinaldi , supra,183 Conn. App. at 597 ,193 A.3d 683 , and that a consensual tow occurred here, as opposed to a nonconsensual tow, we would not be persuaded that these differences warrant a different result.
Reference
- Full Case Name
- HILARIO TRUCK CENTER, LLC v. Kevin S. KOHN Et Al.
- Cited By
- 1 case
- Status
- Published