Samelko v. Kingstone Ins. Co.
Samelko v. Kingstone Ins. Co.
Opinion of the Court
**251In this case, we must decide whether a Connecticut court may properly exercise personal jurisdiction over an out-of-state insurer whose only significant contacts with this state are the inclusion of Connecticut within the coverage territory of an automobile insurance policy and the occurrence of an automobile collision in Connecticut involving its insured. The defendant, Kingstone Insurance Company, a company domiciled in New York, contractually agreed to defend and indemnify its insured nationwide. After a vehicle driven by the insured collided in Connecticut with a vehicle driven by the plaintiffs, Jerzy and Sylvia **252Samelko, however, the defendant failed to defend its insured and failed to provide indemnity after a judgment was rendered against the insured for damages resulting from the collision. The plaintiffs were subrogated to the rights of the insured under the policy issued by the defendant pursuant to General Statutes § 38a-321
The following facts, which were alleged in the complaint or which the trial court found were not genuinely in dispute, are relevant to this appeal. The defendant issued a business automobile insurance policy covering a vehicle driven by Geraldo A. Cardozo (insured). The policy was written in New York at the defendant's principal place of business, and the vehicle was garaged in New York at that time. The defendant does not maintain any offices in Connecticut, was not licensed, at the time **253it issued the policy, to provide insurance in Connecticut, and did not direct or participate in any business transactions in Connecticut.
In consideration for paid premiums and adherence to the terms of the policy, the defendant agreed to provide its insured $100,000 of liability insurance for any one accident or loss. To be covered by the policy, however, the accident or loss must occur within the designated coverage territory of "[t]he United States of America ...." The policy obligates the defendant to indemnify its insured by "pay[ing] all sums an insured legally must pay as damages because of bodily injury or property damage ... caused by an accident ...." (Internal quotation marks omitted.) It also requires the defendant to defend its insured, stating that "[the defendant has] the right and duty to defend any insured against [an action] asking for such damages ...." (Internal quotation marks omitted.)
While this policy with nationwide coverage was in effect, the insured's vehicle collided with a vehicle occupied by the plaintiffs in Stamford, Connecticut. The plaintiffs each sustained bodily injury as a result of the collision, and the defendant's insured was found legally responsible after a default judgment was rendered against him. Samelko v. Cardozo , Superior Court, judicial district of Fairfield, Docket No. CV-09-5024762-S (March 14, 2013). The judgment was rendered against the insured for $126,839.93 in favor of Jerzy Samelko and for $10,852 in favor of Sylvia Samelko. Id.
The defendant received notice of the accident and the action brought against its insured, but the defendant failed to defend the insured and failed to indemnify him for the judgment rendered against him. The plaintiffs then brought this action against the defendant,
Although the plaintiffs are not parties to the insurance contract between the insured and the defendant, they brought this action under Connecticut's insurance subrogation statute, § 38a-321, which allows a party who has an unsatisfied judgment against an insured for bodily injury to step into the shoes of the insured and bring a claim under the insured's policy directly against the insurer. See footnote 1 of this opinion; see also Home Ins. Co. v. Aetna Life & Casualty Co. ,
The defendant moved to dismiss this action for lack of personal jurisdiction. The principal basis of the defendant's motion was that the defendant did not do business in Connecticut, and, thus, it would not be subject to the long arm statute and requiring it to defend this action in Connecticut would not comport with due process. Both parties undertook jurisdictional discovery, and the plaintiffs filed a brief in opposition to the motion to dismiss. The plaintiffs responded in relevant part that there was personal jurisdiction over the defendant because their claims "[arose] out of a contract to **255be performed in this state" pursuant to § 33-929 (f) (1) and (4).
The trial court granted the defendant's motion to dismiss, reasoning that "there is no evidence" and "no authority is provided" to support the plaintiffs' claims. Specifically, the court found that the plaintiffs had failed to meet their burden of providing evidence that the cause of action arose out of a contract to be performed in Connecticut. Instead, the trial court was persuaded by the fact that the insured resided in New York, "the vehicle ... was registered and garaged in New York," the insured "maintained his driver's license in New York," and "[t]he policy was sold, paid for and written in New York ...." In short, the court found that "there is no evidence the defendant ever had notice, or even an inkling, that its insured was living in Connecticut" for purposes of the due process analysis. The plaintiffs moved for reargument and reconsideration, which the trial court denied. The plaintiffs appealed to the Appellate Court, and this court transferred the appeal to itself. See General Statutes § 51-199 (c) ; Practice Book § 65-1.
The outcome of this appeal turns on whether the trial court had personal *748jurisdiction over the defendant, an out-of-state (foreign) corporation. "[A] court cannot render a judgment without first obtaining personal jurisdiction over the parties." Argent Mortgage Co., LLC v. Huertas ,
Ordinarily, the defendant has the burden to disprove personal jurisdiction. Cogswell v. American Transit Ins. Co. , supra,
"When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state [long arm] statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Kenny v. Banks ,
Applying this analysis in the present case, we agree with the plaintiffs that the defendant's particular agreement to defend and indemnify its insured establishes personal jurisdiction under Connecticut's corporate long arm statute, § 33-929 (f) (1),
I
We begin by examining the defendant's claim under our corporate long arm statute. Because the defendant is a foreign corporation that, at the time of the creation of the contract, had no formal presence *749in Connecticut, a Connecticut court may obtain personal jurisdiction over the defendant only if our long arm statute permits it. See Kenny v. Banks , supra,
Section 33-929 (f) (1) provides in relevant part that "[e]very foreign corporation shall be subject to suit in this state, by a resident of this state
We conclude that the phrase "to be performed" as used in § 33-929 (f) (1) refers to the performance that the parties contemplated in the contract, without regard to whether it has actually been performed.
In addition, because the plain language of the statute does not specify which party's performance must be considered, it makes no difference whether the insured, the defendant, or another party to the *750contract was required to perform in this state. Indeed, our case law and the decisions of the United States District Court for the District of Connecticut reflect that either the insured's or the defendant insurer's conduct can satisfy § 33-929 (f) (1). Bowman v. Grolsche Bierbrouwerij B.V. ,
With these principles in mind, we conclude that the contract in the present case contemplated performance by the defendant in Connecticut sufficient to bring it within our long arm statute. Whether the contract contemplates performance in Connecticut turns on "the totality of contacts which the defendant" obligates itself to have, or contemplates that it will have, in this forum on the basis of the agreed upon performance in the contract. Lombard Bros., Inc. v. General Asset Management Co. ,
The insurance policy, written by the defendant, obligated the defendant to "defend [its] insured against [an action] ... [or] settle any claim" resulting from an accident covered by the terms of the policy. In addition, the defendant must "pay all sums" arising from a settlement or verdict that the " 'insured' legally must pay" as a result of an injury to which the policy applies. These promises apply to any location within the coverage territory, which spans the United States. By requiring the defendant to provide a defense and indemnify the insured nationwide, the contract expressly contemplated the defendant's performance in Connecticut if its insured was involved in an accident here. The duty to provide a defense requires the engagement of counsel to undertake such tasks as interviewing and deposing Connecticut witnesses, meeting with opposing Connecticut counsel, and appearing in a Connecticut court-room. Indemnifying the insured could include reimbursing a Connecticut citizen injured in this state for damages suffered in this state. In other words, when the contract expressly contemplates providing a defense and indemnification in Connecticut, it anticipates a host of unavoidable performances in Connecticut.
These contemplated performances are much more than "incidental" to the contract, as defending and indemnifying the insured are the primary purposes of an insurance contract.
**262Lombard Bros., Inc. v. GeneralAsset Management Co. , supra,
Our analysis is consistent with the conclusions of other jurisdictions with similar statutory language. For example, in South Carolina, " 'to be performed,' " as used in that state's long arm statute, means all parties knew that at least part of the performance was to take place in the state. Colite Industries, Inc. v. G.W. Murphy Construction Co. ,
**263in that state's long arm statute means that the defendant had at least some duties that had to be performed *752in the forum. J. R. Stripling v. Jordan Production Co., LLC ,
The defendant asserts that it is "simply untrue" that the contract was "to be performed" in Connecticut. Tellingly, the defendant cites primarily to only one case to support his assertion, Brown v. Atlantic Casualty Ins. Co. , Superior Court, judicial district of New Haven, Docket No. CV-98-0415999-S (November 13, 1998) (
Uninsured and underinsured motorist coverage is fundamentally different from liability coverage because of the location of the performance due under the contract. We agree with the defendant that, most likely, an insurer's promise under an uninsured motorist policy **264is not "to be performed" under § 33-929 (f) (1) in the state where an accident occurs because that type of policy promises only to make the insured whole. Therefore, it does not necessarily require the insurer to perform in the foreign jurisdiction; performance can take place where the insured resides or where the insurer is domiciled. Put another way, the nature of an uninsured motorist claim eliminates much, if not all, of the contemplated activities the insurer otherwise would have to perform in the forum where the collision occurred. By contrast, a liability claim requires the insurer to provide a defense for its insured, in addition to its indemnification obligation, unavoidably compelling performance in the jurisdiction in which the collision occurs.
The trial court in the present case improperly determined it lacked personal jurisdiction over the defendant under § 33-929 (f) (1) because it largely focused its inquiry on facts relevant to the formation of the contract and not where the contract was to be performed. In analyzing the defendant's performance, the court considered that the insured "reside[d] within the state of New York," the policy "was secured through a New York broker ... the vehicle ... was registered and garaged in New York," the insured "maintained his driver's license in New York ... [t]he policy was sold, paid for and written in New York," and the insured "was using a New York address ...." These facts do not help demonstrate whether the defendant's obligations-nationwide defense and indemnification-were "to be performed" in Connecticut for purposes of § 33-929 (f) (1). Instead, these facts connect more closely to the formation of the contract. For example, the location of the insured's residence and the state in which the insured maintained his driver's license have no bearing on where an accident or an injury requiring defense and indemnification was contractually contemplated to take place. Therefore, the trial court improperly *753determined **265that the defendant was not subject to personal jurisdiction under the corporate long arm statute.
II
We next consider whether exercising personal jurisdiction over the defendant is proper under the due process clause of the fourteenth amendment to the federal constitution, which limits the jurisdiction of state courts to render judgments against a nonresident defendant. Kulko v. Superior Court ,
The constitutional test, therefore, has two distinct but "related components: the minimum contacts inquiry and the reasonableness inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Id., at 524,
The United States Supreme Court has established that the minimum contacts analysis is based, in large part, on foreseeability. Id., at 529,
In the present case, the foreseeability prong of the minimum contacts analysis is satisfied. Given that the defendant drafted an insurance policy expressly covering nationwide travel, it should have foreseen the need to defend and indemnify its insured as a result of collisions during nationwide travel. The fact that the defendant anticipated such travel essentially encourages it, predictably resulting in the potential for claims arising out of injuries *754occurring coast-to-coast and legal disputes over coverage. Because the defendant obligated itself to provide a legal defense in Connecticut, it should have reasonably anticipated being haled into a Connecticut court when a dispute arose over the performance or nonperformance of its obligations. The defendant's promise to provide a defense-entailing **267acts such as interviewing witnesses, taking depositions, meeting with opposing counsel, and litigating in court-purposefully availed it of the privilege of conducting activities within this forum. The insurance policy was a substantial, self-drafted connection to Connecticut. That connection was not random, fortuitous, or attenuated, but, rather, it was a significant, profit driven effort to provide services in this forum in exchange for compensation.
Our analysis comports with the consensus of other jurisdictions that have similarly examined exerting personal jurisdiction over nationwide insurers that do not otherwise do any business in the forum. In Rossman v. State Farm Mutual Automobile Ins. Co. , supra,
The Fourth Circuit also explained that, because "an automobile liability policy is typically sued upon where an accident takes place," insurers should anticipate that insureds will travel to other states within the coverage territory "and become involved in accidents and litigation there." (Internal quotation marks omitted.)
**268(Internal quotation marks omitted.)
The United States Court of Appeals for the Ninth Circuit has ruled similarly. That court reasoned that "an insurer has the contractual ability to control the territory into which its product-the indemnification and defense of claims-will travel," and, therefore, "litigation requiring the presence of the insurer is ... foreseeable ...." (Internal quotation marks omitted.) Farmers Ins. Exchange v. Portage La Prairie Mutual Ins. Co. ,
*755"Once minimum contacts have been established, [t]he second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice-that is, whether it is reasonable under the circumstances of the particular case." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co. , supra,
In the present case, the factors indicate that it was fair and reasonable to require the defendant to defend itself in Connecticut. The first factor is " 'the burden on the defendant' ...." Burger King Corp. v. Rudzewicz ,
It is possible to view the third factor, which is " 'the plaintiff's interest in obtaining convenient and effective relief' ";
In short, requiring the defendant to defend itself in Connecticut comports with traditional notions of fair play and substantial justice. We therefore join other jurisdictions, cited previously, in concluding that an insurer that promises to defend and indemnify its insured in this forum *756cannot then claim there is no jurisdiction over it in that same forum.
The defendant points to Cogswell v. American Transit Ins. Co. , supra,
The defendant also contends that out-of-state cases bolster its argument that the minimum contacts requirement is not satisfied under the facts of the present case. For example, the defendant cites to an Arizona Supreme Court case, Batton v. Tennessee Farmers Mutual Ins. Co. ,
Lastly, the defendant reasserts the ways in which it lacks contacts with Connecticut, emphasizing that it is not "domiciled" in Connecticut, was "not licensed in Connecticut" at the time it was served, the contract **272was not "issued" in Connecticut, and the vehicle was not "garaged" in Connecticut. But this emphasis on the lack of certain Connecticut contacts misses the point of a minimum contacts analysis. The defendant might very well have more contacts with New York. But its agreement to defend and indemnify its insured for collisions in Connecticut satisfies the minimum contacts requirement and does not offend traditional notions of fair play under a due process analysis. The defendant cannot dissolve its contractually created minimum contacts with this forum by listing the ways in which it does not otherwise have a presence in Connecticut.
The judgment is reversed and the case is remanded with direction to deny the *757defendant's motion to dismiss and for further proceedings according to law.
In this opinion the other justices concurred.
General Statutes § 38a-321 provides in relevant part: "Upon the recovery of a final judgment against any person ... for loss or damage on account of bodily injury or death 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 was not satisfied ... such judgment creditor shall be subrogated to all 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."
After the plaintiffs brought the present action, the insured also brought a separate action in Connecticut against the defendant for failure to defend and indemnify him in the original action brought by the plaintiffs. The trial court granted the defendant's motion to dismiss in the case brought by the insured, reasoning that the court lacked personal jurisdiction over the defendant because it did not meet the due process requirements under the federal constitution. Cardozo v. Kingstone Ins. Co. , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-16-6028077-S (June 13, 2017) (
The plaintiffs also argued that the defendant's application for and the issuance of a license to provide insurance in Connecticut, which occurred after the events in question, subjected the defendant to the jurisdiction of the court under General Statutes § 38a-25 (b). The plaintiffs do not advance that argument before this court, and, thus, we deem it abandoned. Harris v. Bradley Memorial Hospital & Health Center, Inc. ,
Given that we find the statutory requirements for long arm jurisdiction are satisfied under § 33-929 (f) (1), we do not address the plaintiffs' argument that their cause of action arises from " 'tortious conduct in this state ... arising out of ... nonfeasance' " related to the defendant's failure to defend and indemnify its insured, which they claim confers long arm jurisdiction pursuant to § 33-929 (f) (4).
The defendant has not raised the issue of whether the Connecticut residency requirement of § 33-929 (f) (1) refers to the residency of the insured or the subrogee plaintiffs.
Our conclusion construing "to be performed" in § 33-929 (f) (1) as contemplated performance is consistent with how the Superior Court and the United States District Court for the District of Connecticut have interpreted that phrase. See, e.g., Prout v. Mukul Luxury Boutique Hotel & Spa , Superior Court, judicial district of New Britain, Docket No. CV-15-6029341-S (February 28, 2017) ("the contract expressly contemplated or required performance in Connecticut" [emphasis added; internal quotation marks omitted] ); Aurand v. Contemporary Marketing, Inc. , United States District Court, Docket No. 3:05CV1053 (JCH) (D. Conn. December 20, 2005) (same).
We note that certain of these cases analyze General Statutes (Rev. to 1979) § 33-411 (c), which is the predecessor to § 33-929 (f) (1) and contains identical language. In 1994, the legislature enacted Public Acts 94-186, §§ 193 (e) and 214, amending Connecticut's statutory scheme to conform to the Model Business Corporation Act. Thomason v. Chemical Bank ,
Although the defendant has unrelated obligations pursuant to the contract, such as paying for the " 'pollution cost[s]' " associated with some accidents, such a duty is not the most substantial part of its obligations.
We note that, although McGow involved a claim regarding uninsured motorist coverage, the long arm statute at issue in that case conferred personal jurisdiction to the maximum extent permitted by the due process clause of the federal constitution. McGow v. McCurry , supra,
The defendant's reliance on the trial court's decision to grant the motion to dismiss in Cardozo v. Kingstone Ins. Co. , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-16-6028077-S (June 13, 2017) (
Reference
- Full Case Name
- Jerzy SAMELKO v. KINGSTONE INSURANCE COMPANY
- Cited By
- 22 cases
- Status
- Published