Hilario's Truck Center, LLC v. Rinaldi

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HILARIO’S TRUCK CENTER, LLC v. LAURA
RINALDI ET AL.
(AC 39966)
Sheldon, Keller and Prescott, Js.
Syllabus
The plaintiff towing company sought to recover damages from N Co., an
insurance company, and its insured, R, arising out of vehicle recovery
and storage services that the plaintiff performed following a motor
vehicle accident involving R’s vehicle. The plaintiff alleged that N Co.
breached an implied contract to pay the cost of the expenses that the
plaintiff had incurred and that N Co. was liable to it for money damages
because it was a third-party beneficiary of R’s insurance contract with
N Co. The trial court granted N Co.’s motion to dismiss, and rendered
judgment thereon, from which the plaintiff appealed to this court. Held
that the trial court properly dismissed the plaintiff’s action as to N Co.,
that court having properly determined that the plaintiff, as a third-party
claimant, lacked standing to maintain a direct action against N Co.: the
plaintiff failed to identify any express language in the contract from
which it could be determined that N Co. and R intended to create a
direct obligation to the plaintiff specifically and the contract, which did
not list the plaintiff as an insured or refer to the plaintiff, was devoid of
any reference to entities like the plaintiff that might provide automobile
recovery, towing and storage service to R, and certain language in the
policy that obligated N Co. to pay for property damage as a result of
an accident arising out of the use of R’s automobile did not evince an
intent to create a direct obligation by N Co. to any third person or entity,
known or unknown, who suffered property damage as a result of R’s
use of her vehicle or who expended funds on R’s behalf to mitigate
property damage suffered by others, as that assertion confounded the
distinction between those persons or entities that might foreseeably
benefit from R’s contractual receipt of liability coverage with those
persons or entities to whom both R and N Co. specifically intended that
N Co. would assume a direct obligation; moreover, denying the plaintiff
third-party beneficiary status did not undermine sound public policy,
and the plaintiff’s out-of-state authority for such proposition was inappo-
site and unpersuasive, as those cases involved actions brought by or
against the named insured under the insurance contracts at issue and
did not involve the question of whether a towing company should be
deemed a third-party beneficiary to an insurance contract between the
automobile owner and an insurance company.
Argued April 10—officially released July 24, 2018
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Danbury, where the
court, Truglia, J., granted the motion to dismiss filed
by the defendant Nationwide Insurance Company, and
rendered judgment thereon, and the plaintiff appealed
to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Rene G. Martineau filed a brief for the appellee
(defendant Nationwide Insurance Company).
Opinion
PRESCOTT, J. The principal issue in this appeal is
whether a company that provided automobile towing
services to an insured motorist has standing as a third-
party beneficiary to bring a direct breach of contract
action against the insurance company that provided
automobile liability coverage to the insured. We con-
clude, under the circumstances of this case, that the
company is not an intended third-party beneficiary of
the insurance contract and therefore lacks standing to
bring a direct action against the insurer.
The plaintiff, Hilario’s Truck Center, LLC, appeals
from the judgment of the trial court granting the motion
to dismiss filed by the defendant, Nationwide Insurance
Company (Nationwide), as to counts one and three of
the complaint. Those counts alleged breach of contract
on the basis of Nationwide’s refusal to pay for towing
services provided to the defendant Laura Rinaldi.1 The
plaintiff claims on appeal that the court improperly
granted Nationwide’s motion to dismiss because the
plaintiff is a third-party beneficiary to the insurance
contract between Nationwide and Rinaldi and therefore
has standing to bring claims directly against Nationwide
for breach of contract.2
The following facts and procedural history, as recited
by the trial court in its memorandum of decision, are
relevant to the resolution of this appeal. On March 17,
2015, Rinaldi was involved in a motor vehicle accident
on Route 34 in Newtown. Rinaldi’s vehicle left the road-
way, traveled over a rock wall, rolled over, and landed in
a wooded area some distance from the road. Newtown
Police responded to the scene and, shortly thereafter,
requested the plaintiff’s services to recover and tow
Rinaldi’s vehicle. Removal of the vehicle required a
heavy duty wrecker and a flatbed truck. The plaintiff
provided these services, as well as ‘‘a crush wrap to
protect the vehicle’’ while it was towed from the acci-
dent scene. The plaintiff submitted invoices for its tow-
ing services to Nationwide. At the time the court issued
its decision, neither defendant had paid the plaintiff for
its services, and Rinaldi’s vehicle was stored on the
plaintiff’s property.
The plaintiff commenced the underlying action
against the defendants to recover for the towing and
vehicle recovery expenses that it incurred as a result of
Rinaldi’s motor vehicle accident. The plaintiff brought
a three count complaint. The first count alleges breach
of an implied contract against both defendants.3 Specifi-
cally, the plaintiff alleges that ‘‘[t]he law implies a con-
tractual obligation to pay the cost of services rendered
on the automobile owner,’’ and that the defendants
breached this implied contract by refusing to pay the
plaintiff for its services.
The second count sounds in unjust enrichment
against Rinaldi. It alleges that Rinaldi ‘‘received the
benefit of having the vehicle removed from the scene
and towed to the plaintiff’s storage facility’’ and contin-
ues ‘‘to enjoy the benefit of the plaintiff’s recovery,
towing and storage services for [her] vehicle despite
not paying the plaintiff just compensation for [its] ser-
vices, to the plaintiff’s detriment.’’
The third count alleges breach of contract against
Nationwide on the theory that Nationwide is liable for
money damages to the plaintiff because it is a third-
party beneficiary of Rinaldi’s insurance contract with
Nationwide. The third count incorporates by reference
the allegations of the first two counts and further alleges
that, despite being properly notified of the plaintiff’s
claims for services provided to Rinaldi, Nationwide
wrongfully has refused to pay the plaintiff’s invoice for
those services.
In response to the complaint, Nationwide filed a
motion to dismiss on the basis that the court lacked
subject matter jurisdiction because the plaintiff did not
have standing to bring claims directly against it. In its
memorandum in support of the motion to dismiss,
Nationwide claimed that the plaintiff lacked standing
because it is not a party to the insurance contract
between Nationwide and Rinaldi and neither party
intended to assume a direct obligation to the plaintiff.4
Additionally, Nationwide argued that the contract at
issue excludes coverage for towing expenses, and,
therefore, even if the plaintiff had standing to bring an
action pursuant to the contract, Nationwide is not liable
for the cost of the towing services rendered by the
plaintiff.
The plaintiff filed an objection to the motion and a
memorandum in support of the objection. Following
oral argument on the motion, the court, Truglia, J.,
granted the motion to dismiss in a written memorandum
of decision. In that decision, the court concluded that
the plaintiff was not a third-party beneficiary to the
contract and, therefore, did not have standing to sue
Nationwide for breach of the insurance contract. This
appeal followed.
The plaintiff claims on appeal that the trial court
improperly granted Nationwide’s motion to dismiss
because the plaintiff is a third-party beneficiary to the
insurance contract between the defendants and, there-
fore, has standing to bring a direct claim against Nation-
wide. We disagree.
We begin by setting forth the applicable principles
of law and standards of review. ‘‘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. . . . A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction.’’ (Internal quotation marks omit-
ted.) Beecher v. Mohegan Tribe of Indians of Connecti-
cut, 282 Conn. 130, 134, 918 A.2d 880 (2007); see Practice
Book § 10-30 (a) (1) (‘‘[a] motion to dismiss shall be
used to assert . . . lack of jurisdiction over the sub-
ject matter’’).
‘‘[L]ack of subject matter jurisdiction may be found
in any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts.’’ (Internal quotation marks omitted.)
Columbia Air Services, Inc. v. Dept. of Transportation,
293 Conn. 342, 347, 977 A.2d 636 (2009). As is the case
here, ‘‘if the complaint is supplemented by undisputed
facts established by affidavits submitted in support of
the motion to dismiss . . . the trial court, in determin-
ing the jurisdictional issue, may consider these supple-
mentary undisputed facts and need not conclusively
presume the validity of the allegations of the complaint.
. . . Rather, those allegations are tempered by the light
shed on them by the [supplementary undisputed facts].
. . . If affidavits and/or other evidence submitted in
support of a defendant’s motion to dismiss conclusively
establish that jurisdiction is lacking, and the plaintiff
fails to undermine this conclusion with counteraffida-
vits . . . or other evidence, the trial court may dismiss
the action without further proceedings. . . . If, how-
ever, the defendant submits either no proof to rebut
the plaintiff’s jurisdictional allegations . . . or only evi-
dence that fails to call those allegations into question
. . . the plaintiff need not supply counteraffidavits or
other evidence to support the complaint, but may rest
on the jurisdictional allegations therein.’’ (Emphasis in
original; internal quotation marks omitted.) Id, 347–48.
‘‘The issue of standing implicates subject matter juris-
diction and is therefore a basis for granting a motion
to dismiss. Practice Book § [10-30] (a). [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.) May v.
Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). ‘‘It is
well established that, in determining whether a court
has subject matter jurisdiction, every presumption
favoring jurisdiction should be indulged.’’ (Internal quo-
tation marks omitted.) New England Pipe Corp. v.
Northeast Corridor Foundation, 271 Conn. 329, 335,
857 A.2d 348 (2004). ‘‘Because a determination regard-
ing the trial court’s subject matter jurisdiction raises a
question of law, our review is plenary.’’ (Internal quota-
tion marks omitted.) May v. Coffey, supra, 113.
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] 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. . . . [If] a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary. . . .
In addition, because standing implicates the court’s sub-
ject matter jurisdiction, the issue of standing is not
subject to waiver and may be raised at any time.’’ (Inter-
nal quotation marks omitted.) Wells Fargo Bank, N.A.
v. Strong, 149 Conn. App. 384, 397–98, 89 A.3d 392, cert.
denied, 312 Conn. 923, 94 A.3d 1202 (2014).
A person or entity that is not a named insured under
an insurance policy and who does not qualify, at least
arguably, as a third-party beneficiary, lacks standing
to bring a direct action against the insurer. Wilcox v.
Webster Ins., Inc., 294 Conn. 206, 215–18, 982 A.2d 1053(2009); cf. Dow & Condon, Inc. v. Brookfield Develop-
ment Corp., 266 Conn. 572, 580–81, 833 A.2d 908 (2003).
‘‘[T]he fact that a person is a foreseeable beneficiary
of a contract is not sufficient for him to claim rights
as a third party beneficiary.’’ Grigerik v. Sharpe, 247
Conn. 293, 317–18, 721 A.2d 526 (1998). ‘‘Performance
of a contract will often benefit a third person. But unless
the third person is an intended beneficiary5 . . . no
duty to him is created.’’ (Footnote added.) 2
Restatement (Second), Contracts § 302, comment (e)
(1981).
‘‘A third party beneficiary may enforce a contractual
obligation without being in privity with the actual par-
ties to the contract.’’ (Footnote omitted.) Gateway Co.
v. DiNoia, 232 Conn. 223, 230, 654 A.2d 342 (1995).
‘‘Therefore, a third party beneficiary who is not a named
obligee in a given contract may sue the obligor for
breach.’’ Id., 230–31. ‘‘[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 [benefi-
ciary] and . . . that intent is to be determined from
the terms of the contract read in the light of the circum-
stances attending its making, including the motives and
purposes of the parties. . . . Although . . . it is not
in all instances necessary that there be express language
in the contract creating a direct obligation to the
claimed third party beneficiary . . . the only way a
contract could create a direct obligation between a
promisor and a third party beneficiary would have to be
. . . because the parties to the contract so intended.’’
(Citation omitted; internal quotation marks omitted.)
Dow & Condon, Inc. v. Brookfield Development Corp.,
supra, 266 Conn. 580–81. ‘‘[B]oth contracting parties
must intend to confer enforceable rights in a third
party’’; (internal quotation marks omitted) id., 581; in
order to give the third party standing to bring suit. This
requirement ‘‘rests, in part at least, on the policy of
certainty in enforcing contracts,’’ which entitles each
party to a contract ‘‘to know the scope of his or her
obligations thereunder.’’ (Internal quotation marks
omitted.) Id.
To the extent that the plaintiff’s claims require us to
interpret the contract between Rinaldi and Nationwide,
‘‘[c]onstruction of a contract of insurance presents a
question of law for the court which this court reviews
de novo.’’ (Internal quotation marks omitted.) Board of
Education v. St. Paul Fire & Marine Ins. Co., 261 Conn.
37, 40, 801 A.2d 752 (2002). ‘‘It is the function of the
court to construe the provisions of the contract of insur-
ance. . . . The [i]nterpretation of an insurance policy
. . . involves a determination of the intent of the parties
as expressed by the language of the policy . . . [includ-
ing] what coverage the . . . [insured] expected to
receive and what the [insurer] was to provide, as dis-
closed by the provisions of the policy. . . . [A] contract
of insurance must be viewed in its entirety, and the
intent of the parties for entering it derived from the
four corners of the policy . . . [giving the] words . . .
[of the policy] their natural and ordinary meaning
. . . .’’ (Internal quotation marks omitted.) Hartford
Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co.,
274 Conn. 457, 463, 876 A.2d 1139 (2005); accord QSP,
Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343,
351–52, 773 A.2d 906 (2001). ‘‘If the terms of the [insur-
ance] policy are clear and unambiguous, then the lan-
guage from which the intention of the parties is to be
deduced, must be accorded its natural and ordinary
meaning. . . . Under those circumstances, the policy
is to be given effect according to its terms.’’ (Citation
omitted; internal quotation marks omitted.) Taylor v.
Mucci, 288 Conn. 379, 384, 952 A.2d 776 (2008); see
also Hartford Casualty Ins. Co. v. Litchfield Mutual
Fire Ins. Co., supra, 274 Conn. 463.
The plaintiff has failed to identify any express lan-
guage in the insurance contract from which this court
could conclude that Rinaldi and Nationwide intended
to create a direct obligation to the plaintiff specifically.
Certainly, the plaintiff is not listed as an insured and,
indeed, is not referred to or mentioned at all in the
contract. Moreover, the contract is devoid of any refer-
ence generally to entities like the plaintiff that might
provide automobile recovery, towing and storage ser-
vice to Rinaldi.6
The present case is unlike Wilcox v. Webster Ins.,
Inc., supra, 294 Conn. 206. In Wilcox, the members of
a limited liability company made a claim against the
defendant insurer on an automobile policy and umbrella
policy issued to their company for indemnification
against claims arising from automobile accidents
involving company vehicles. Id., 211–13. The members
directly sued the insurance company for breach of con-
tract as a third-party beneficiary after their claim had
been denied by the insurer. Id. One of the members
was a specifically named insured on the automobile
policy; the other was a specifically named insured on
the umbrella policy, and the umbrella policy listed the
company’s automobile policy as an ‘‘underlying’’ insur-
ance policy for the umbrella coverage. Id., 210, 218.
In Wilcox, our Supreme Court held that the parties
arguably intended to cover the members of the limited
liability company. Id., 218–19. Therefore, the members
had standing to sue because they had a colorable claim
that they were either named insureds or third-party
beneficiaries to the contract between the limited liabil-
ity company and the insurance company. Id. By contra-
distinction, unlike the members in Wilcox, the plaintiff
here was not named in any part of the insurance con-
tract and the plaintiff has not directed our attention to
any language in the contract showing that the defen-
dants, the named parties, intended to establish a direct
obligation to the plaintiff.7
The plaintiff, in its attempt to establish that Rinaldi
and Nationwide intended to assume a direct contractual
obligation to it, relies upon the following language in
the contract providing Rinaldi coverage for property
damage: ‘‘We will pay for damages for which you are
legally liable as a result of an accident arising out of
the . . . use . . . of your auto. Damages must involve
. . . property damage or . . . bodily injury.’’ The
insurance contract defines property damage as the ‘‘(a)
destruction of tangible property; (b) damage or injury
to it; and (c) loss of its use.’’ As a factual matter, the
plaintiff argues that because Rinaldi’s automobile came
to rest following the accident on the real property of
a third person, Rinaldi incurred liability to the property
owner for damage to the real property and the plaintiff
mitigated Rinaldi’s liability by removing the vehicle
from the property and towing it away. From these facts
and the language of the contract providing coverage
for property damage, the plaintiff leaps to the legal
conclusion that Rinaldi and Nationwide intended that
Nationwide assume a direct obligation to the property
owner, and by further extension, to the plaintiff itself.
We disagree with the plaintiff that the provision of
liability coverage in the contract for property damage
evinces an intent to create a direct obligation by Nation-
wide to any third person or entity, known or unknown,
(1) who suffers property damage as a result of Rinaldi’s
use of her vehicle or (2) who, although not suffering
property damage itself, expends funds on Rinaldi’s
behalf to mitigate property damage suffered by others.
The plaintiff’s assertion simply confounds the distinc-
tion between those persons or entities that might fore-
seeably benefit from Rinaldi’s contractual receipt of
liability coverage with those persons or entities to
whom both Rinaldi and Nationwide specifically
intended that Nationwide would assume a direct obliga-
tion. As we previously have discussed, ‘‘the fact that a
person is a foreseeable beneficiary of a contract is not
sufficient for him to claim rights as a third party benefi-
ciary.’’ Grigerik v. Sharpe, supra, 247 Conn. 317–18; see
also Macomber v. Travelers Property & Casualty Corp.,
261 Conn. 620, 642, 804 A.2d 180 (2002) (in context of
settling claims, insurer owes no fiduciary duty to third-
party claimant because ‘‘such a duty would interfere
with the insurer’s ability to act primarily for the benefit
of its insured’’ [emphasis in original]). The language of
the insurance contract should not be tortured to impose
a direct obligation on Nationwide to the potentially
astronomical number of possible persons or entities
that might suffer property damage8 resulting from
Rinaldi’s use of her vehicle or who might mitigate prop-
erty damage suffered by others.
The plaintiff argues that denying it third-party benefi-
ciary status undermines sound public policy, because,
in the plaintiff’s view, ‘‘any other rule would provide
the insured with the economic incentive to allow the
loss to occur, to the detriment of the insurer, quite
possibly the insured, and in a fair number of cases, to
the general public as well.’’ We reject this contention.
In advancing its public policy argument about mitiga-
tion of damages, the plaintiff relies on out-of-state
authority that we find to be unpersuasive. Specifically,
the plaintiff cites State Farm Mutual Automobile Ins.
Co. v. Toro, 127 N.J. Super. 223, 316 A.2d 745 (Law
Div. 1974), and Spurgeon v. Certain Underwriters at
Lloyd’s, London, United States District Court, Docket
No. 3:05CV100, 2008 WL 53111 (N.D.W. Va. Jan. 2, 2008),
amended in part on other grounds, Docket No.
3:05CV100, 2008 WL 360562 (N.D.W. Va. Feb. 8, 2008).
In Toro, a declaratory judgment action was brought
by an insurance company against its insured to deter-
mine whether towing and storage charges incurred fol-
lowing a collision were recoverable by the insured as
consequential damages under an uninsured motorist
endorsement. State Farm Mutual Auto Ins. Co. v. Toro,
supra, 127 N.J. Super. 224. Although the court in Toro
stated that costs associated with towing a motor vehicle
are proximately caused by the underlying motor vehicle
accident, the court did so in the context of discussing
the scope of relief available to the insured in light of the
policies underlying uninsured motorist coverage law.
In Spurgeon, a towing company that rendered ser-
vices as a result of a motor vehicle accident sued the
insured for towing costs. Spurgeon v. Certain Under-
writers at Lloyd’s, London, supra, 2008 WL 53111, *2.
The insurance company refused to defend its insured
in the action or to pay the charges incurred for towing.
Id. The insured then sued the insurance company, which
filed a motion for summary judgment on the ground that
the insurance policy did not cover towing services. Id.The court in Spurgeon found that the insurance com-
pany was liable to the insured for the towing and stor-
age costs because there was a provision in the insurance
policy between the parties that required the insured to
mitigate damages. Id., *3. (‘‘[a] policy provision requir-
ing the insured to protect the vehicle from harm or
damage following a collision permits the insured to
recover expenses of towing the vehicle to a place of
safety’’).
We do not find these cases relevant. Both cases
involve actions brought by or against the named insured
under the respective insurance policies. Neither case
involved the question of whether a towing company
should be deemed a third-party beneficiary to an insur-
ance contract between the automobile owner and an
insurance company. Moreover, in Spurgeon and Toro,
the courts’ public policy conclusions relied on the fact
that the named insured was seeking coverage. This rea-
soning does not, as the plaintiff argues, extend to ‘‘the
service professionals who cleared the damage from
the property.’’
Limiting the availability of direct breach of contract
actions against insurers to those third persons or enti-
ties to whom the parties to the contract intend to create
a direct obligation will not, contrary to the plaintiff’s
assertion, discourage third parties from mitigating prop-
erty damage. If a towing company renders services after
an accident, other avenues exist for the towing com-
pany to seek recovery for those services. We may pre-
sume that in many instances, the insurance company
will pay for the services if the policy provides for such
coverage. If there is no coverage for towing expenses,
the towing company can seek recovery from the owner
of the vehicle directly. Importantly, pursuant to General
Statutes § 38a-321,9 if the towing company obtains a
judgment in a direct action against an insured and the
insured was entitled to coverage for such a loss, the
judgment creditor towing company is subrogated to the
rights of the insured and may bring a direct action
against the insurer to recover on the insurance policy.
See Carford v. Empire Fire & Marine Ins. Co., 94 Conn.
App. 41, 46, 891 A.2d 55 (2006) (‘‘[a] third party claimant
is subrogated to the rights of the insured, and is entitled
to bring an action against the insurance company, only
after judgment [emphasis in original]’’).
As a third-party claimant, the plaintiff lacks standing
to maintain a direct action against the insurance com-
pany. Accordingly, the trial court properly granted the
Nationwide’s motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Rinaldi is named as a defendant in counts one and two of the complaint.
She has not participated in the present appeal. For clarity, we refer to the
defendants individually by name and collectively as the defendants.
2
We note that the court’s judgment dismissing all of the counts against
Nationwide constitutes an appealable final judgment, although counts one
and two remain pending as to Rinaldi. Practice Book § 61-3 provides in
relevant part: ‘‘A judgment disposing of only a part of a complaint, counter-
claim, or cross complaint is a final judgment if that judgment disposes of
all causes of action in that complaint, counterclaim, or cross complaint
brought by or against a particular party or parties. . . .’’
3
In its motion to dismiss, Nationwide stated that the third count was the
‘‘sole count pending against [it].’’ The court, however, in its memorandum
of decision, assumed that the plaintiff also asserted a claim for liability for
breach of express and implied contract against Nationwide in the first count,
although the allegations in count one are less than clear. Other than under
the third-party beneficiary doctrine, the plaintiff has made no arguments
on appeal regarding its standing to bring a direct claim against Nationwide
for breach of an express or implied contract between the plaintiff and
Nationwide. Therefore, any claim as to the propriety of the court’s ruling
with respect to count one has been abandoned by the plaintiff on appeal.
Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346(1996) (‘‘[if] a claim is asserted in the statement of issues but thereafter
receives only cursory attention in the brief without substantive discussion
or citation of authorities, it is deemed to be abandoned’’ [internal quotation
marks omitted]).
4
Nationwide attached to its memorandum in support of the motion an
uncertified, unauthenticated letter denying Rinaldi’s claim for towing
expenses. Nationwide also provided the certified, authenticated declaration
page of the insurance contract and the insurance contract in its entirety.
The plaintiff has not asserted that the court improperly relied upon these sub-
missions.
5
Section 302 of 2 Restatement (Second) of Contracts (1981) defines
intended and incidental beneficiaries as follows:
‘‘(1) Unless otherwise agreed between promisor and promisee, a benefi-
ciary of a promise is an intended beneficiary if recognition of a right to
performance in the beneficiary is appropriate to effectuate the intention of
the parties and either
‘‘(a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or
‘‘(b) the circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.
‘‘(2) An incidental beneficiary is a beneficiary who is not an intended bene-
ficiary.’’
6
The contract, by its terms, excluded coverage to Rinaldi for towing
services unless (1) Rinaldi paid an additional premium and (2) coverage for
towing was expressly noted on the declaration page of the contract. It is
undisputed that Rinaldi did not pay an additional premium for towing cover-
age and coverage for towing expenses is not listed on the declarations page.
Even if Rinaldi had contracted for towing coverage, however, that fact would
not necessarily mean that the Rinaldi and Nationwide intended to create a
direct contractual obligation to any person or entity that provided towing
services to Rinaldi.
7
Gateway Co. v. DiNoia, supra, 232 Conn. 223, is also instructive. In that
case, our Supreme Court concluded that the owner of a premises, The
Gateway Company (Gateway), was not a named party to a contract assigning
the lease for the premises from the lessee to Lena DiNoia, the sublessee,
it was an intended third-party beneficiary of the assignment. Id., 225, 232.
In the lease assignment contract between DiNoia and the original lessee,
DiNoia assumed all of the obligations that the lessee had in his contract
with Gateway. Id., 226. This included the obligation to keep the premises
in ‘‘good order and repair.’’ Id., 225. Although Gateway was not a named
party to the assignment, our Supreme Court concluded that, ‘‘as a matter
of law . . . the intent expressed in the plain language of the lease between
DiNoia and [the original lessee] created a direct obligation from DiNoia to
Gateway [so] that . . . Gateway was a third party beneficiary [lease assign-
ment contract].’’ Id., 232.
8
Indeed, the plaintiff’s assertion with respect to the property damage
provision of the contract could be applied equally to the provisions providing
Rinaldi liability coverage for bodily injury. Thus, under the plaintiff’s theory,
Nationwide would have also undertaken a direct obligation to any person
suffering bodily injury on account of Rinaldi’s use of her vehicle and to those
that provide the injured person medical treatment or rehabilitative services.
9
General Statutes § 38a-321 provides in relevant part: ‘‘Upon the recovery
of a final judgment against any person, firm or corporation by any person,
including administrators or executors, 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 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.’’