DocketNumber: No. CV940539691
Citation Numbers: 1995 Conn. Super. Ct. 4577
Judges: SHELDON, JUDGE.
Filed Date: 5/1/1995
Status: Non-Precedential
Modified Date: 7/5/2016
Defendant Yocum is a resident of Wallingford, Connecticut, who, from 1958 through 1963, was employed at various times by defendants Katy and Wallace International. In a claim now pending before the WCC, Yocum alleges that she suffers from mesothelioma as a result of her exposure to asbestos while working for Katy and/or Wallace International.
While Yocum was employed by Katy and Wallace International, both employers maintained workers' compensation insurance under one or more policies issued by American Mutual. On March 9, 1989, however, American Mutual was determined to be insolvent by a court of competent jurisdiction.
Under the CIGA Act, CIGA is obligated to pay any "covered claim" arising under a policy of insurance issued by an insurer later determined to be insolvent if the claim is filed with it, or is made the subject of a notice to the receiver or liquidator of the insolvent insurer, within two years from the date of the declaration of insolvency. Conn. Gen. Stat. §§
By March 10, 1991, neither Yocum nor Katy nor Wallace International had filed with CIGA or given notice to the receiver of American Mutual of any claim for benefits under CT Page 4579 any workers' compensation insurance policy issued to Katy or Wallace International by American Mutual. Therefore, claims CIGA, it is not now obligated to pay Yocum's pending claim or to reimburse Katy or Wallace International for any expenses they may have incurred or payments they may be required to make on account of that claim.
Defendant Yocum has moved this Court to dismiss this action on the ground that the Court lacks subject-matter jurisdiction to entertain it because the plaintiff has failed either to make parties to the action, or otherwise to give notice of the pendency thereof, to all persons whose interests may potentially be affected thereby. Insisting, in particular, that notice of the action should have been given to all persons who worked at Katy and/or Wallace International when their workers' compensation insurance was carried by American Mutual, Yocum asks either that the action be dismissed for lack of subject-matter jurisdiction or that CIGA be ordered to give immediate notice of the action to the class of persons she has identified.
In support of this motion, defendant Yocum has duly filed a memorandum of law. Plaintiff CIGA, for its part, has joined issue on the motion by filing its own opposing memorandum.
Practice Book § 390 sets forth the requirements under which a court will render a declaratory judgment. In particular, Section 390(d) provides in relevant part, that "the court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint . . . have reasonable notice thereof." "[F]ailure to comply with § 390(d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment." Serrani v.Board of Ethics,
"A motion to dismiss is the proper vehicle by which to raise the failure to give notice to all interested parties pursuant to Practice Book 390(d)." Pinnix v. LaMorte,
At issue in Raymark was the extent of CIGA's obligation to pay "covered claims" under certain insurance policies issued to the named defendant and two of its affiliates by an insolvent insurer. Among the questions raised by the plaintiff were several which directly affected the interests of potential claimants under the insolvent insurer's policies, including: (1) the statutory limits, if any, under General Statutes § 38-278, on the amount a potential claimant can recover against CIGA on his claim; (2) the obligation, if any, of a potential claimant to exhaust his claims against solvent insurers before pursuing any claim against CIGA under an insolvent insurer's policy; and (3) the degree, if any, to which the amount of any covered claim should be reduced by amounts which the claimant received or was eligible to receive from other sources, including medical insurance, workers' compensation and solvent insurers. Raymark, supra, 226-27.
Notwithstanding its focus on issues affecting the interests of potential claimants against defendant Raymark, its affiliates and their insurers, plaintiff CIGA's lawsuit included no party who shared or could meaningfully represent those interests. Id., 228. So noting,1 theRaymark Court
conclude[d] that the trial court erred in rendering a declaratory judgment . . . before some representative of the interests of those having personal injury claims against Raymark, and thus having an interest in the [insolvent insurer's] policies insuring its liability, had been joined in this action or notified of its pendency.
Id., 230. The Court then noted that CT Page 4582
[a]lthough these claimants are undoubtedly too numerous for all of them to be made parties, our statutes and rules of practice provide for allowing some defendants to represent others having similar interests. General Statutes §§
52-105 ,52-107 ; Practice Book §§ 87 through 90.The plaintiff should have joined some of the claimants or persons authorized to represent them, as defendants and should have obtained authority from the court for these defendants to represent the class of claimants. As an alternative, the plaintiffs should have obtained an order of notice for the purpose of informing the claimants of the pendency of this action. See National Transportation Co. v. Toquet,
123 Conn. 468 ,484 ,196 A. 344 (1937).The conclusion we have reached that the court lacked subject matter jurisdiction to render its declaratory judgment does not require that the action be dismissed upon remand, because the jurisdictional defect can be cured by further proceedings in the that court. We must, however, set aside the judgment in view of the lack of jurisdiction.
Id.
Under Raymark, defendant Yocum insists that plaintiff CIGA must either join in this action or give notice thereof to all persons who may one day bring claims against CIGA under workers' compensation insurance policies issued by American Mutual to defendants Katy and/or Wallace International for injuries similar to her own, or suffer the dismissal of this action for lack of subject-matter jurisdiction. The plaintiff opposes this argument, contending: first, that the issues involved herein affect CT Page 4583 only defendant Yocum; and second, that that in any event, Yocum more than adequately represents the interests of all persons who may potentially be affected by the court's decision herein. For the following reasons, the Court agrees with CIGA, and thereby concludes that Yocum's motion to dismiss must be denied.
Similarly, the plaintiff's argument that the WCC lacks subject-matter jurisdiction to interpret and apply the CIGA Act is merely a procedural claim that any substantive interpretation or application of the Act must be made by a court. It is not a substantive claim that any provision of the Act should be given a particular legal interpretation. If the plaintiff prevails on this portion of its action, no future claimant's substantive rights or remedies will be affected. Instead, in that event, any future claim as to the nature and extent of a party's rights or remedies under the CIGA Act would simply be rerouted from the WCC to this Court, which would resolve the claim on its merits in due course. The Court must therefore conclude that here, unlike in Raymark, other potential claimants against CIGA under the insolvent insurer's policies have no legally cognizable interest which requires that they be joined in or receive notice of this action under CPB § 390(d).
Therefore, in the absence of any indication that defendant Yocum's claim is materially different from that which any other former Katy or Wallace International employee may one day file, she is an ideal representative of the class of persons whose interests may in some way be affected by the resolution of this case. That being so, the addition of other partiers hereto is entirely unnecessary.
Conclusion
The motion to dismiss of defendant Yocum is hereby denied.
Michael R. Sheldon Judge
Perrys, Inc. v. Waterbury Redevelopment Agency , 157 Conn. 122 ( 1968 )
National Transportation Co., Inc. v. Toquet , 123 Conn. 468 ( 1937 )
Reynolds v. Soffer , 183 Conn. 67 ( 1981 )
Baldwin Piano & Organ Co. v. Blake , 186 Conn. 295 ( 1982 )