FindLaw's Superior Court of Connecticut case and opinions. (2022)

Superior Court of Connecticut.

Richard Shenkman-Tyler v. Central Mutual Insurance Co.

CV085009740

Decided: December 22, 2009

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 120

On October 10, 2008, the plaintiff, Richard Shenkman-Tyler, filed this action for breach of contract, breach of the covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (CUTPA) and negligent infliction of emotional distress against the defendant, Central Mutual Insurance Company.   The plaintiff filed this lawsuit subsequent to filing an action for declaratory judgment against the defendant and the plaintiff's ex-wife, Nancy Tyler (Tyler).   That lawsuit is pending in the Superior Court for the Judicial District of New London, Docket No. CV 07 4007115.

In this action, the plaintiff alleges that the defendant issued a homeowner's insurance policy to cover residential property located at 29 South Washington Street, Niantic, Connecticut.   The complaint is silent as to who owns the South Washington Street property, but asserts that the plaintiff and Tyler paid all premiums due and performed all obligations under the policy, as required by the defendant.   The complaint further alleges that on March 5, 2007, while the policy was in full force and effect, the residential property and its contents were destroyed by fire.

Referencing the declaratory judgment litigation, the plaintiff asserts in his complaint that the defendant breached its contract of insurance with the plaintiff by filing special defenses that the plaintiff had no insurable interest in the subject property, and further that if he was an insured that he was disqualified from coverage.   In the second count of the complaint, the plaintiff alleges a breach of the covenant of good faith and fair dealing because the defendant failed to evaluate the fire loss objectively, failed to make a reasonable investigation, refused coverage under the policy without having a factual or legal basis for doing so, failed to investigate the origin of the fire and refused coverage under the policy without having conducted any independent investigation of the origin or cause of the fire.   In the third court, the plaintiff asserts that the defendant has violated the CUTPA because of misrepresentations, an inadequate investigation, failing to promptly investigate, refusing to pay claims and not attempting in good faith to effectuate prompt, fair and equitable settlement of the claims.   Finally, the plaintiff asserts that the defendant has negligently caused the plaintiff emotional distress.

CHRONOLOGICAL AND PROCEDURAL HISTORY OF THIS LITIGATION AND RELATED LITIGATION

In order to address the issues raised by this motion to dismiss, it is important to provide a context within which to evaluate the issues.   This context is supported by affidavits filed with the court, and further the court taking judicial notice of past and pending court proceedings.

The plaintiff and Tyler were married on September 13, 1993.   On or about August 24, 1995, Tyler took title in her name to property known as 29 South Washington Street, Niantic, Connecticut.1  Tyler has been and is the sole owner of property located at 29 South Washington Street, East Lyme, Connecticut for all purposes and times relevant to this litigation.

On or about July 19, 2006, Tyler initiated an action in the Hartford Superior Court seeking a dissolution of her marriage to the plaintiff on the grounds of an irretrievable breakdown.

On March 5, 2007, while the plaintiff was the sole occupant of the premises at South Washington Street, the property was totally destroyed by fire.

On May 10, 2007, the plaintiff was arrested on charges of arson in the first degree and reckless endangerment in the first degree in relation to the May 5, 2007, fire.  (Docket No. KNL CR07 0291943-T.)   Charges are currently pending in the New London Judicial District.

On May 18, 2007, the plaintiff filed the action for declaratory judgment against the defendant and Tyler.   The complaint in that action alleges that Tyler unilaterally removed the plaintiff as a named insured under the policy and asserted her right that should any proceeds be payable under the terms of the policy, that she should receive all of such proceeds and the plaintiff nothing.   The plaintiff asserts in the declaratory judgment action that he had equal rights to any proceeds paid by the insurer under the terms of the policy.   The complaint requests a declaratory judgment determining “1) [w]hether or not the plaintiff has a right to receive proceeds under the terms of the policy;  2)[t]hat payment should be made by defendant CMIC under the terms of the policy for all losses incurred as a result of the destruction and/or damage to the residential structure and its contents caused by the fire of March 2007, as provided by the policy.”

On July 2, 2008, a memorandum of decision was issued in the dissolution action.  Tyler v. Tyler, Superior Court, judicial district of Hartford, Docket No. FA 06 4024421 (July 2, 2008, Simon, J.).   In this memorandum of decision, the court determined that the mortgage and deed to the property at 29 South Washington Street was in Tyler's name alone.   The trial court noted that the plaintiff in this case “has threatened to continue his pursuit of the wife with appeals and further proceedings until all of her assets are exhausted.”   (Memorandum of Decision, p. 12.)   The court further found that the plaintiff has “pursued frivolous motions and forced [Nancy Tyler] into court to seek compliance with the basic rules of discovery and production.  [Richard Shenkman-Tyler] has defied the court by refusing to provide the wife with any court-ordered materials [Richard Shenkman-Tyler's] intent, as revealed in exhibits is clear;  he will expend all resources to ensure that his wife will be in continued litigation if she pursues the divorce.   He has harassed his wife with a barrage of e-mails and phone calls.   His phone calls to her are chilling and morose.   His language is disgusting and insulting.   His behavior is obsessive and cruel.   His threats are unrelenting and unprovoked.”   (Memorandum of Decision, p. 13.)

The court, Simon, J., entered the following orders that are germane to the issues raised by this motion to dismiss.  “Wife shall retain sole title and ownership to property at 29 South Washington Street, East Lyme, Connecticut, free from any claims of the husband.   Wife shall be entitled to any and all proceeds from the pending fire insurance loss claim as made to the structure, contents, loss of use and any other claims that may be made under the terms of the policy.   The court also awards the wife all of the husband's interests in said policy, if any exists.   Should husband receive any proceeds from the pending litigation brought against the carrier as to any and all claims that may be made under the policy, including husband's claim of bad faith, the same shall be deemed to be the property of the wife.   This order is an assignment to the wife of any interest the husband may have in any litigation involving this property.   Wife shall remain solely responsible for the taxes, insurance and currently existing mortgage encumbering the referenced property.”

In July 2008, the plaintiff appealed the decision of the trial court with regard to the dissolution of his marriage.   On July 7, 2009, the Appellate Court rejected the appeal filed by the husband in the dissolution action and affirmed the trial court decision.   See Tyler v. Shenkman-Tyler, 115 Conn.App. 521, 973 A.2d 163 (2009).   The plaintiff herein sought review of the Appellate Court decision before the Supreme Court.   The petition for certiorari was denied.   See Tyler v. Shenkman-Tyler, 293 Conn. 920, 979 A.2d 493 (2009).

Subsequent to the denial of certiorari, the defendant and Tyler filed motions to dismiss in the declaratory judgment action and the defendant filed a motion to dismiss in this case.   The defendant argues that the court lacks jurisdiction over this case because the issues presented are barred by the doctrine of mootness.   In response, the plaintiff argues that the dissolution decision did not decide the issues presented in the present action, thus, the action is not moot or barred by the doctrines of res judicata or collateral estoppel.

On December 4, 2009, this court ordered the parties to submit briefs addressing the issue of standing.   This court noted that the parties addressed the issue of standing in the declaratory judgment action, but did not raise the issue with respect to this litigation.   The plaintiff filed a response to the order on December 11, 2009, and the defendant filed a response on December 14, 2009.   The defendant e-filed an additional memorandum on December 22, 2009 to respond to issues raised in oral argument.

It is within the context of these facts that the court will evaluate the defendants' challenges to the subject matter jurisdiction of this court.

LAW OF MOTION TO DISMISS

“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 omitted.)  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).   “Any claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”  Practice Book § 10-33.

“The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[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).

DISCUSSION

The plaintiff argues that he has standing to bring this action because he was a party to a contract that the defendant breached, he was injured by the defendant's violation of CUTPA, and the defendant's conduct caused him emotional distress.   Additionally, the plaintiff argues that the issues in the present action were not addressed by the dissolution decision, and that his claim was not assigned by the dissolution court.   The defendant argues that the plaintiff does not have a specific, personal and legal interest in this proceeding because the dissolution court assigned any interest in the action to Tyler.

“[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter.”  (Internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008).  “The question of standing implicates a court's subject matter jurisdiction ․ [A] court does not have subject matter jurisdiction over claims brought by persons who do not have standing ․ Moreover, concerns regarding subject matter jurisdiction implicate the court's fundamental authority and may properly be raised and decided by the court sua sponte.”  (Citations omitted;  internal quotation marks omitted.)   Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 90-91, 971 A.2d 1 (2009).

“Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] 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.”  LaBow v. LaBow, 115 Conn.App. 419, 425, 973 A.2d 127, cert. denied, 293 Conn. 918, 979 A.2d 489 (2009).  “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 112, 967 A.2d 495 (2009).

There is no question that the plaintiff's ex-wife, Tyler, possesses the sole interest in the South Washington Street property.   The plaintiff's argument that the dissolution proceeding awarded only the proceeds from litigation regarding the property is misplaced.   In addition to awarding any proceeds, the dissolution decision, which was affirmed by the Appellate Court, clearly awarded all rights in the property and insurance policy to Tyler.2  Further, the order awarded any interest that the plaintiff may have in litigation involving the property to Tyler.   In fact, the plaintiff himself has noted the language in the dissolution decision that “assign[s] to the wife any interest the husband may have in any litigation involving the property.”   Plaintiff's Brief in Response to Court's Order of December 4, 2009, p.4;  Tyler v. Tyler, Superior Court, judicial district of Hartford, Docket No. FA 06 4024421 (July 2, 2008, Simon, J.).   It is clear from the dissolution decision that the court intended to award Tyler both the proceeds and the right to pursue any claims regarding the property.

All four counts of the plaintiff's complaint arise out of the insurance policy issued by the defendant to cover the South Washington Street property.   Allowing any of these claims to go forward would prevent Tyler from resolving her differences with the defendant property insurer at the present time.3  The scope and breadth of Judge Simon's order was not challenged by the plaintiff in his appeal of the dissolution decision.

This court takes note of the final lines of the dissolution proceedings.  “For the defendant this is not about what is fair and equitable.   To him this is the opportunity to destroy his wife;  to punish her for wanting a divorce;  to show her that he cannot be challenged;  to intimidate her into submission;  to berate her and to bring about her financial ruin.”  Tyler v. Tyler, Superior Court, judicial district of Hartford, Docket No. FA 06 4024421 (July 2, 2008, Simon, J.).   This is another chapter in the plaintiff's attempt to use the legal system to inflict pain on his ex-wife.   The plaintiff no longer has an interest in the property and thus has no standing to bring this claim.   The plaintiff may no longer speak for his ex-wife on this issue.   Accordingly, the motion to dismiss is granted.

CONCLUSION

For all of the above reasons, the motion to dismiss is granted.   All interest in any litigation involving the South Washington Street property was awarded to Tyler in prior litigation in which the plaintiff was a participant.   Accordingly, the plaintiff has no standing to bring this action.

The Court

Cosgrove, J.

FOOTNOTES

FN1. In the declaratory judgment action, the property is referred to as “29 South Washington Street, East Lyme, Connecticut.”   In this action, however, the property is referred to with the Niantic address.   Additionally, the property is referred to on the insurance policy by the Niantic address.   Regardless, it is undisputed that the properties are one in the same..FN1. In the declaratory judgment action, the property is referred to as “29 South Washington Street, East Lyme, Connecticut.”   In this action, however, the property is referred to with the Niantic address.   Additionally, the property is referred to on the insurance policy by the Niantic address.   Regardless, it is undisputed that the properties are one in the same.

FN2. The plaintiff argues that “commonsense dictates that divorce courts do not decide the types of issues and claims raised in this civil action.”   Plaintiff's Brief in Response to Court's Order of December 4, 2009, p. 4. The court disagrees.  “The Superior Court, pursuant to General Statutes 51-164t and Practice Book 2, has been divided into four divisions:  family, civil, criminal and housing ․ The evident purpose of the statutes and rules relating to the divisions of the Superior Court was not to impose any jurisdictional limitation on judges but to achieve greater efficiency in the administration of the judicial department.”  (Citations omitted.)   Savage v. Aronson, 214 Conn. 256, 262, 571 A.2d 696 (1990)..FN2. The plaintiff argues that “commonsense dictates that divorce courts do not decide the types of issues and claims raised in this civil action.”   Plaintiff's Brief in Response to Court's Order of December 4, 2009, p. 4. The court disagrees.  “The Superior Court, pursuant to General Statutes 51-164t and Practice Book 2, has been divided into four divisions:  family, civil, criminal and housing ․ The evident purpose of the statutes and rules relating to the divisions of the Superior Court was not to impose any jurisdictional limitation on judges but to achieve greater efficiency in the administration of the judicial department.”  (Citations omitted.)   Savage v. Aronson, 214 Conn. 256, 262, 571 A.2d 696 (1990).

FN3. The defendant insurer represented during oral argument of these motions that it was ready to pay the policy proceeds to Tyler once this litigation was resolved..FN3. The defendant insurer represented during oral argument of these motions that it was ready to pay the policy proceeds to Tyler once this litigation was resolved.

Cosgrove, Emmet L., J.

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