DAB Three, LLC v. Landamerica Fin. Grp., Inc.

183 Conn.App. 307

192 A.3d 510

DAB THREE, LLC

v.LANDAMERICA FINANCIAL GROUP, INC., et al.

AC 39834

Appellate Court of Connecticut.

Argued April 10, 2018

Officially released July 10, 2018

Laurence V. Parnoff, Stratford, with whom, on the brief, was Laurence V. Parnoff, Jr., for the appellant (plaintiff).

Jason A. Buchsbaum, Bridgeport, with whom were Jonathan S. Bowman and, on the brief, Barbara M. Schellenberg, for the appellees (named defendant et al.).

Sheldon, Keller and Prescott, Js.

SHELDON, J.

In this action arising from the alleged breach of contract for the procurement of an environmental insurance policy, the plaintiff, DAB Three, LLC, appeals from the judgments rendered in favor of the defendants LandAmerica Financial Group, Inc. (LFG), LandAmerica Environmental Insurance Service Agency, Inc. (LEISA), Sandra Fitzpatrick, and Debra Moser.¹

The plaintiff claims that the trial court erred (1) in dismissing its breach of contract claim against LFG for lack of subject matter jurisdiction, and (2) in rendering summary judgment in favor of LEISA, Fitzpatrick and Moser on the plaintiff's breach of contract claims against them. We agree with the plaintiff that the summary judgment rendered in favor of LEISA cannot stand. We disagree, however, with the plaintiff's claims of error as to the dismissal of its claim against LFG and the rendering of summary judgments in favor of Fitzpatrick and Moser. Accordingly, we reverse in part and affirm in part the judgments of the trial court.

The following procedural history is relevant to the plaintiff's claims on appeal. In 2006, the plaintiff commenced this action against the following seven defendants: LFG, LEISA, Lawyers Title Corporation (LTC), Lawyers Title Insurance Corporation (LTIC), Lawyers Title Environmental Insurance Service Agency, Inc. (LTEISA), Fitzpatrick, and Moser. The plaintiff claimed that the defendants were all licensed insurance brokers or agents with whom it contracted for the procurement of a legal liability insurance policy that would protect the plaintiff against risk of loss for environmental and pollution cleanup and remediation costs that it might incur in relation to as yet undiscovered environmental hazards that might later be found on a parcel of real property it intended to purchase for the purpose of resale. After the plaintiff purchased the parcel, it discovered certain previously unknown and preexisting solid waste disposal areas on it. The plaintiff subsequently filed a claim with the insurer for the cost of cleanup and remediation of those areas, but its claim was denied on the ground that it was not covered by the policy. The plaintiff's two count complaint alleged breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq.

On March 10, 2008, the trial court, Arnold, J. , rendered summary judgment in favor of all seven defendants with respect to the CUTPA count, which ruling is not contested in this appeal.

On July 31, 2015, the defendants filed a joint motion to dismiss the plaintiff's claim of breach of contract against LFG for lack of subject matter jurisdiction. In support of their motion, the defendants alleged (1) that LFG had filed for bankruptcy in 2008; (2) that LFG had listed the plaintiff's claim against it in this lawsuit in its schedule of assets and liabilities; (3) that the plaintiff had failed, despite notice of the bankruptcy, to file a proof of claim in the bankruptcy case with respect to its present claim; and thus (4) that the plaintiff's present claim against LFG was extinguished, depriving the court of subject matter jurisdiction over it, when LFG was granted a discharge in the bankruptcy case. On September 29, 2015, the trial court issued a memorandum of decision granting the motion to dismiss with respect to LFG.

On April 13, 2016, the remaining defendants filed a joint motion for summary judgment as to the plaintiff's claim of breach of contract against them. The defendants argued that they were entitled to summary judgment on that claim because "(1) the individual defendants were employees and agents acting on behalf of a disclosed principal and cannot be held liable for corporate contracts as a matter of law; (2) [the] plaintiff was provided exactly what it requested by way of an environmental insurance policy and there was no contract for a specific result; and (3) if there is a contract, there can be no privity of contract between [the] plaintiff and any defendant other than [LTEISA], the only defendant that brokered the policy at issue." On October 14, 2016, the trial court, Wenzel, J ., granted the motion for summary judgment as to all defendants except LTEISA. The court ruled, more particularly, that, on the basis of the evidence submitted to it, there was no genuine issue of material fact that LTEISA was the "lone broker" on the policy, and thus it was the only corporate defendant that could properly be sued for breach of contract in relation to the policy. The court further found, on the basis of the submitted evidence, that the individual defendants were, at all times, "working on behalf of LTEISA to procure the policy for the plaintiff ... and [a]s to the corporate defendants other than LTEISA, [the defendants] have established that none of them ever made an agreement to provide brokerage services to [the] plaintiff and that they were not involved in procuring or brokering the policy." On November 22, 2016, the plaintiff filed this appeal from the judgment of dismissal as to LFG and the summary judgments rendered in favor of LEISA, Fitzpatrick and Moser.

On November 8, 2016, counsel for the defendants filed a motion to withdraw their appearance for LTEISA, the only remaining defendant, on the ground that since LTEISA had changed its name to LEISA in 1999, "LTEISA no longer exists." On that basis, counsel represented that they "no longer ha[d] a client as to LTEISA." On December 5, 2016, the court, Bellis, J. , granted the motion to withdraw. On December 7, 2016, the plaintiff amended this appeal to include a challenge to the granting of counsel's motion to withdraw their appearance for LTEISA.

On December 14, 2016, the court issued an order dismissing the plaintiff's claim against LTEISA because the plaintiff's counsel had indicated on the record that it was not going forward with trial against that nonexisting entity. This court thereafter dismissed the plaintiff's appeal challenging the granting of the motion to withdraw on the ground that that claim was rendered moot when the plaintiff opted not to proceed to trial against LTEISA and the claims against LTEISA were dismissed.

On appeal, the plaintiff challenges the judgment dismissing its claim against LFG for lack of subject matter jurisdiction, and the summary judgments rendered in favor of LEISA and the individual defendants. We address each of the plaintiff's claims in turn.

I

We begin with the plaintiff's challenge to the judgment dismissing its claim against LFG on the ground that the court lacked subject matter jurisdiction because that claim had been extinguished by the bankruptcy discharge. "A determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Beck & Beck, LLC v. Costello , 178 Conn. App. 112, 116, 174 A.3d 227 (2017), cert. denied, 327 Conn. 1000, 176 A.3d 555 (2018).

The plaintiff does not challenge the factual basis upon which the trial court dismissed its claim against LFG—that LFG filed for bankruptcy, that LFG listed the plaintiff's claim against it in its bankruptcy filing, that the plaintiff, despite notice of the bankruptcy, failed to file a proof of claim as to its present claim with the United States Bankruptcy Court, and thus that the plaintiff's claim against LFG was extinguished upon discharge by the Bankruptcy Court. Instead, the plaintiff argues that the trial court's legal determination that it lacked subject matter jurisdiction by reason of LFG's discharge "is contrary to both applicable law set out in the court's holding in Lightowler v. Continental Ins. Co. , 255 Conn. 639, 645–46, 769 A.2d 49 (2001)... [due to] the fact of the potential liability of a reinsurer and purchaser of [LFG]'s stock." The plaintiff cited Lightowler in the trial court in opposition to the motion to dismiss its claim against of LFG, but the trial court rejected that claim, reasoning as follows: "[T]he plaintiff's claim that it should be able to recover against [LFG's] insurance carrier based on the holding in Lightowler is incorrect. A significant distinction between Lightowler and the present case is that in Lightowler , the defendant's insurer was also a named defendant in the lawsuit. There is no insurer for the defendant [LFG] who has been named as a codefendant in this lawsuit. Additionally, the plaintiff cannot identify any insurer or assure the court that such insurance coverage is even available." We agree with the trial court's analysis.

Lightowler was a legal malpractice action brought against the plaintiff's former attorney and that attorney's malpractice insurance carrier. The Supreme Court held that the plaintiff could maintain her action against both parties despite the bankruptcy of the attorney "solely for the purpose of obtaining a judgment against [the plaintiff's former attorney] as a necessary prerequisite to seeking recovery against the [codefendant insurance company]—without subjecting [the plaintiff's former attorney] to any exposure to personal liability under the policy." Lightowler v. Continental Ins. Co. , supra, 255 Conn. at 651, 769 A.2d 49. In so holding, the court in Lightowler explained: "The discharge of a debt ... triggers the operation of the provisions of 11 U.S.C. § 524......