Hilario Truck Center, LLC v. Kohn

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HILARIO TRUCK CENTER, LLC v.
KEVIN S. KOHN ET AL.
(AC 41429)
DiPentima, C. J, and Lavine and Harper, Js

Syllabus

The plaintiff towing company sought to recover damages from the defendant
insurance company, A Co., and its insured, the defendant K, arising out
of towing services that the plaintiff performed following a motor vehicle
accident involving K’s vehicle. In count three of the complaint, the
plaintiff alleged, inter alia, that A Co. was liable to it for money damages
because it was a third-party beneficiary of K’s insurance contract with
A Co. Thereafter, A Co. filed a motion to dismiss count three on the
ground that the plaintiff lacked standing because it was not a third-
party beneficiary to the insurance policy. In granting A Co.’s motion to
dismiss, the trial court adopted the decision in Hilario’s Truck Center,
LLC v. Rinaldi, Superior Court, judicial district of Danbury, Docket No.
CV-XX-XXXXXXX-S (October 17, 2016), which involved the same plaintiff
as this case. Two months before the plaintiff filed its appellate brief in
this case, this court affirmed the trial court’s decision in Rinaldi and
held that, under circumstances nearly identical to those in the present
case, the plaintiff towing company was not an intended third-party
beneficiary of an automobile insurance policy between an insurance
company and the insured, and it therefore lacked standing to bring an
action against the insurance company. On the plaintiff’s appeal to this
court, held that the plaintiff could not prevail on its claim that the trial
court improperly dismissed the third count of the complaint against A
Co.; the plaintiff’s briefing on appeal did not cite to, address or distin-
guish the present case from either the Rinaldi decision adopted by the
trial court, which formed the basis of its decision dismissing count three,
or this court’s prior decision affirming Rinaldi, which was binding on
this court, and the plaintiff, therefore, failed to meet its burden of
demonstrating that the trial court committed error by granting the defen-
dant’s motion to dismiss.
Argued March 6–officially released June 4, 2019

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, Mintz, J., granted the motion to dismiss filed by
the defendant Allstate Insurance Company and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Raymond J. Kelly, for the appellee (defendant All-
state Insurance Company).
Opinion

DiPENTIMA, C. J. The plaintiff, Hilario Truck Center,
LLC, appeals from the judgment of dismissal of the
third count of its operative complaint following the
granting of the motion to dismiss filed by the defendant
Allstate Insurance Company (Allstate).1 The plaintiff
argues that the court erred when it concluded that the
plaintiff lacked standing to bring a claim as a third-party
beneficiary against Allstate pursuant to an automobile
insurance policy issued to the defendant Kevin E. Kohn.
We affirm the judgment of the trial court.
The plaintiff commenced the present action in Octo-
ber, 2015. In its operative complaint, the plaintiff alleged
the following facts.2 On October 23, 2014, the defendant
Kevin S. Kohn was operating a 1995 Buick in Newtown.
The vehicle, owned by his father, Kevin E. Kohn,
swerved off the road and came to rest on the property
of Cliff Beers and Maryellen Beers. Kevin E. Kohn called
the plaintiff to remove the vehicle from the property and
tow the vehicle to its facility. The plaintiff successfully
removed the vehicle from the Beers’ property.
The plaintiff filed a three count complaint against
Kevin S. Kohn, Kevin E. Kohn and Allstate. The first
and second counts, sounding in breach of contract and
unjust enrichment, were directed against Kevin S. Kohn
and Kevin E. Kohn.3 The third count, directed against
Allstate, alleged that Kevin E. Kohn was the named
insured of an insurance policy issued by Allstate. The
plaintiff further claimed the insurance policy obligated
Allstate to make payments to a third party for damages
arising from the use of an automobile covered under
the policy and that Allstate had not done so.4 Finally,
the plaintiff alleged that it was due payment for its
towing services as a third-party beneficiary pursuant
to the insurance policy and that Allstate had failed to
pay the plaintiff.
On August 22, 2017, Allstate moved to dismiss the
third count of the plaintiff’s operative complaint. All-
state argued that the plaintiff was not a third-party
beneficiary of its insurance policy issued to Kevin E.
Kohn. Allstate reasoned, therefore, that the plaintiff
lacked standing. In support of this motion, Allstate
relied on the judgment rendered by the court, Truglia,
J., in Hilario’s Truck Center, LLC v. Rinaldi, Superior
Court, judicial district of Danbury, Docket No. CV-16-
6019558-S (October 17, 2016), aff’d, 183 Conn. App. 597,
193 A.3d 683, cert. denied, 330 Conn. 925, 194 A.3d
776 (2018).5
On December 18, 2017, the court granted Allstate’s
August 22, 2017 motion to dismiss, stating: ‘‘Granted.
The court adopts Judge Truglia’s ruling in . . . Hilar-
io’s Truck Center, LLC v. [Rinaldi, supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S].’’ This appeal
followed.
In Hilario’s Truck Center, LLC v. Rinaldi, 183 Conn.
App. 597, 598, 193 A.3d 683, cert. denied, 330 Conn. 925,
194 A.3d 776 (2018), this court specifically held that,
under nearly identical circumstances, a towing com-
pany is not an intended third-party beneficiary of an
automobile insurance policy between an insurance
company and the insured.6 This court noted that ‘‘[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.’’ Id., 603–604.
Additionally, this court stated that ‘‘the fact that a per-
son is a foreseeable beneficiary of a contract is not
sufficient for him to claim rights as a [third-party] bene-
ficiary.’’ (Internal quotation marks omitted.) Id., 608.
Ultimately, this court concluded that neither the lan-
guage of the insurance contract nor public policy sup-
ported the claim that a towing company, under such
circumstances, was a third-party beneficiary of an auto-
mobile insurance contract. Id., 606–12. As a result, the
towing company lacked standing to maintain a direct
action against the insurance company. Id., 612.
In its appellate brief in the present case, the plaintiff
failed to mention, distinguish, or address in any way
Hilario’s Truck Center, LLC v. Rinaldi, supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S, which served as
the basis of the decision of the trial court to grant
the defendant’s motion to dismiss in the present case.
Additionally, the plaintiff overlooked this court’s opin-
ion in Hilario’s Truck Center, LLC v. Rinaldi, supra,
183 Conn. App. 597, which was issued two months prior
to the filing of the plaintiff’s appellate brief. The plaintiff
did not file a reply brief nor did it provide any notice
pursuant to Practice Book § 67-10 addressing the
Rinaldi case.7 As stated succinctly in the defendant’s
brief, the plaintiff, in its appellate brief, ‘‘has not even
attempted to distinguish [Hilario’s Truck Center, LLC
v. Rinaldi, supra, 183 Conn. App. 597], from the [pre-
sent] case.’’8
‘‘It is a fundamental principle of appellate review that
our appellate courts do not presume error on the part
of the trial court. . . . Rather, we presume that the
trial court, in rendering its judgment . . . undertook
the proper analysis of the law and the facts. . . . .
[T]he trial court’s ruling is entitled to the reasonable
presumption that it is correct unless the party challeng-
ing the ruling has satisfied its burden demonstrating the
contrary.’’ (Citation omitted; internal quotation marks
omitted.) Reinke v. Sing, 186 Conn. App. 665, 700, 201
A.3d 404 (2018). By declining to address the basis of
the trial court’s decision, as well as the controlling prec-
edent from this court, the plaintiff has not met its burden
of demonstrating error in the granting of the defendant’s
motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its complaint, the plaintiff also named Kevin S. Kohn and Kevin E.
Kohn (Kohns) as defendants. On February 14, 2018, the court rendered
judgment against the Kohns in the amount of $5000. The Kohns are not
parties to this appeal.
2
‘‘When a . . . court decides a jurisdictional question raised by a pretrial
motion to dismiss, it must consider the allegations of the complaint in their
most favorable light. . . . In this regard, a court must take the facts to be
those alleged in the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most favorable to the
pleader. . . . The motion to dismiss . . . admits all facts which are well
pleaded, invokes the existing record and must be decided upon that alone.
. . . [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.) Ion Bank v. J.C.C. Custom Homes, LLC, 189 Conn. App. 30, 37–38,
A.3d (2019).
3
The complaint alleged that the Kohns had failed to pay the plaintiff for
its services in recovering the vehicle from the Beers’ property and that,
therefore, there had been a breach of contract, or, in the alternative, the
Kohns had been unjustly enriched.
4
Specifically, the plaintiff alleged: ‘‘Allstate’s third party liability insurance
coverage policy with defendant, Kevin E. [Kohn] states: Allstate will pay
for damages an insured person is legally obligated to pay because of bodily
injury or property damage meaning . . . 2. [D]amage to or destruction of
property, including loss of use. Under these coverages, your policy protects
an insured person from liability for damages on account of accidents arising
out of the ownership, maintenance or use, loading or unloading of the auto
we insure.’’ (Emphasis omitted.)
5
In Hilario’s Truck Center, LLC v. Rinaldi, supra, Superior Court, Docket
No. CV-XX-XXXXXXX-S, the defendant, Nationwide General Insurance Com-
pany (Nationwide), moved to dismiss counts one and three of the complaint
filed by Hilario’s Truck Center, LLC (Hilario’s), on the basis of lack of
standing. Specifically, the complaint had alleged that Hilario’s was a third-
party beneficiary of the insurance policy between Nationwide and the named
defendant, Laura Rinaldi.
Judge Truglia rejected the arguments regarding Hilario’s claim that it was
a third-party beneficiary of the insurance policy. Accordingly, the court
concluded that Hilario’s lacked standing and dismissed counts one and three
of its complaint. Judge Truglia’s memorandum of decision subsequently was
affirmed by this court. See Hilario’s Truck Center, LLC v. Rinaldi, supra,
183 Conn. App. 612.
6
The plaintiff in the present case was also the plaintiff in Hilario’s Truck
Center, LLC v. Rinaldi, supra, 183 Conn. App. 597, and was represented
by the same attorney.
7
The following colloquy occurred at oral argument before this court:
‘‘[The Court]: I’m just curious why your brief doesn’t even mention the
case that was relied on by the trial court . . . and affirmed by this court
in 2018, [Hilario’s Truck Center, LLC v. Rinaldi, supra, Superior Court,
Docket No. CV-XX-XXXXXXX-S] it’s a pertinent authority. Whether it’s in your
favor or not, it’s pertinent authority.
‘‘[The Plaintiff’s Counsel]: No, no. I understand that. And I think it should
have, I think it should have, Your Honor, that’s my fault for not addressing
it and it wasn’t a conscious decision to not address it. I took the position
that the facts [in] this case were different because it was a different contract,
it was a different situation with a consensual tow rather than [a nonconsen-
sual] tow.’’
8
At oral argument before this court, the plaintiff’s counsel made efforts
to distinguish the facts of the present case from those in Hilario’s Truck
Center LLC v. Rinaldi, supra, 183 Conn. App. 597. We decline to consider
such arguments when raised for the first time at oral argument. See Sun
Val, LLC v. Commissioner of Transportation, 330 Conn. 316, 336–37 n.10,
193 A.3d 1192 (2018); Filosi v. Electric Boat Corp., 330 Conn. 231, 235 n.4,
193 A.3d 33 (2018); see also Ryan v. Cassella, 180 Conn. App. 461, 475, 184
A.3d 311 (2018) (well established that claims on appeal must be adequately
briefed and cannot be raised for first time on appeal).
Even if we were to consider the arguments raised by the plaintiff’s counsel
that the insurance policy in this case contains broader language when com-
pared to the terms of the policy in Hilario’s Truck Center, LLC v. Rinaldi,
supra, 183 Conn. App. 597, and that a consensual tow occurred here, as
opposed to a nonconsensual tow, we would not be persuaded that these
differences warrant a different result.