Progressive Casualty Insurance v. DiGangi

492 A.2d 548, 4 Conn. App. 137, 1985 Conn. App. LEXIS 983
CourtConnecticut Appellate Court
DecidedMay 21, 1985
Docket3129
StatusPublished
Cited by37 cases

This text of 492 A.2d 548 (Progressive Casualty Insurance v. DiGangi) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Progressive Casualty Insurance v. DiGangi, 492 A.2d 548, 4 Conn. App. 137, 1985 Conn. App. LEXIS 983 (Colo. Ct. App. 1985).

Opinion

Spallone, J.

The plaintiff, Progressive Casualty Insurance Company (Progressive), insured the decedent, James Lawrence, under a motorcycle insurance policy which provided uninsured motorist coverage. Progressive brought this action for a declaratory judgment as to whether, inter alia, its policy with the decedent provided underinsurance coverage. The defendant Marion Lawrence DiGangi, administratrix of the decedent’s estate, moved to dismiss the action for lack of subject matter jurisdiction on the basis that the issues raised must be resolved by arbitration pursuant to General Statutes § 38-175C.1 The trial court granted the motion, and Progressive appeals from the judgment rendered upon the dismissal. We find no error, but on a ground different from that used by the trial court. See Neri v. Powers, 3 Conn. App. 531, 490 A.2d 528 (1985).

“Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981).” England v. Coventry, [139]*139183 Conn. 362, 364, 439 A.2d 372 (1981). A court does not truly lack subject matter jurisdiction if it is competent to entertain the action before it. Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 311, 478 A.2d 265 (1984).

When all parties having an interest in the subject matter of the complaint are parties or have been given reasonable notice of an action pursuant to General Statutes § 52-29,2 the Superior Court has subject matter jurisdiction to declare legal rights “whether or not further relief is or could be claimed.” England v. Coventry, supra. Subject matter jurisdiction over actions for declaratory judgment exists despite the availability or adequacy of other legal remedies. Id.; Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 359-60, 377 A.2d 1099 (1977). We therefore conclude that the trial court erred in dismissing this action for lack of subject matter jurisdiction.

Our further review of this case, however, reveals that the court was nonetheless correct in declining to entertain this action. The motion to dismiss filed by DiGangi was used to perform, in effect, the function of a motion to strike. Such a motion is the proper vehicle by which to question whether a court, despite its jurisdiction over the subject matter, can properly grant declaratory relief. England v. Coventry, supra; Connecticut Life & Health Guaranty Assn. v. Jackson, supra, 360. The record does not indicate that the impropriety of the use of a motion to dismiss in this manner was ever raised in the trial court. It was not made here. We shall therefore consider the case “as it was presented by the parties, overlooking the foregoing procedural short[140]*140comings and treating the motion to dismiss as sustainable under the same test as would have been applicable” if it had been a motion to strike. Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 713, 156 A.2d 146 (1959).

“Section 390 (c)3 of the Practice Book allows the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete. Connecticut Savings Bank v. First National Bark & Trust Co., [133 Conn. 403, 410, 51 A.2d 907 (1947)]. See Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979). Therefore a successful motion to strike an action for a declaratory judgment upon the ground of available alternative means of redress . . . must show that the court could not in the exercise of sound discretion permit the action to proceed. Connecticut Savings Bank v. First National Bank & Trust Co., supra, 410-11.” (Footnote added.) England v. Coventry, supra, 365.

In reviewing the granting of a motion to strike, we take the facts alleged in the complaint and construe them in a manner most favorable to the pleader. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980); Sheiman v. Lafayette Bark & Trust Co., 4 Conn. App. 39, 42, 492 A.2d 219 (1985). If facts could necessarily be implied and fairly proved under the allega[141]*141tions which would support a cause of action or a defense, the motion to strike must fail. See Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 492 A.2d 512 (1985).

The complaint in this case alleges that Progressive maintained a policy of motorcycle insurance which provided the decedent with $20,000 in uninsured motorist coverage; that its policy with the decedent did not provide underinsured motorist benefits; that the defendant The Criterion Insurance Company (Criterion) maintained a policy of automobile insurance with the decedent which provided $20,000 in underinsured coverage; and that on April 11, 1980, the decedent was killed, while riding his motorcycle, in an accident with Thomas Yorz. It further alleges that Yorz was covered by a liablility policy with a $20,000 limit; that Yorz’s insurer paid the decedent’s estate $20,000; and that the decedent’s estate submitted claims for underinsured motorist benefits with both Progressive and Criterion. By way of relief, Progressive seeks a declaratory judgment determining, first, whether under its policy the decedent’s estate is entitled to underinsured motorist benefits and, second, in the event that the estate is entitled to such benefits, whether its policy or Criterion’s is primary.

Pursuant to General Statutes § 38-175c, automobile insurance policies issued on or after October 1, 1971, which contain a provision for binding arbitration, must provide that the final determination of insurance coverage will be by arbitration. The intent of that statute “is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 42, 434 A.2d 304 (1980); American Motorists Ins. Co. v. Brookman, 1 [142]*142Conn. App. 219

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492 A.2d 548, 4 Conn. App. 137, 1985 Conn. App. LEXIS 983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/progressive-casualty-insurance-v-digangi-connappct-1985.