Salinas v. HDI-Gerling America Insurance Co. et al

Filing 15

ORDER granting 10 Motion to Dismiss. The Clerk is instructed to close this case. Signed by Judge Warren W. Eginton on 6/7/18. (Ladd-Smith, I.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JESSICA SALINAS,
Plaintiff,
v.
HDI-GERLING AMERICA
INSURANCE CO. and
ENERGI INSURANCE SERVICES, INC.,
Defendants.

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3:17-cv-01755-WWE

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO DISMISS
Plaintiff Jessica Salinas brings claims of breach of contract, breach of implied
covenant of good faith and fair dealing, violation of the Connecticut Unfair Insurance
Practices Act, and violation of the Connecticut Unfair Trade Practices Act against
defendants HDI-Gerling America Insurance Co. and Energi Insurance Services, Inc.
This action stems from an underlying personal injury suit by plaintiff against
defendants’ insured, who allegedly crashed his work truck into plaintiff’s vehicle causing
serious injury. Plaintiff asserts that she is subrogated to all of the insured’s rights
against defendants, his insurers, by virtue of a stipulated judgment that was entered in
the underlying action.
Defendants have moved to dismiss for lack of standing and failure to state a
claim. For the following reasons, defendants’ motion will be granted.
BACKGROUND
Plaintiff suffered serious injury when her vehicle was struck by a utility truck
operated by Alliance Power Group LLC employee Eric McLeod. Plaintiff commenced
suit in the underlying action, where defendants allegedly refused to provide insurance
coverage, arguing McLeod was not acting within the scope of his employment at the
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time of the collision. Plaintiff asserts that McLeod agreed to assign his interests to
pursue a bad faith claim against the insurance companies on the basis that the carriers
should have agreed to indemnify McLeod for any damages arising out of the accident.
DISCUSSION
At the outset, defendants argue that plaintiff lacks standing to pursue her
derivative claims for failure to establish the prerequisite underlying final judgment.
Conn. Gen. Stat. § 38a-321 provides in relevant part:
Upon the recovery of a final judgment . . . for loss or damage on account of
bodily injury or death or damage to property, if the defendant in such action
was insured against such loss or damage at the time when the right of action
arose and if such judgment is not satisfied within thirty days after the date
when it was rendered, such judgment creditor shall be subrogated to all the
rights of the defendant and shall have a right of action against the insurer
to the same extent that the defendant in such action could have enforced his
claim against such insurer had such defendant paid such judgment.
Defendants contend that the “stipulation of judgment” filed by McLeod in the
underlying action was denied by the Hon. James Bentivegna on September 18, 2017,
[Underlying Action Docket Entry No. 125.10], so no judgment has entered against
McLeod in favor of plaintiff in the underlying action.
Plaintiff responds, without support, that the stipulated judgment “is sufficient to
amount to standing” despite that the judgment was not ultimately entered by the
Superior Court. Plaintiff argues that stipulated judgments are generally conclusive and
binding. However, the Court is not persuaded that a stipulated judgment denied by the
Connecticut Superior Court should have the same effect as a judgment accepted and
entered by a court.
Plaintiff next argues that the stipulated judgment was “erroneously withdrawn as
it was without the consent of the contracting party, McLeod.” This Court will not second

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guess the propriety of the Superior Court’s order denying the judgment or allowing
withdrawal of the stipulation.
Third, plaintiff argues that her claims are not purely derivative because she also
alleges direct injury. Plaintiff’s direct injury is alleged to be that “plaintiff had a binding
contract with [McLeod] in the Underlying Action (in the form of the stipulated
judgment), which the plaintiff contends was breached without proper consent from
McLeod.” Plaintiff asserts that defendants improperly interfered with that contractual
agreement, which directly harmed plaintiff. Nevertheless, plaintiff has not alleged a tort
cause of action based on interference with contractual relations. As discussed above,
she cannot circumvent the Connecticut direct action statute’s final judgment
requirement by collaterally attacking the Superior Court’s decision to deny favorable
judgment. Plaintiff’s argument that a favorable final judgment would have issued but
for improper interference by defendants is unavailing.
Finally, plaintiff argues that she is in privity with defendants based upon the
assignment of rights arising out of the stipulated judgment. Once again, this Court will
not recognize a stipulation that was withdrawn or a motion for judgment that was
denied by the presiding court. Here, plaintiff filed a motion for judgment based upon
the stipulation that was subsequently withdrawn. The Superior Court denied that
motion, so there was no assignment of rights that established privity with defendants.
Defendants’ motion to dismiss will be granted.

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CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is GRANTED. The
Clerk is instructed to close this case.
Dated this 7th day June, 2018, at Bridgeport, Connecticut.

/s/Warren W. Eginton
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE

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