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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 thirdparty 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-16-6019558-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 distinguish 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 defendant’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 rendered 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 Allstate 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 October, 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. Allstate 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 . . . Hilario’s Truck Center, LLC v. [Rinaldi, supra, Superior

Court, Docket No. CV-16-6019558-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 company 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 person is a foreseeable beneficiary of a contract is not

sufficient for him to claim rights as a [third-party] beneficiary.’’ (Internal quotation marks omitted.) Id., 608.

Ultimately, this court concluded that neither the language of the insurance contract nor public policy supported the claim that a towing company, under such

circumstances, was a third-party beneficiary of an automobile 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-16-6019558-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 opinion 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 [present] 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 challenging 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 precedent 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-16-6019558-S, the defendant, Nationwide General Insurance Company (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 thirdparty 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-16-6019558-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 nonconsensual] 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 compared 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.