Barbara Mathews v. Charles Blauvelt (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE [# 108] AND MOTION TO STRIKE [# 112]

FACTS

On February 11, 2010, the plaintiff, Barbara Mathews, filed a two-count complaint against the defendants, Charles Blauvelt and Mark Leone, for personal injuries allegedly sustained as the result of an automobile collision.   In her complaint, the plaintiff alleges that on or about February 8, 2008, the plaintiff was operating her vehicle on Boston Post Road in Waterford, Connecticut, when her vehicle was struck from behind by an automobile operated by Blauvelt, and owned by Leone.   The plaintiff's first count sounds in negligence as to Blauvelt, and vicarious liability as to Leone.   The plaintiff's second count alleges a claim for statutory recklessness pursuant to General Statutes § 14-295 against both defendants.

On April 9, 2010, the defendants filed an apportionment complaint to apportion in the plaintiff's insurance carrier, The Hartford Insurance Company, pursuant to General Statutes § 52-102b.¹  At the time of the collision, the plaintiff had an insurance policy with the apportionment defendant that included uninsured motorist coverage.   In their apportionment complaint, the defendants allege that just prior to the collision between the parties, the plaintiff quickly stopped her vehicle to avoid a collision with an unidentified driver who had unexpectedly turned in front of her, thereby causing the defendants to strike the rear of the plaintiff's car.   The defendants further allege that the injuries and losses sustained by the plaintiff were the direct and proximate result of the negligence of the unidentified driver, and therefore, the apportionment defendant, as surrogate for the unidentified driver, should be liable to the extent that the unidentified driver is liable.

On May 11, 2010, the plaintiff filed a motion to strike the defendants' apportionment complaint, accompanied by a memorandum of law in support of her motion.   On May 28, 2010, the apportionment defendant also filed a motion to strike the defendants' apportionment complaint, accompanied by a memorandum of law in support of its motion.   That same date, the defendants filed an objection to the plaintiff's motion to strike.   The plaintiff filed a corrected memorandum in support of her motion to strike on June 1, 2010.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

The plaintiff and the apportionment defendant move to strike the defendants' apportionment complaint on the ground that the defendants lack privity of contract with the apportionment defendant, and the defendants cannot require the apportionment defendant to stand in the shoes of an unidentified driver who was not named a defendant by the plaintiff in her complaint.   The defendants counter that § 52-102b authorizes an apportionment claim against the apportionment defendant, and that the apportionment complaint is proper pursuant to the Supreme Court's decision in Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001).

While this issue has not yet been resolved by our appellate courts, it has been discussed in several Superior Court decisions.   In Leitkowski v. Safeco Ins. Co., Superior Court, judicial district of New London, Docket No. CV 03 0566685 (July 29, 2004, Hurley, J.T.R.) (37 Conn. L. Rptr. 575, 575), the court denied the apportionment defendant's motion to strike the apportionment complaint, endorsing “a carrier's right to apportionment of liability [as] established by General Statutes [§ ]52-572h(c), and ․ supported by [Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 718].”  (Internal quotation marks omitted.)   More recent Superior Court decisions, however, have distinguished the Collins decision from cases wherein a defendant seeks apportionment against the plaintiff's uninsured motorist carrier, and neither the carrier, nor the uninsured motorist, have been named as defendants by the plaintiff in the underlying action.

“In Collins [v. Colonial Penn Ins. Co., supra, 257 Conn. 718] the plaintiff alleged that both the defendant, the driver of the vehicle that struck her vehicle, and an unidentified driver, whose vehicle struck the defendant's vehicle, were negligent.   She sued both the defendant and her automobile liability insurer as a surrogate for the unidentified driver but settled with her insurer before trial.   The defendant requested that the trial court instruct the jury on apportioning liability and damages between it and the insurer, and the trial court refused to do so.   The Supreme Court held that this was improper, because it would be inequitable and contrary to the spirit underlying § 52-572h, to allow a plaintiff who does have uninsured motorist coverage and has collected an amount pursuant to a settlement in an automobile accident involving multiple tortfeasors, to deny application of the [principle] ․ that each individual tortfeasor pay its fair share or portion of damages sustained ․

“Collins is, however, factually and legally distinguishable from the present case.   The court concluded that there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the [uninsured] carrier is named in the complaint to act as the unidentified driver's surrogate.   As this court noted in Massaro [v. Craig, Superior Court, judicial district of New Haven, Docket No. CV 06 5007556 (July 27, 2009, Wilson, J.) (48 Conn. L. Rptr. 314) ], citing Santana [v. Tom, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 07 5002545 (November 17, 2008, Rubinow, J.) (46 Conn. L. Rptr. 665) ], [t]he critical distinction between the present case and Collins is that the named plaintiff did not serve a complaint upon his uninsured motorist carrier, or seek to recover damages from an unidentified driver directly or through a surrogate by naming that unidentified driver as a defendant in his original ․ complaint ․ The surrogate analogy relied on by the Collins court is fundamentally inapplicable in this situation because the plaintiff has not identified a tortfeasor for whom [the insurer] might be contractually liable.   Under Collins, a defendant cannot bring an apportionment complaint against an uninsured motorist carrier when neither the carrier nor an unidentified driver has been named as a defendant in the underlying complaint:  in such a case, where the plaintiff has not identified negligent conduct for which the uninsured motorist carrier may be contractually liable, § 52-572h(o) functions to preclude apportionment of liability on any basis other than negligence.   Without the surrogacy hook, the defendant's apportionment claim loses its tortious element and hybrid nature, thus rendering it inappropriate for apportionment.”  (Emphasis in original;  internal quotation marks omitted.)   DiPaolo v. Rocco, Superior Court, judicial district of New Haven, Docket No. CV 09 5028530 (April 6, 2010, Wilson, J.) [49 Conn. L. Rptr. 591].   As noted in the DiPaolo decision, other Superior Courts have reached the same conclusion.   See Massaro v. Craig, supra, 48 Conn. L. Rptr. 314;  Santana v. Toni, supra, 46 Conn. L. Rptr. 665.

In the present case, the plaintiff has not named the apportionment defendant or the unidentified driver as defendants in the underlying claim.   Pursuant to the aforementioned rationale provided in recent Superior Court decisions, the court finds the defendants may not enforce the plaintiff's right to uninsured motorist coverage under the subject policy against the apportionment defendant, and as a result, the defendants' apportionment complaint is legally insufficient.   Therefore, both the plaintiff's motion to strike and the apportionment defendant's motion to strike are granted.

CONCLUSION

Based on the foregoing, the court hereby grants the motions to strike the defendants' apportionment complaint.

Martin, J.

FOOTNOTES

FN1. Section 52-102b provides in relevant part:  “A defendant in any civil action to which [General Statutes § ]52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.”  Section 52-572h(c) in turn provides:  “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”  Section 52-572h(o) provides in relevant part:  “Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including ․ liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence ․”.  FN1. Section 52-102b provides in relevant part:  “A defendant in any civil action to which [General Statutes § ]52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.”  Section 52-572h(c) in turn provides:  “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”  Section 52-572h(o) provides in relevant part:  “Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including ․ liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence ․”

Martin, Robert A., J.