Jean Pierre Lesieur et al. v. Rand-Whitney Containerboard (2010)

MEMORANDUM OF DECISION RE MOTION TO IMPLEAD (NO. 131)

FACTS

On November 7, 2008, the plaintiffs, Jean Pierre Lesieur, Janet Lesieur and Devine Hydraulics, me, initiated the present action against the defendant, Rand-Whitney Containerboard Ltd. Partnership, for personal injuries allegedly sustained by Jean Pierre on December 13, 2007, at the defendant's plant in Montville, Connecticut.   The plaintiffs' complaint alleges that Jean Pierre fell approximately eighteen to twenty feet through an unguarded floor opening into a pit, and his resulting injuries were proximately caused by the carelessness and negligence of the defendant.

On July 14, 2010, the defendant filed a motion to implead BE & K, Inc. pursuant to General Statutes § 52-102a and Practice Book § 10-11, asserting claims for breach of contract and indemnification.   The plaintiffs filed an objection to the defendant's motion to implead on July 20, 2010.

DISCUSSION

General Statutes § 52-102a provides in relevant part:  “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.   The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.”

The plaintiffs first object to the defendant's motion to implead on the grounds that their inability to plead over as to the third party at this stage in the litigation would work an injustice upon them pursuant to § 52-102a.   The plaintiffs' argument relies primarily on Lemp v. East Granby, Superior Court, judicial district of Hartford, Docket No. CV 99 0589417 (December 9, 2000, Rubinow, J.), in which the plaintiffs similarly objected to the defendants' motion to implead on grounds that, inter alia, the granting of the motion would work an injustice upon them.

The court in Lemp began its analysis with a discussion of our Appellate Court's decision in Vincent v. Litchfield Farms, Inc., 21 Conn.App. 524, 574 A.2d 834, cert. denied, 215 Conn 815, 576 A.2d 545 (1990), wherein “the plaintiff brought an action sounding in negligence, seeking damages for injuries she had sustained in a fall in the parking lot of a restaurant operated by the defendant ․ Prior to the expiration of the negligence statute of limitations, the defendant filed a third party complaint against its landlords seeking indemnification, and within twenty days after the landlords appeared, the plaintiff filed an amended complaint naming them as codefendants in the original action ․ The plaintiff's complaint against the landlords, however, had been served after the negligence statute of limitations had run ․ The Appellate Court held that the plaintiff's compliance with § 52-102a(c) and Practice Book § 117 did not insulate her against the defendant's claims that the amended complaint was too late to provide her with a remedy against the landlord ․ The [A]ppellate [C]ourt opined that [t]he plaintiff's complaint was amended after the statute of limitations had run as to the third party defendants.   The claim was, therefore, time-barred, and the trial court was correct in granting the third party defendant's motion for summary judgment [against the plaintiff].”  (Citations omitted;  internal quotation marks omitted.)  Lemp v. East Granby, supra, Docket No. CV 99 0589417.

The Lemp court then applied the Vincent holding to its consideration of whether granting the defendants' motion to implead would work an injustice upon the plaintiffs, noting:  “[The] third party defendants ․ would be permitted to assert any defenses they might have had to the original action ․ The plaintiffs, however, could only respond to the actions of the third party defendants, without the opportunity to achieve any remedy.   The plaintiffs would be significantly restricted in their ability to counter the primary defendants' arguments that the third party defendants caused the plaintiffs' injuries.   As a practical matter, therefore, if the [third party defendants] were impleaded, the plaintiffs could not benefit from proof that establishes the liability of both the primary defendants and the third-party defendants.”   (Citation omitted.)  Lemp v. East Granby, supra, Docket No. CV 99 0589417.   As a result of the foregoing considerations, the Lemp court found that granting the pending motion to implead would work an injustice to the plaintiffs pursuant to § 52-102a, and therefore, the court denied the defendants' motion to implead.  Id.

The same rule and considerations discussed in the Lemp case apply to the circumstances presented in the case at bar.   Jean Pierre suffered his injuries on December 13, 2007.   The plaintiffs did not bring a negligence action against the third party defendant within the two-year statute of limitations prescribed by General Statutes § 52-584.¹  As a result, the plaintiffs are precluded from proceeding against the third party defendant in any fashion, although the defendant would be entitled to present its case for breach of contract and indemnification.   Therefore, as in Lemp, the court's granting of the pending motion to implead in the present case would work an injustice upon the plaintiffs pursuant to § 52-102a.

The plaintiffs further object to the defendant's motion to implead on the grounds that granting the motion would cause undue delay to the trial.   The present action was initiated on December 13, 2007, and the pleadings were closed on March 5, 2009.   Furthermore, jury selection is scheduled to begin on October 25, 2010, only three months from the date the defendant filed its motion to implead.   The court finds that granting the defendant's motion to implead at this stage in the litigation would unduly delay the trial of the present action pursuant to § 52-102a.   See, e.g., Phelan v. Miller, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0075700 (November 19, 2002, Sferrazza, J.) (denying motion to implead filed three months before jury selection scheduled to begin on grounds would unduly delay trial).   As a result of the foregoing, the defendant's motion to implead must be denied on the grounds that the granting of the motion would work an injustice upon the plaintiffs and unduly delay the trial of this matter.

CONCLUSION

Based on the foregoing, the court hereby denies the defendant's motion to implead.

Martin, J.

FOOTNOTES

FN1. General Statutes § 52-584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained ․”.  FN1. General Statutes § 52-584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained ․”

Martin, Robert A., J.