James Teixeira et al. v. Yale New Haven Hospital (2010)

MEMORANDUM OF DECISION

This action arises out of injuries alleged to have occurred after a fall from a rooftop and subsequent alleged negligent medical care.   Specifically, the plaintiffs, James Teixeira and Cynthia Teixeira, claim that on September 22, 2008, James Teixeira fell from the roof of a home owned by James Alicki and Shannon Alicki.   The plaintiffs allege James Teixeira suffered severe injuries to his legs, was subsequently admitted to Yale-New Haven Hospital for treatment, and on September 23, 2008, underwent a surgical procedure performed by surgeon Jeffrey Sumner.   The plaintiffs further allege that James Teixeira received negligent medical care during his stay in the hospital, leading to the eventual amputation of his left leg on October 1, 2008.   On June 10 and June 15, 2009, the plaintiffs served various defendants, including surgeon Jeffrey Sumner and the Center for Orthopaedics, alleging negligence in the medical care and treatment of James Teixeira.¹

On February 8, 2010, the apportionment plaintiffs, Jeffrey Sumner and the Center for Orthopaedics, filed a one-count complaint seeking apportionment of liability against James Alicki and Shannon Alicki, the apportionment defendants.   The apportionment complaint specifically alleges that the apportionment defendants permitted James Teixeira to repair the roof of their home in poor weather conditions, and without providing a warning or safety equipment.   The apportionment defendants filed a motion to strike the apportionment complaint on the ground that the filing of a complaint is legally insufficient because the apportionment defendants had settled, and been released from, any claims by the plaintiffs.   In support of the motion to strike, the apportionment defendants filed a memorandum of law accompanied with a signed release agreement dated January 15, 2009, memorializing their legal settlement with the plaintiffs.   On September 3, 2010, the apportionment plaintiffs filed a memorandum in objection to the motion to strike.   The motion was heard by the court at short calendar on September 7, 2010.

“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).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

In this case, the defendants move to strike the apportionment plaintiffs' single-count complaint.   The apportionment defendants claim that the apportionment complaint is legally insufficient because, under the language of General Statutes § 52-102b(c), only a notice of apportionment is procedurally proper after settlement has been reached with plaintiffs.   Thus, the apportionment defendants argue that, because they reached a settlement and release agreement with the plaintiffs in January 2009, the apportionment complaint served in February 2010 is an “improper vehicle for seeking to apportion liability against settled and released parties” under § 52-102b.

The apportionment plaintiffs counter that under § 52-102b(c), the “apportionment plaintiff has a choice as to whether to file an apportionment complaint or file a notice of apportionment against a settled party.”   The apportionment plaintiffs argue that filing a notice of apportionment is merely permissive, and not mandatory.   Thus, the apportionment plaintiff claims § 52-102b(c) does not preclude the filing of a complaint against a settled or released person, and the filing of an apportionment complaint after settlement is legally sufficient to state a cause of action.   Further, the apportionment plaintiff claims it did not know of the fact of the settlement at the time of the filing of the complaint, despite inquiring of the apportionment defendant, and it would constitute legal malpractice to simply hazard a guess as to whether to file a complaint or notice of apportionment without such knowledge.   It argues that this scenario is imbued with ambiguity and provides further support for its contention that either a complaint, or notice, is sufficient under § 52-102b after an apportionment defendant has settled or been released.

Section 52-102b controls the procedure for the addition of persons as a defendant for apportionment of liability purposes.   Specifically, § 52-102b(a) provides, in relevant part that:  “A defendant in any civil action to which section 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 52-102b(c) provides further guidance in that:  “If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damages and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice ․” (Emphasis added.)   The issue as to the proper procedure under § 52-102b for filing either an apportionment complaint or notice of apportionment, against a settled or released party, has been addressed specifically in two Superior Court cases.

In Pawloski v. Delta Sigma Phi, Superior Court, judicial district of New Haven, Docket No. CV 03 0484661 (September 24, 2004, Zoarski, J.) (38 Conn. L. Rptr. 29), the plaintiffs brought a negligence action against the defendants after their decedent was struck and killed by a car.   The plaintiffs subsequently settled with the defendants, but brought a negligence suit against a university in connection with the service of alcohol at a party the defendant had attended.   The university then filed a complaint against the defendants, seeking the apportionment of liability.   The apportionment defendants filed a motion to strike on the ground that § 52-102b(c) does not permit a complaint to be filed against a settled or released party.   This court, Zoarski, J.T.R., after analyzing the statutory language and legislative intent behind § 52-102b(a) and (c), granted the motion to strike and found that “[t]he plain and unambiguous text of the statute provides that a settled or released person would not be made an apportionment defendant by filing an apportionment complaint, but that the issue of his apportionment of liability would be raised by filing a notice of apportionment.”  Pawloski v. Delta Sigma Phi, supra, 38 Conn. L. Rptr. 30.   Thus “[a] notice of apportionment is the exclusive and mandatory method for apportioning liability to a settled or released party ․” Id.

Similarly, in Trainor v. Jackson, Inc., Superior Court, judicial district of Hartford, Docket No. CV 00 0595611 (October 19, 2000, Rubinow, J.) (28 Conn. L. Rptr. 445), the plaintiffs sued in a wrongful death action after their decedents were struck and killed by a car driven by the defendant.   The plaintiffs subsequently settled with the defendant, but then sued the owners of a hotel and restaurant for failing to provide an adequate road crossing.   The hotel and restaurant brought an apportionment complaint against the driver.   The driver moved to strike the complaint on the ground that, because he had previously settled with the plaintiffs, the sole proper procedure for bringing an apportionment action against him was through a notice of apportionment.   The court granted the motion to strike, holding that the “apportionment complaint improperly exceeds the implications of § 52-102b(c) ․” Trainor v. Jackson, Inc., supra, 28 Conn. L. Rptr. 446.   Specifically, the court noted that the “avenue for any defendant [seeking apportionment against a previously released or settled party] is through a duly filed notice of apportionment, rather than by service of a formal apportionment summons and complaint.”   Id.

In the present case, the apportionment defendants have provided evidence of a duly executed settlement and legal release with the plaintiffs dated January 15, 2009.   The apportionment plaintiffs filed their complaint against the apportionment defendants on February 8, 2010.   Therefore, the apportionment defendants, at the time the complaint was filed, had already settled with the original plaintiffs.

The filing of a notice of apportionment, under the plain text of § 52-102b(c) is a mandatory, not permissive, procedure in the apportionment of liability to a settled or released person.  Pawloskli v. Delta Sigma Phi, supra, 38 Conn. L. Rptr. 30.   Thus, the filing of a complaint in this case was improper because “if a defendant seeks to apportion liability against a settled or released person, he must do so through the exclusive method prescribed by § 52-102b(c), which is by filing a notice of apportionment of liability.”   (Emphasis added.)  Id. The apportionment plaintiffs' claim that they did not know of the settlement at the time of the filing of the complaint, and that a special exception should apply in those cases in which a party is unable to obtain settlement confirmation of a settlement, is without merit.   The settlement in the present case occurred over a year before the apportionment complaint was filed.²

Therefore, the apportionment plaintiff's complaint is legally insufficient to state a claim upon which relief can be granted.

For the foregoing reasons, the apportionment defendants' motion to strike is granted.

Howard F. Zoarski

Judge Trial Referee

FOOTNOTES

FN1. Other named co-defendants in the suit, but not involved in this motion, are Yale-New Haven Hospital, Yale University School of Medicine, Yale Medical Group, and Yale University.   Dirk Johnson, Lee Rubin, John Sather, Rick Kulkarni, and Erik Carlson were also named defendants in the plaintiffs' original complaint, but were subsequently removed as parties to the lawsuit..  FN1. Other named co-defendants in the suit, but not involved in this motion, are Yale-New Haven Hospital, Yale University School of Medicine, Yale Medical Group, and Yale University.   Dirk Johnson, Lee Rubin, John Sather, Rick Kulkarni, and Erik Carlson were also named defendants in the plaintiffs' original complaint, but were subsequently removed as parties to the lawsuit.

FN2. Further, the proper procedure, as provided by the express language of § 52-102b, is for the apportionment plaintiff to file a complaint under § 52-102b(a), unless it can provide proof of the “fact that the plaintiff's claims against [an apportionment defendant] have been settled or released” as dictated by the notice requirements of § 52-102b(c).  Thus, an apportionment plaintiff cannot properly file a notice of apportionment when there exists any ambiguity as to whether a settlement has occurred.   Importantly, the legislature has preserved the rights of the apportionment plaintiff in these situations, as § 52-102b provides no deadline in which to file a notice of apportionment..  FN2. Further, the proper procedure, as provided by the express language of § 52-102b, is for the apportionment plaintiff to file a complaint under § 52-102b(a), unless it can provide proof of the “fact that the plaintiff's claims against [an apportionment defendant] have been settled or released” as dictated by the notice requirements of § 52-102b(c).  Thus, an apportionment plaintiff cannot properly file a notice of apportionment when there exists any ambiguity as to whether a settlement has occurred.   Importantly, the legislature has preserved the rights of the apportionment plaintiff in these situations, as § 52-102b provides no deadline in which to file a notice of apportionment.

Zoarski, Howard F., J.T.R.