Maudest Davis v. Patricia Burke (2010)

MOTION TO STRIKE # 115

FACTS

The plaintiff, Maudest Davis, filed a one-count complaint against the defendant, Patricia Burke, on March 11, 2010.   Burke filed an apportionment complaint against the apportionment defendant, Michael Mello, on April 26, 2010, with a return date of June 1, 2010.   On July 21, 2010, Davis filed a two-count complaint titled “Apportionment Complaint” against Burke and Mello.   Count one alleges negligence by Burke and is identical to the original complaint.   Count two asks for the trier of fact to apportion any responsibility it deems appropriate to Mello for his negligence pursuant to General Statutes §§ 52-102 and 52-172h.¹  Each count of Davis' apportionment complaint asserts the following facts.   On February 27, 2008, Burke was operating her motor vehicle in the right lane of two southbound lanes on Dixwell Avenue in Hamden, Connecticut, when she abruptly turned left and collided with a vehicle driven by Mello, who was traveling in the lefthand southbound lane.   Consequently, Mello's vehicle was pushed across the northbound lanes of Dixwell Avenue and into a commercial driveway, colliding with Davis' vehicle.   Davis suffered several serious injuries as a result.

On August 26, 2010, Mello filed a motion to strike count two of Davis' apportionment complaint on the ground that §§ 52-102b and 52-172h do not provide a cause of action for a plaintiff against an apportionment defendant.   The motion is accompanied by a memorandum of law.   Davis filed a memorandum of law in opposition to the motion on September 30, 2010.   The matter was heard at the short calendar on October 4, 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. Alve s, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”   (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.   The court must construe the facts in the complaint most favorably to the plaintiff ․ If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”   Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).

In the present case, Mello moves to strike count two on the ground that §§ 52-102b and 52-172h do not provide a plaintiff a cause of action in apportionment against a party.   In his memorandum of law in support of the motion, he cites § 52-102b(a), which outlines the procedure for a defendant to file an apportionment 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.”   In response, Davis argues that there is a statutory basis for her claim, citing §§ 52-102 and 52-102a(c).²

Although Davis cites to the wrong statutory sections in opposing the motion to strike, the contested count is nevertheless legally sufficient because complaints are not to be read narrowly and technically, and there is a statutory basis for Davis' claim within § 52-102b.   While Mello quotes extensively from § 52-102b(a) in his motion, he overlooks the section's remaining subsections. § 52-102b(d) expressly provides:  “Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.”  (Emphasis added.)

In the present case, Burke filed an apportionment complaint pursuant to § 52-102b(a) against Mello on April 26, 2010, with a return date of June 1, 2010.   Davis asserted her claim against Mello on July 21, 2010, within sixty days of the return date of Burke's apportionment complaint.   The claim Davis asserts arises out of the same occurrence that is the subject matter of Davis' original complaint against Burke.   Thus, there is a properly alleged statutory basis for Davis' claim against Mello in count two of her apportionment complaint.   Therefore, Mello's motion to strike this count is without merit.

CONCLUSION

For the foregoing reasons, the court denies the motion to strike.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. § 52-172h does not exist, and the applicable statute is actually § 52-102b..  FN1. § 52-172h does not exist, and the applicable statute is actually § 52-102b.

FN2. § 52-102a(c) provides:  “The plaintiff, within twenty days after the third-party defendant appears in this action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint ․” Davis inaccurately states in her memorandum in opposition that she filed her claim against Mello on June 14, 2010, which would be within twenty days after Mello appeared in the action on June 4, 2010.   While the complaint may have “June 14, 2010” in its header, it was not filed with the court until July 21, 2010..  FN2. § 52-102a(c) provides:  “The plaintiff, within twenty days after the third-party defendant appears in this action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint ․” Davis inaccurately states in her memorandum in opposition that she filed her claim against Mello on June 14, 2010, which would be within twenty days after Mello appeared in the action on June 4, 2010.   While the complaint may have “June 14, 2010” in its header, it was not filed with the court until July 21, 2010.

Burke, Richard E., J.