Edmundo Vallejos v. Kelvin Santiago (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE THE APPORTIONMENT COMPLAINT (NO. 118)

FACTS

On January 18, 2011, the plaintiffs, Edmundo Vallejos, Araminda Alvarado and Vicenta Escalante, filed a three-count amended complaint against the defendants, Kelvin Santiago and Luis Santiago.   Each plaintiff alleges negligence on the part of the defendants in a separate count.   The complaint alleges that Kelvin Santiago negligently and carelessly operated a vehicle owned by Luis Santiago, resulting in a two-car accident on February 3, 2010.   Vallejos was operating the other vehicle, and the other two plaintiffs were passengers in Vallejos' car at the time of the accident.   On February 10, 2011, the defendants filed an answer and special defense, alleging that Vallejos was contributorily negligent in causing the accident.   In addition, on February 14, 2011, the defendants filed an apportionment complaint against Vallejos, alleging that if the other plaintiffs sustained losses as alleged in the complaint, then such losses were caused by Vallejos' negligence and that Vallejos is liable for a proportionate share of any recovery by the plaintiffs, pursuant to General Statutes § 52–572h.

On March 3, 2011, Vallejos filed a motion to strike the defendants' apportionment complaint for failure to state a claim upon which relief can be granted.   The motion is accompanied by a memorandum of law.   The defendants filed an objection to the motion to strike and a memorandum of law in support of their objection on March 14, 2011.

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).  “It is fundamental that in determining the sufficiency of a complaint challenged by a [party'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).  “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 the present case, Vallejos argues that General Statutes § 52–102b does not allow an apportionment complaint to be served on someone who is already a party to the action.   Vallejos contends he cannot be an apportionment defendant because he is already a named plaintiff.   In response, the defendants assert that many Superior Courts have recognized an apportionment claim against an existing party under similar factual circumstances.   They argue that only through apportionment can they assert the negligence of Vallejos, the driver of the other vehicle, as a contributing factor in the injuries of the other two plaintiffs.

General Statutes § 52–102b(a) provides in relevant part:  “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.”  (Emphasis added.)  “General Statutes § 52–102b(a) is the procedural vehicle by which a defendant in a negligence action may bring in a party for apportionment of liability purposes.”  Henriques v. Magnavice, 59 Conn.App. 333, 337, 757 A.2d 627 (2000).

There is a split of authority among the Superior Courts as to whether a defendant can bring an apportionment claim against someone who is already a party to the action.  “The majority of Superior Court decisions hold that General Statutes § 52–102b precludes a [counterclaim] for apportionment against someone who is already a party to the action ․ Courts adopting the majority view have generally done so on the basis of the plain language and legislative history of § 52–102b as well as the fact that apportionment is already available to parties in negligence actions.”  (Citation omitted;  internal quotation marks omitted.)   Blazer v. Gil, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 07 5003123 (June 15, 2007, Tobin, J.) (43 Conn. L. Rptr 619, 620).  “On the other hand, a minority of judges have held that apportionment complaints may be filed against existing parties ․ The opinions that follow the minority view have articulated several grounds for doing so.   Primarily, the minority view holds that § 52–102b(a) is irrelevant to persons that are already parties to a suit.”  Id.;  see Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 423742 (June 13, 2000, Levin, J.) (27 Conn. L. Rptr 403).

The minority view treats the separate claims by the multiple plaintiffs as separate causes of action.   In Sharif v. Beck, Superior Court, judicial district of New Haven, Docket No. 429034 (March 27, 2001, Blue, J.) (29 Conn. L. Rptr 311), Judge Blue performed a “functional analysis” in a case that is nearly identical, factually, to the present case.   He determined that although the driver and the passenger of one car decided to sue the driver of the other car together, the case is functionally two separate cases, and the plaintiff driver was not a “party” to the plaintiff passenger's negligence claim against the defendants.  Id., 312.

In another factually similar case, Judge Levin, in following the minority view, concluded that treating the plaintiff driver as a party to the plaintiff passenger's personal injury claim “would elevate form over substance.”   Orengo v. Barksdale, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 09 5026062 (January 26, 2010, Levin, J.) (49 Conn. L. Rptr. 357, 357), quoting Gerlt v. South Windsor, 284 Conn. 178, 192, 931 A.2d 907 (2007).   Judge Levin further noted:  “A single tortious act resulting in personal injury to more than one person may give rise to as many causes of action as there are persons injured, so as to permit a separate action for damages against the wrongdoer by each injured person.”  Id., quoting 1 Am.Jur.2d, Actions § 116 (2005).

This court is persuaded by the minority view in light of the specific facts of the present case.   Each plaintiff has essentially asserted a separate negligence claim against the defendants.   While the majority view considers the filing of an apportionment complaint against an existing party to be a counterclaim, that is not what the defendants have done under the present set of facts.   Here, the defendants have filed a special defense of contributory negligence against Vallejos with respect to his claim against them;  separately, the defendants seek to offset the other plaintiffs' claims with Vallejos' alleged contributory negligence through an apportionment complaint.   Section 52–102b should not serve as a barrier keeping the defendants from seeking an apportionment of liability with respect to the claims of the plaintiffs Alvarado and Escalante.  “When two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results ․ In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.”   (Citation omitted;  internal quotation marks omitted.)  Stoni v. Wasicki, 179 Conn. 372, 376–77, 426 A.2d 774 (1979).   The purpose of § 52–102b is to effectuate a sharing of the responsibility between potential tortfeasors, as set forth in the legislative directive and the public policy of General Statutes 52–572h(c).  If this apportionment complaint were stricken, there would be no other method to apportion liability for injuries to the plaintiff passengers for their respective claims in the complaint because Alvarado and Escalante have chosen not to sue Vallejos, the operator of the other vehicle involved in the crash.

CONCLUSION

For the foregoing reasons, the court finds that General Statutes § 52–102b does not prohibit the defendants from asserting an apportionment claim against the plaintiff Vallejos with respect to the negligence claims asserted by the plaintiffs, Alvarado and Escalante.   Accordingly, the plaintiff Vallejos' motion to strike the apportionment complaint is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.