John Girolametti, Jr. et al. v. City of Danbury et al. (2011)

RULING ON MOTION TO DISMISS (# 168.00)

By summons and complaint dated November 24, 2010, the plaintiffs, John Girolametti, Jr., Cindy Girolametti and 43 South Street, LLC, commenced this action against the City of Danbury and its several building department officials sounding in negligence (Danbury).   On March 9, 2011, the City of Danbury served and returned to court an apportionment complaint against Lindade Construction, Inc. pursuant to General Statutes § 52–102b.   On June 1, 2011, Danbury filed a request for leave to amend to add a second count to its complaint against Lindade to assert a claim for indemnification.   No objection to the request for leave to amend has been filed.   On July 1, 2011, Lindade moved to dismiss the second count of Danbury's complaint on the following grounds:  first, that Danbury failed to move for permission to implead Lindade on the new count sounding in indemnification pursuant to General Statutes § 52–102a;  and second, that an apportionment and an indemnification claim may not be asserted against a party in the same action.

“The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10–31.  “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․” Cox v. Aiken, 278 Conn. 204, 210–11, 897 A.2d 71 (2006).

As to Lindade's first claim that General Statutes § 52–102a required Danbury to file a motion seeking the court's permission to implead Lindade, the court finds no merit in Lindade's argument.  General Statutes § 52–102a pertains to impleading third parties who are not currently parties to the pending action.   Lindade was already a party at the time Danbury amended its complaint to add the indemnification count.

As to Lindade's second claim, “[n]either our Supreme Court nor our Appellate Court have considered whether an indemnification count is properly included in an apportionment complaint.   However, several judges of the Superior Court have considered the issue and held that an indemnification count is inappropriate in an apportionment complaint.   Bradley v. Randall, Superior Court, judicial district of Windham, Docket No. CV 95 0052173 (April 8, 1996, Sferrazza, J.) (18 Conn. L. Rptr. 636), aff'd., 45 Conn.App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997);  see Rosario v. Orlando Annulli & Sons, Superior Court, judicial district of Hartford, Docket No. CV 07 5007896 (August 9, 2007, Wagner, J.T.R.) [44 Conn. L. Rptr. 9];  see also Miller v. Norwalk, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 00 0177835 (September 17, 2001, Adams, J.) (contract indemnity claim in apportionment complaint improper without first receiving permission to implead);  Lalond v. Devon Post No. 1788, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 99 065494 (October 26, 1999, Grogins, J.) (apportionment complaint that sets forth an indemnification cause of action within an apportionment claim is improper);  Clark v. The Vin Agency, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 95 69 40 (August 18, 1997, Skolnick J.) (20 Conn. L. Rptr. 286) (indemnification and apportionment cannot be brought in same complaint) ․” (Internal quotation marks omitted.)   Larocca v. Charter Oak Appraisal, Superior Court, judicial district of Fairfield, Docket No. CV 08 5019677 (May 20, 2009, Tobin, J.) [47 Conn. L. Rptr. 891].

What all of the cases cited above in Larocca have in common is an apportionment plaintiff attempting to assert an indemnification claim in a complaint served under the auspices of General Statutes § 52–102b.   Indeed, this was the case in Larocca and the court properly dismissed the indemnification count.   In so doing, however, the court noted “that the defendant can easily amend its complaint against Edwards to add an indemnification count.”  Larocca v. Charter Oak Appraisal, supra.   This is what Danbury has done in the instant case.   Danbury did not include the indemnification count in its original apportionment complaint but, subsequently, filed an amended complaint to include the indemnification count.   This court agrees with the reasoning of Judge Tobin in the Larocca case.

For the foregoing reasons, the motion to dismiss the second count of Danbury's amended apportionment complaint, dated June 1, 2011, is DENIED.

Michael G. Maronich, Judge

Maronich, Michael G., J.