Travelers Indemnity Company of Connecticut v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 118)

FACTS

On March 25, 2010, the plaintiff, Travelers Indemnity Company of Connecticut, initiated this subrogation action by service of process.   The plaintiff alleges breach of contract against Gilmore Construction, LLC (Gilmore) and Benco Dental Supply Co. (Benco) in counts one and two, respectively.   Specifically, the plaintiff alleges that its insured, Dr. Kathleen Burr, D.M.D., P.C. (Burr), was a tenant in a building in South Windsor.   On or about September 1, 2006, Burr contracted with Gilmore for construction and renovation work.   During the course of the construction, the work was found to be substandard, and, as a result of the substandard work, severe and substantial flooding of the premises occurred.   On or about December 21, 2006, Burr contracted with Benco to install a “TapMaster” control valve.   The contract obligated Benco to follow the manufacturer's installation instructions in installing the valve.   Benco failed to follow:  the instructions and leaking ensued.   Pursuant to an insurance policy between Burr and the plaintiff, the plaintiff paid Burr for the damages.   The plaintiff alleges that it is now entitled to collect damages from the defendants.

On August 13, 2010, Benco filed an answer in which it denied liability.   Gilmore has not filed a responsive pleading and is a non-appearing defendant.   On August 31, 2010, Benco filed a motion to implead a third-party defendant pursuant to Practice Book § 10–11 and General Statutes § 52–102a.   On September 17, 2010, the motion was granted.   Along with the motion to implead a third-party defendant, Benco filed a third-party complaint against John Comer Plumbing & Heating seeking common-law indemnification and other damages.   Benco alleges that, to the extent that the plaintiff or its insured suffered any of the aforementioned damages attributed to Benco, the damages were caused by John Comer Plumbing & Heating.   Benco alleges that John Comer Plumbing & Heating was responsible for plumbing work and installation of valves and tubing subsequent to Benco's installation of the TapMaster.   Benco alleges that the work completed by John Comer Plumbing & Heating was done negligently.   As a result, Benco alleges that it has sustained damages, including attorneys fees incurred in defending the underlying action.

On October 19, 2010, an appearance was filed on behalf of John Comer Plumbing & Heating.   On October 25, 2010, the plaintiff filed an amended complaint, which is now operative, in which it retained the original two counts, and added a third count for negligence against John Comer Plumbing & Heating related to plumbing work done subsequent to Benco's installation of the TapMaster.

On December 22, 2010, John Comer Plumbing & Heating filed a motion for summary judgment on the ground that count three of the amended complaint is barred by the statute of limitations.   The motion was accompanied by a memorandum of law.   On March 9, 2011, the plaintiff filed an opposition to the motion for summary judgment.   On March 25, 2011, John Comer Plumbing & Heating filed an answer to the amended complaint in which it denied liability and asserted the statute of limitations as a special defense.   On March 30, 2011, John Comer Plumbing & Heating filed a reply to the plaintiff's opposition to the motion for summary judgment.   On September 19, 2011, the matter was heard on the short calendar.

DISCUSSION

“Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)  Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 823, 14 A.3d 982 (2011).

“Filing an action beyond the date established by the applicable limitations is an appropriate ground on which to grant a motion for summary judgment when the material facts concerning the statute of limitations [are] not in dispute.”   (Internal quotation marks omitted.)  Vestuti v. Miller, 124 Conn.App. 138, 140 n.2, 3 A.3d 1046 (2010).

In the present case, John Comer Plumbing & Heating argues that there are no genuine issues of material fact and count three of the amended complaint is barred by the statute of limitations.   John Comer Plumbing & Heating argues that the plaintiff first asserted its negligence claim more than two years after the alleged actionable harm.   As a result, the action is barred by the statute of limitations pursuant to General Statutes § 52–584.

The plaintiff counters that § 52–584 is not applicable, but rather §§ 52–102b and 52–102a(c) apply because John Comer Plumbing & Heating is rightfully an apportionment defendant, not a third-party defendant.   The plaintiff argues that, as a result, the amended complaint need only have been filed within twenty days of John Comer Plumbing & Heating's appearance.   John Comer Plumbing & Heating counters that it is a third-party defendant and, thus, § 52–584 sets forth the applicable statute of limitations and is not tolled by any other statute.

I

The court begins its analysis by addressing whether John Comer Plumbing & Heating is a third-party defendant or an apportionment defendant.   Third-party complaints are governed by General Statutes § 52–102a, which states, in relevant part:  “(a) 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 ․” Apportionment complaints are governed by § 52–102b, which states, in relevant part:  “(a) 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 ․ ¹

In Gwozdz v. BCG Development, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5006994 (November 19, 2010, Cosgrove, J.) (50 Conn. L. Rptr. 835), the court noted that “[t]he noticeable difference between §§ 52–102a and 52–102b is that § 52–102a impleads a non-party because of liability to the defendant, while § 52–102b impleads a non-party because of liability for a share of the plaintiff's damages.”  (Internal quotation marks omitted.)  Id., 836.   In that case, the court held that where the third-party plaintiffs alleged that “[the third-party defendant's] negligence was the primary, direct and immediate cause of the plaintiff's damages” and “the third-party defendant is liable to them to the extent that the plaintiff is entitled to recover against [the third-party plaintiffs],” the action was properly governed by § 52–102a as a third-party complaint.  Id., 836–37.

The present case is analogous.   Here, on August 31, 2010, Benco filed a motion to implead a third-party defendant stating that it did so pursuant to Practice Book § 10–11 and § 52–102a.²  Benco's third-party complaint alleges that the plaintiff's insured's damages, to the extent that there were any, were caused by John Comer Plumbing & Heating's negligence, and John Comer Plumbing & Heating is liable to Benco for damages;  not liable to the plaintiff for a share of the damages.   Benco further alleges that John Comer Plumbing & Heating is liable to it for attorneys fees incurred while defending the underlying matter.   As a result, it is submitted that the John Comer Plumbing & Heating is a third-party defendant as defined in § 52–102a.

II

Based on John Comer Plumbing & Heating's status as a third-party defendant, the court must address the applicable statute of limitations, and whether the statute of limitations has been tolled by the third-party complaint.   John Comer Plumbing & Heating argues that the applicable statute of limitations is contained in § 52–584.   The plaintiff counters that the amended complaint need only be filed within twenty days of the third-party complaint, subject to § 52–102a(c).

General Statutes § 52–584 states, in relevant part:  “No action to recover damages for injury to the person, or to real or personal property caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

The parties agree that the date of the actionable harm alleged is March 8, 2008, and the amended complaint was filed on October 25, 2010.   As the date of the amended complaint is more than two years after actionable harm, count three would be barred by § 52–584.

The plaintiff argues, however, that the amended complaint is timely if it was filed within twenty days of the appearance of the third-party defendant, pursuant to § 52–102a(c).  Section 52–102a(c) states:  “(c) The plaintiff, within twenty days after the third-party defendant appears in the 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, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff.”   Here, the third-party defendant appeared on October 19, 2010.   On October 25, 2010, the plaintiff amended its complaint to include claims arising out of the initial subject matter.

The plaintiff has come to an incorrect legal conclusion.   Citing federal precedent, our Appellate Court has held that, “[u]nder Rule 14(a) [of the Federal Rules of Civil Procedure] a plaintiff's amendment of a complaint in order to bring a direct action against a third-party defendant is treated as the filing of an original action by the plaintiff against the third-party defendant ․ Consequently, [t]he filing of a third-party complaint by the original Defendant does not toll the running of the statute [of limitations] on a cause of action between the Plaintiff and a third-party defendant ․

“We see no reason to construe General Statutes [§ ]52–102a(c) ․ differently from the construction that federal courts have given to Rule 14(a) in that respect.”  (Citations omitted;  internal quotation marks omitted.)   Vincent v. Litchfield Farms, Inc., 21 Conn.App. 524, 527–28, 574 A.2d 834, cert. denied, 215 Conn. 815, 576 A.2d 546 (1990).

For the foregoing reasons, the applicable statute of limitations is two years under § 52–584, and that statute is not tolled by the filing of a third-party complaint.   As a result, there are no genuine issues of material fact, and the amended complaint was not timely.   Therefore, the court grants the motion for summary judgment in favor of John Comer Plumbing & Heating as to count three of the amended complaint.

Woods, J.

FOOTNOTES

FN1. If John Comer Plumbing & Heating is deemed an apportionment defendant, the timeliness of the complaint would be governed by § 52–102b(d), which states that:  “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.”.  FN1. If John Comer Plumbing & Heating is deemed an apportionment defendant, the timeliness of the complaint would be governed by § 52–102b(d), which states that:  “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.”

FN2. Practice Book § 10–11 substantively mirrors General Statutes § 52–102a..  FN2. Practice Book § 10–11 substantively mirrors General Statutes § 52–102a.

Woods, Glenn A., J.