Jonathan Prete et al. v. Michael Borrelli et al. (2012)

MEMORANDUM OF DECISION IN RE MOTION TO STRIKE APPORTIONMENT COMPLAINT

This action arises out of an automobile accident.   The plaintiff, Jonathan Prete, alleges that he was the operator of a car in which the plaintiff, Timothy Ryan, was a front seat passenger.   In their complaint, the plaintiffs claim that their car was struck by a truck owned by the defendant, Ginnetti Petroleum Transporters, LLC, and operated by one of its employees, the defendant, Michael Borrelli.   The plaintiffs allege that the collision and their resulting injuries were caused by the negligence of the defendants.   In Count One of the complaint, Prete seeks damages for the injuries he received, and in Count Two, Ryan seeks damages for his injuries.

The motion now before the court concerns an apportionment complaint brought by the defendants against Prete seeking apportionment of damages which may be found owing to Ryan. Prete has moved to strike the apportionment complaint on the grounds that such an action is not authorized by General Statutes § 52–102b.   The defendants object to the motion to strike, arguing that the statute does not preclude the filing of an apportionment complaint under the circumstances present here.   For the reasons set forth below, the court agrees with the defendants.   Accordingly, the motion to strike is hereby denied.

The question presented by the instant motion is this:  can an apportionment complaint be filed against an existing plaintiff, or is the filing of such a complaint barred by Gen.Stat. § 52–102b?  Section 52–102b provides in pertinent part that “[a] defendant in any civil action ․ may serve a ․ complaint upon a person not a party to the action who is or maybe liable ․ for a proportionate share of the plaintiff's damages.”  (Emphasis added.)   Thus, this statutory provision has been recognized as “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 (2000).

In the present case, Prete argues that, because he is already a plaintiff in this action, the language of § 52–102b precludes him from being named as an apportionment defendant in the apportionment action filed by the defendants.   The defendants counter that they are entitled to bring their apportionment action against Prete because it is the only means by which they can assert the negligence of Prete, as the operator of one of the subject vehicles, as a contributing factor in the injuries suffered by Prete's passenger, Ryan.

Although this precise issue has not yet been considered by our appellate courts, a number of Superior Courts have expressed their opinions on the issue.   In fact, many of the relevant trial court decisions involve factual circumstances virtually identical to those present here—that is, a driver and passenger jointly bring a negligence action against the owner and/or operator of another vehicle, and the defendant(s)-owner/operator thereafter commences an apportionment action against the plaintiff-driver alleging that the driver's own negligence contributed to the passenger's injuries.   These reported trial decisions reflect a split of authority among the Superior Courts.   One line of cases, which has been referred to as the “majority view,” interprets the plain language of the § 52–102b and certain of its legislative history to preclude the filing of an apportionment claim against one who is already a party to the underlying action.   E.g. Roklin v. Presnell, judicial district of New Haven at Meriden, Docket No. CV04–0287569 (March 10, 2006, Taylor, M., J.), and cases cited therein.   The contrary view, which is often characterized as the “minority view,” concludes that the purpose of § 52–102b is not to bar the filing of apportionment complaints against existing parties, but rather to provide a statutory means by which defendants may add and seek apportionment from non-parties.   Torres v. Begic, judicial district of New Haven, Docket No. CV00–0423742 (June 13, 2000, Levin, J.) [27 Conn. L. Rptr. 403] (“As the title and text of the statute make clear, this provision applies only to bringing new parties into a lawsuit for purposes of apportioning liability.   It does not apply to the assertion of apportionment claims against existing parties”).   These “minority view” opinions have determined that because “ § 52–102b is irrelevant to persons that are already parties to a suit”;  Vallejos v. Santiago, judicial district of New London, Docket No. CV10–6006089 (May 23, 2011, Cosgrove, J.) [52 Conn. L. Rptr. 49];  the law does not preclude the filing of an apportionment action against existing parties.

Having undertaken its own assessment of the respective merit of the majority and minority positions, this court concludes that the so-called “minority view” is not only better reasoned and more practical, it seems to reflect the more modern approach.¹  As this court sees it, § 52–102b does not say, and was not intended to say, that a defendant is barred from filing an apportionment complaint against an existing party.   Rather than serving to restrict a defendant's right to seek apportionment, the statute's purpose is to broaden that right by authorizing apportionment to be sought against non-parties as well.   Based upon this interpretation of the language of the statute, the plaintiffs' motion to strike the apportionment action in this case must be denied.

Indeed, even if § 52–102b were to be interpreted to prohibit apportionment against existing parties, this statute still would not act as a bar to the apportionment action filed here because Prete is not properly considered a “party” in the action brought by the co-plaintiff, Ryan. In the court's view, each of the plaintiffs here—Prete and Ryan—”has essentially asserted a separate negligence claim against the defendants.”  Vallejos v. Santiago, supra.   As a result, “[t]his case is functionally two cases”;  Sharif v. Peck, judicial district of New Haven, Docket No. CV01–0429034 (March 27, 2001, Blue, J.) [29 Conn. L. Rptr. 311]; ²  consisting of Prete versus Ginnetti Petroleum and Borrelli, on the one hand, and Ryan versus Ginnetti Petroleum and Borrelli, on the other.

In this regard, the court's reasoning in Sharif v. Peck is instructive.   As in the case here, Sharif v. Peck involved a two-car accident in which the driver, Sharif, and her passenger, Toney, together brought a negligence action against Peck, the driver of another car.   Thereafter, Peck sought to commence an apportionment complaint against Sharif in the action brought by Toney.   Employing what he called a “functional analysis,” Judge Blue commented:

If Sharif and Toney had retained separate counsel and filed their respective actions independently, there could be no question that Peck could file an apportionment complaint against Sharif in the action brought by Toney.   Sharif would not be a party to that action.   Functionally, it is no different here.   Although Sharif and Toney may have their cases tried together, the jury must be instructed to consider the claims of the two plaintiffs separately.   Sharif is not a ‘party’ to Toney's claim.   Tone's [sic] claim must rise or fall on its own merits.   If Toney prevails in his claim, Peck has every right to have the jury consider the contribution of Sharif's negligence, in [sic] any, in causing Toney's injuries.

The court here finds the “functional analysis” of Sharif v. Peck to be persuasive.   In the present case, Prete simply cannot be characterized as a party to Ryan's separate cause of action.   Therefore, the defendants' apportionment action cannot be said to run afoul of the plain language of § 52–102b.   Having filed a special defense of contributory negligence against Prete with respect to his claim against them, the defendants now also seek through an apportionment action to offset Ryan's damages (sustained while Prete's passenger) with Prete's contributory negligence.   In the court's opinion, this is an appropriate and statutorily permissible use of an apportionment action.  “Section 52–102b should not serve as a barrier keeping the defendants from seeking an apportionment of liability [under these circumstances.]”  Vallejos v. Santiago, supra.   To the contrary, given that “[t]he purpose of § 52–102b is to effectuate a sharing of the responsibility between potential tortfeasors,” id., the court concludes that the apportionment action in this case is necessary so that the statute's purpose is not thwarted and the defendants are not left without adequate legal recourse.³

For the foregoing reasons, the court finds that § 52–102b does not bar the defendants from asserting an apportionment claim against the plaintiff Prete, as driver, with respect to the negligence claims asserted by plaintiff Ryan, as Prete's passenger.   Accordingly, the motion to strike the apportionment complaint is denied.

THE COURT

Gold, J.

FOOTNOTES

FN1. In fact, it may no longer be appropriate to characterize this position as the “minority view.”   As aptly noted in Hilarion v. Yank, judicial district of Fairfield at Bridgeport, Docket No. CV10–6006792 (September 9, 2011, Dooley, J.) [52 Conn. L. Rptr. 574], a review of the case law “suggests that the division among the superior court judges is approaching an even split.”   Indeed, given the clear trend toward the adoption of the “minority view” in recent cases, it may well be that the so-called “minority view” now reflects the opinion of the majority of the judges who have had occasion to rule upon this particular question..  FN1. In fact, it may no longer be appropriate to characterize this position as the “minority view.”   As aptly noted in Hilarion v. Yank, judicial district of Fairfield at Bridgeport, Docket No. CV10–6006792 (September 9, 2011, Dooley, J.) [52 Conn. L. Rptr. 574], a review of the case law “suggests that the division among the superior court judges is approaching an even split.”   Indeed, given the clear trend toward the adoption of the “minority view” in recent cases, it may well be that the so-called “minority view” now reflects the opinion of the majority of the judges who have had occasion to rule upon this particular question.

FN2. Sharif v. Peck appears to have been erroneously cited as Sharif v. Beck in Vallejos v. Santiago, supra and Hilarion v. Yank, supra..  FN2. Sharif v. Peck appears to have been erroneously cited as Sharif v. Beck in Vallejos v. Santiago, supra and Hilarion v. Yank, supra.

FN3. It does not appear that Ryan has chosen to commence a separate action against Prete.   Consequently, if this apportionment complaint were to be stricken, there would be no other method for the defendants to raise Prete's alleged contributory negligence as a basis upon which to apportion liability for the injuries suffered by Ryan. See Vallejos v. Santiago, supra..  FN3. It does not appear that Ryan has chosen to commence a separate action against Prete.   Consequently, if this apportionment complaint were to be stricken, there would be no other method for the defendants to raise Prete's alleged contributory negligence as a basis upon which to apportion liability for the injuries suffered by Ryan. See Vallejos v. Santiago, supra.

Gold, David P., J.