Laura DiBella et al. v. Town of Greenwich et al. (2012)

Memorandum of Decision on Motion to Consolidate (No.220.00)

INTRODUCTION

The plaintiffs brought this action against the defendants Town of Greenwich, Greenwich Board of Education of the Town of Greenwich, Miller Building Systems, Inc. and Carp Building Structures, Inc. alleging injuries suffered to them as a result of exposure to hazardous mold conditions in the modular structures that housed the Hamilton Avenue School.   On October 17, 2011 the court granted the defendants/third-party plaintiffs Town of Greenwich and Greenwich Board of Education of the Town of Greenwich's motion to implead which added third-party defendants Kevin M. Finn, Miller Liquidation Company f.k.a. Miller Building Systems, Inc., Mobile Modular Express II, LLC and NTA, Inc. On October 13, 2011 a related action, Town of Greenwich et al. v. Mobile Modular Express II, LLC et al., Docket No. FST CV116011564S was filed by the Town of Greenwich and Greenwich Board of Education of the Town of Greenwich against defendants Mobile Modular Express II, LLC as successor to Miller Building Systems, Inc., Kevin E. Finn, Miller Liquidation Company f.k.a. Miller Building Systems, Inc., and NTA, Inc. alleging negligence.¹  The case was transferred to the Complex Litigation Docket (X08) at Stamford on February 24, 2012.

The defendants/third-party plaintiffs Town of Greenwich and Greenwich Board of Education of the Town of Greenwich have now moved to consolidate the above case with the action entitled Town of Greenwich et al. v. Mobile Modular Express II, LLC et al., Docket No. FST CV116011564S.²  In the motion the defendants argue that the cases should be consolidated for judicial economy and to avoid the possibility of inconsistent results because of the shared common issues and facts in the two cases.   Third party defendant, NTA, Inc., filed an objection on April 23, 2012 against consolidating the actions for trial but is not objecting to consolidation for discovery purposes.³  NTA contends that consolidation would create significant unfair prejudice to NTA, increase the costs of litigation and create jury confusion as to the claims against NTA and its defenses.   The defendants Town of Greenwich and Greenwich Board of Education filed a reply on April 26, 2012.   The court heard argument on the motion on May 15, 2012.

DISCUSSION

A motion to consolidate is governed by Practice Book § 9–5(a), which provides, in pertinent part:  “Whenever there are two or more separate actions which should be tried together, the judicial authority may, upon the motion of any party or upon its own motion, order that the actions be consolidated for trial.”   The question of whether two actions ought to be consolidated is addressed to the discretion of the trial court.   See Rode v. Adley Express Co., Inc., 130 Conn. 274, 277, 33 A.2d 329 (1943).  “Independent of statutory authority, courts of general jurisdiction have inherent power to consolidate different causes, or order them tried together, when the circumstances authorize such course[.]”  (Internal quotation marks omitted.)  Id. “[T]he public has an interest in the prevention of unnecessary litigation, both because of the burden it places on the State and the resulting crowding of the dockets of the courts.   This procedure of trying cases together, which has long been the established practice in this state, assists in expediting business without doing anyone an injustice.”  (Internal quotation marks omitted.)   Id.

“Whether the action[s] arise out of the same transaction or involve identical parties are important factors in determining the propriety of the joinder or the consolidation of actions.”   Clarke v. Ochart, Superior Court, judicial district of Middlesex at Middletown, Docket No. 68018 (April 13, 1993, Higgins, J.) (8 Conn.L.Rptr. 609).   In the present case the action arises out of the alleged acts or omissions of the defendants that resulted in the prolonged exposure to hazardous mold conditions in a temporary school facility operated by the defendants Town of Greenwich and Greenwich Board of Education of the Town of Greenwich.   The plaintiffs assert causes of action sounding in negligence and public nuisance.   In the related matter of Town of Greenwich et al. v. Mobile Modular Express II, LLC et al., Docket No. FST CV116011564S, the defendants Town of Greenwich and Greenwich Board of Education have brought a negligence action against the defendants for failure in the design, engineering, fabrication and construction of the modular units.   The parties in the two cases are almost identical and there are common elements to each of the actions.   Both cases arise out of the same transaction and underlying facts.   A trial date has not been assigned to either case.   Neither case has advanced to the point where some form of consolidation would result in any unreasonable delay.   It is clear, that because of the similarities in the general facts, that there will be enough of an overlap with the witnesses that it makes little sense for the cases to advance on separate tracks during discovery.   If the cases are not consolidated there will be duplication of discovery resulting in unnecessary expense and a waste of scarce judicial resources.   Consolidation for discovery purposes will not result in prejudice to any party.   In fact, the consolidations of these two actions will expedite the discovery phase and will serve the interests of judicial economy and avoid the unwarranted repetition.

As to consolidating the cases for trial the motion is premature.   Both cases are still in their infancy despite the date that the Dibella case was filed.   Notwithstanding the similarities in the underlying actions there is likelihood that one case may be ready for trial before the other.   Discovery may help to illuminate if the cases will continue to travel down the same track.   The court will not consolidate the cases for trial purposes but this is without prejudice to renew at a later date.

ORDER

The motion to consolidate is granted as to discovery and denied without prejudice as to the consolidation for trial.

Brazzel–Massaro, J.

FOOTNOTES

FN1. The action was amended on March 19, 2012 to bring a direct action against apportionment defendants Atlantic Consulting & Engineering, LLC and URS Corporation..  FN1. The action was amended on March 19, 2012 to bring a direct action against apportionment defendants Atlantic Consulting & Engineering, LLC and URS Corporation.

FN2. A motion to consolidate was filed and served in each case..  FN2. A motion to consolidate was filed and served in each case.

FN3. No other objections were filed..  FN3. No other objections were filed.

Brazzel–Massaro, Barbara, J.