Rebecca Rainof, Administratrix of Estate of Mila Fainof v. Santos R. Munguia et al. (2013)

RULING ON MOTION FOR LEAVE TO AMEND COMPLAINT AND CITE IN ADDITIONAL DEFENDANT

The plaintiff has moved for leave to amend her complaint and cite in an additional party, Dennis Giselle (Giselle).   The case is scheduled for jury selection on August 6, 2013.   For the reasons which follow, the court denies the plaintiff's motion.

PROCEDURAL BACKGROUND

The First Lawsuit

The plaintiff Administratrix of the Estate of Mila Rainof initially brought suit against Dennis Giselle (Giselle) in case styled, Rainof v. Giselle et al., NNH–CV–10–6010862 (the first lawsuit).   That case arises out of the exact same incident that forms the basis of this second action, in which the plaintiff has sued Santos R. Munguia (Munguia) and R & M Trucking Corp. (R & M).  (Rainof v. Munguia, NNH–CV–11–6023689.)   In short, the plaintiff alleges in each lawsuit that on April 19, 2008, the plaintiff's decedent was struck and killed as the result of the negligence of Giselle, when the vehicle driven by Giselle struck her as she was walking through an intersection.

In the first lawsuit, the plaintiff also sued one Santos Hernandez (Hernandez) and Joseph Cory Holdings, LLC. It was alleged in the first lawsuit that Hernandez owned and was driving a truck bearing the words “Crate & Barrel” in the immediate vicinity of the plaintiff's decedent when the accident occurred.   The plaintiff has alleged that this truck somehow hindered the ability of Giselle to see the decedent (or otherwise contributed to the accident) and that this alleged negligence contributed to the accident.   Hernandez filed a motion for summary judgment in the first lawsuit, as it became clear that he was not the driver of the truck in question.   Indeed, he was not even in the City of New Haven on the date of the incident.   The court, Licari, J., granted that motion on November 1, 2010.   On November 17, 2011, the court, Blue, J., granted the defendant Joseph Cory Holdings, LLC's motion for summary judgment as well.   The only remaining defendant in the first action is Giselle.   To date, the defendant Giselle has never attempted to cite in anyone for apportionment purposes pursuant to General Statutes § 52–102b and § 52–572h.

The Second Action

After summary judgment was granted in the first lawsuit as to Hernandez, on September 21, 2011, the plaintiff returned to court a second action against the “right” defendants under General Statutes § 52–593 (the “wrong defendant” statute.)   This time the plaintiff sued Santos R. Munguia (Munguia) (who apparently was driving and/or owned the vehicle that is alleged to have blocked Giselle's view of the decedent) and R & M Trucking Corp. (R & M) (also alleged to be the owner/operator of that vehicle).   When she brought the second action, the plaintiff did not sue Giselle, although by her own admission she could have done so.   In the second action, neither defendant cited in Giselle for apportionment purposes pursuant to General Statutes § 52–102b/52–572h.

On November 7, 2011, the court, Silbert, J., granted the plaintiff's motions to consolidate in each case.

The Current Motion

On April 10, 2013, the plaintiff filed a “Motion For Leave to Amend Complaint and Cite in Additional Defendant” in this action.   In that motion, the plaintiff is seeking to amend her complaint and cite in as a party Giselle.   The basis for the plaintiff's motion is convoluted, but it boils down to this:  the plaintiff wants to amend her complaint and cite in Giselle, so that his negligence can be apportioned under General Statutes § 52–572h(c) & (f)(4)-(5).  (See, paragraphs six and seven of plaintiff's motion to amend complaint and cite in dated April 10, 2013).   Under those statutes, a jury may apportion negligence only as to “parties.”  (Emphasis added.)   See, General Statutes § 52–572h(c).

In support of her motion, the plaintiff cites Practice Book sections 9–18, 9–19, 9–22, 10–60, as well as General Statutes §§ 52–102 and 52–107.   The reality is, however, that in the substance of the plaintiff's motion, she (the plaintiff ) is attempting to cite in Giselle for apportionment purposes;  this despite the fact that the plaintiff did not sue Giselle when she brought the second action, and the defendants have not cited him in for apportionment purposes.   It is clear that the plaintiff does not need to sue Giselle in the second action in order to recover against him:  she has already sued him in the first lawsuit, and jury selection is scheduled to begin in that suit (as well as this suit) on August 6, 2013.   The plaintiff's sole stated purpose for her motion is to amend her complaint and cite in Giselle, so that his negligence can be apportioned with that of Munguia and R & M in this lawsuit.   To be clear, the proposed amended complaint merely states a direct action against Giselle:  however the relief requested and the stated purpose of the motion is that the proposed party (Giselle) be cited in solely so that his negligence can be apportioned pursuant to General Statutes § 52–572h(c) and § 52–572h(f)(4)–(5).

The first problem with the plaintiff's motion is that:  “Section 52–102b(a) establishes a limit of 120 days from the return date specified in the original complaint within which defendants may serve an apportionment complaint on others who are not parties to the action, and who are or may be liable for a proportionate share of the plaintiff's damages.”  (Emphasis added.)  Pedro v. Miller, 281 Conn. 112, 116 (2007).   In this lawsuit, the defendants have not moved to cite in Giselle.   Moreover, the defendants could have moved to cite in Giselle within 120 days of the return date.   In the case at bar, it is the plaintiff that is attempting to cite a party in for apportionment purposes.   This despite the fact that the plaintiff did not sue Giselle when she first brought this lawsuit.

“The decision whether or not to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the court.  Washington Trust v. Smith, 241 Conn. 734, 747 (1997).  “Factors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the applicant's presence will enable the court to make a complete determination of the issues.”  A. Secondino & Son, Inc. v. LoRicco, 19 Conn.App. 8, 14 (1989).   With regard to amendment of the pleadings:  “It is well settled that whether to allow an amendment to the pleadings rests within the discretion of the trial court.”  Summitwood Development, LLC v. Roberts, 130 Conn.App. 792, 800, cert. denied, 302 Conn. 942 (2011).  “Amendments should be made seasonably.   Factors to be considered in passing on a motion to amend are the length of the delay, fairness to opposing parties and the negligence, if any, of the party offering the amendment ․ The essential tests are whether the ruling of the court will work and injustice to either [party] and whether the granting of the motion will unduly delay a trial.”  (Emphasis added.)  Willamette Management Associates, Inc. v. Palczynski, 134 Conn. 58, 65 (2012).   In the case at bar, all of the above factors militate against allowing the amendment/motion to cite in at this late date.

There is no viable reason for the plaintiff to cite in Giselle other than an effort to have his negligence apportioned, as he has already been sued and is a defendant in the first lawsuit.   That being the case, the plaintiff still seeks to cite in Giselle by means of a direct action against him (even though she did not sue him when she first brought suit in this, the second action), solely so that his negligence can be apportioned with the negligence of Munguia and R & M in the second action.   Allowing this attempt at this late date will certainly interfere with the trial of this case which is set for August 6, 2013.

Timeliness

The first lawsuit was brought to court on May 7, 2010.   The second action was brought against Munguia and R & M on September 21, 2011.   The court specifically asked the plaintiff why she did not move to cite in Giselle in this action on or near the same date the second action was brought on September 21, 2011.   No reason was given.   Moreover, the plaintiff clearly was aware on that date of the identity of Giselle when she brought the second action—suit was pending against him.   When a party is cited in as a defendant he or it is entitled to the same service of process that would have been required if made a defendant at the beginning of the action.   This then includes ordering the clerk of the court to provide an appropriate summons for the formal service and citing in the proposed defendant.   The cited in party or parties will then be afforded all of the procedural vehicles available to challenge the adequacy of the complaint and to assert all available defenses.   This will at the very least include a statute of limitations defense, as well as the propriety of a plaintiff attempting to cite a party in for apportionment purposes.   As discussed above, even though the plaintiff is proposing service of a direct action against Giselle, she admits that she is only seeking to cite Giselle in for apportionment purposes.  Section 52–102b(f) provides, however, that “[t]his section shall be the exclusive means by which a defendant [not a plaintiff] may add a person who is or may be liable pursuant to section 52–572h for a proportionate share of the plaintiff's damages as a party to the action.”  (Emphasis added.)   At the very least the above two issues (not to mention other motions pertaining to the proposed complaint) will need to be litigated in full.   This will inevitably delay the trial.   Had the motion to amend/cite in been filed back in 2011, this clearly would not be the case.   The plaintiff has offered no reason why this motion could not have been filed and litigated years ago.   The failure to do so will clearly interfere with the orderly litigation and trial of the case.   It will consume more of the court's time (not to mention expense to the defendants) to now, at this late date, litigate all of the legal issues that inevitably flow from the plaintiff's proposed complaint, only some of which are touched on by the court above.

In sum the length of the delay by the plaintiff in filing this motion was substantial, and was due solely to the plaintiff.   It would be unfair to the defendants at this late date to submit them to the amended complaint, the granting of which will substantially delay the trial of this case which is set for August 6, 2013.   No reason has been proffered by the plaintiff for the delay in the filing of this motion.   Finally, the Practice Book and statutory sections cited by the plaintiff do not provide authority to allow the citing in of Giselle for apportionment purposes, and the presence of Giselle is not necessary for the court or jury to make a complete determination of the issues in this case.

For the foregoing reasons, the plaintiff's motion is denied.

Frechette, J.

Frechette, Matthew E., J.