MSC LLC v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

Before the court is a motion to strike filed by the apportionment defendant MSC of Fairfield County, LLC (“MSC”), challenging Count Three of an apportionment complaint filed by defendant Heritage General Contractors, LLC (“Heritage”).   MSC contends that Count Three is legally insufficient because MSC, as subrogor of the plaintiff Scottsdale Insurance Co. (“Scottsdale”), cannot be made an apportionment defendant under Conn. Gen.Stat. § 52–102b.

“Section 52–102b(a) grants the right to file an apportionment complaint to a defendant in any civil action to which Section 52–572h applies ․ The Supreme Court has stated that a civil action to which Section 52–572h applies within the meaning of 52–102b, means a civil action based on negligence.   Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793–95, 756 A.2d 237 (2000).”  (Internal quotation marks omitted.)   Altavela v. Scott Swimming Pools, Inc., Superior Court, Judicial District of Danbury, Docket No. CV 03 0350723 (November 22, 2005, Schuman, J.) [40 Conn. L. Rptr. 322].   Thus, our statutes allow for apportionment of responsibility among negligent defendants.   But, since Connecticut is a comparative negligence jurisdiction, assignment of responsibility between a negligent defendant and a negligent plaintiff is accomplished under principles of comparative negligence.   See Barry v. Quality Steel Products, Inc., 263 Conn. 424, 442–46, 820 A.2d 258 (2003).

MSC argues that, since Scottsdale legally stands in the place of MSC, any defenses Heritage would have against MSC must, of necessity, be asserted against Scottsdale.   It is well settled that “[an] insurer can take nothing by subrogation but the rights of the insured, and is subrogated to only such rights as the insured possesses.   The principle has been frequently expressed in the form that the rights of the insurer against the wrongdoer cannot rise higher than the rights of the insured against such wrongdoer, since the insurer as subrogee, in contemplation of law, stands in the place of the insured and succeeds to whatever rights he may have in the matter.”  (Internal quotation marks omitted.)  Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 88, 670 A.2d 1296 (1996).   In short, subrogation “gives an insurer the right to stand legally in the place of its insured.”  Amica Mutual Ins. Co. v. Barton, 1 Conn.App. 569, 575, 474 A.2d 104 (1984).

There are two known trial court decisions on this precise subject.   In Connecticut Life and Casualty Insurance Co. v. Kanter, Superior Court, Judicial District of Danbury, Docket No. 32 22 91 (Moraghan, J., July 29, 1996) [17 Conn. L. Rptr. 282], Judge Moraghan held that a subrogor of the plaintiff insurance company could not be joined in an apportionment action by the defendant.   Judge Wagner adopted Judge Moraghan's reasoning in Hartford Insurance Company a/s/o Ramco Technologies, Inc. v. Independent Packaging, Inc., Superior Court, Judicial District of Hartford, Docket No. CV 03–0823212 S (Wagner, JTR, Sep. 18, 2003) [35 Conn. L. Rptr. 493], striking an apportionment complaint against a subrogor.   The court is aware of no appellate caselaw authority as to this issue.

Citing the Kanter and Ramco decisions, MSC argues that because this action was brought by Scottsdale as MSC's subrogee, MSC has the same legal status as Scottsdale, i.e., a plaintiff, and therefore is not subject to an apportionment complaint.   Scottsdale contends that any issues of comparative responsibility between Heritage and MSC can be addressed by a special defense.

In opposition, Heritage suggests that the underlying complaint filed by Scottsdale against Heritage is “ambiguous” as to whether Scottsdale is subrogated to the rights of MSC or of Hales Westport Developers, LLC (“Hales”) or of both.   Given this perceived ambiguity, Heritage argues that it is “possible” that MSC may not in fact be a subrogor, and the motion to strike should be denied on that basis.   The court disagrees.

It is fundamental that, in ruling on a motion to strike, the court must construe the pleadings broadly and realistically, rather than narrowly and technically.  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   A fair reading of the underlying complaint leads to a conclusion that Scottsdale was subrogated—under the same policy of insurance, policy number BCS0021938 (Complaint, ¶¶ 2 and 4)—to the rights of MSC and Hales, who were both under contract to act as general contractors on the construction project known as Hales Court in Westport.  (Complaint, ¶ 13.)   Heritage entered into a contract with MSC to provide rough framing and finish carpentry for that project.  (Complaint, ¶ 16.)   Pursuant to the policy a liability claim was asserted, based on defective construction attributed in some part to Heritage's acts or omissions, and subsequently Scottsdale paid $476,463.89 in satisfaction of the claim.  (Complaint, ¶ 16.)

Apparently, the “ambiguity” that Heritage seizes upon is the fact that Scottsdale's complaint does not specify whether payment of the liability claim was made on behalf of MSC or on behalf of Hale. Without that specificity, Heritage argues that MSC is only a “possible subrogor,” and not an actual subrogor that cannot be made an apportionment defendant.

In the view of the court, this is immaterial.   Scottsdale was obligated by a preexisting contract of insurance to pay the losses of its insureds, MSC and Hale. Upon such payment, Scottsdale became subrogated to any rights that its insureds might have had against the party who has caused the loss.   It is the fact of the payment directly or indirectly for the benefit of the insured, not the name of the payee, which gives rise to the right of subrogation.

The court finds the logic of the Kanter and Ramco decisions to be persuasive and holds that a subrogor may not be joined in an apportionment action by a defendant.   The Motion to Strike Count Three of the Apportionment Complaint is therefore GRANTED.

BY THE COURT,

Sheridan, J.

Sheridan, David M., J.