Dipti Stash et al. v. Branden Stevens et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE DEFENDANT'S COUNTERCLAIM (# 114)

Pursuant to Practice Book § 10–39 et seq., the plaintiff Dipti Stash filed a Motion to Strike the defendant's counterclaim for apportionment, claiming that it is “legally inappropriate” pursuant to Connecticut General Statutes § 52–102b.   Plaintiff submitted a memorandum law.   The defendants object to the motion and filed a brief in opposition.

Discussion

The plaintiff asserts that Connecticut General Statutes § 52–102b precludes apportionment claims against existing parties.   There is currently no appellate authority directly addressing this question.   At oral argument, the parties acknowledged that Superior Court opinions on this issue are split.

The “majority view” holds that § 52–102b precludes the filing of an apportionment claim against one who is already a party.   See, e.g., Roklin v. Presnell, judicial district of New Haven, Docket No. CV 04 0287569S (March 10, 2006, Taylor, J.) (40 Conn. L. Rptr. 883).   On the other hand, the “minority view” concludes that the statute does not preclude the filing of an apportionment action against existing parties.   See, e.g., Benway v. Belmont, judicial district of Waterbury, Docket No. CV 12 6016131s (March 28, 2013, Roche, J.) (55 Conn. L. Rptr. 824).   Recently, some Superior Court judges have noted that “it may no longer be appropriate to characterize this position as the ‘minority view.’  ․ [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.”  (Citation omitted;  internal quotation marks omitted.)   Prete v. Borrelli, Superior Court, judicial district of New Haven, Docket No. CV 11 6022696S (May 22, 2012, Gold, J.) (54 Conn. L. Rptr. 88, 90 n.1).

The most recent case addressing this issue appears to be O & G Industries, Inc. v. Litchfield Ins. Group, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 12 6006448 S (July 1, 2013, Pickard, J.), which adopts the “minority view.”   In that case, Judge Picard concluded that “by adopting the ‘minority view,’ the purpose of General Statutes § 52–102b is effectuated and a reasonable result is reached.”  Id.

The court has concluded, after a careful review of the aforementioned cases, and others, for example, Ayalon v. Breakstone, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 01 0078878 (December 5, 2003, Cremins, J.), and Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. CV 04 29034 (March 27, 2001, Blue, J.) [29 Conn. L. Rptr. 311], that the so called “minority view” is more persuasive on the issue.   The court observes that familiarity with the case law and arguments by the parties is presumed and thus need not be generally repeated.

As a result, the Motion to Strike is denied.

Vitale, J.

Vitale, Elpedio N., J.