Amy Rivera et al. v. American Industries, Inc. et al. (2013)

Memorandum of Decision on Motion to Strike, # 129

The plaintiffs seek to strike the defendant Costello Industries, Inc.'s apportionment complaint on the ground that the complaint is barred by General Statutes § 52–102b.   For reasons set forth below, the motion to strike is denied.

PROCEDURAL HISTORY AND FACTS

On May 22, 2013, the plaintiffs, Amy Rivera and Sandralee Brown–McKevitt, filed a fourteen-count complaint against the defendants, American Industries, Inc.;   American Asphalt Paving, LLC;  Santoro, Inc.;   Costello Industries, Inc.;   The N.Y. CONN Corporation;  All State Traffic Control, LLC;  and Jacklyn Diaz. In response to a request to revise, the plaintiffs filed a revised complaint on June 13, 2013, in which they allege the following.   Rivera was operating a motor vehicle in which Brown–McKevitt was a passenger.   While traveling on Universal Drive in North Haven, the vehicle's undercarriage struck a manhole cover that the defendant Costello Industries, Inc.,¹ left exposed while stripping and repaving the road.   As a result, the plaintiffs were thrown about the vehicle's interior and suffered personal injuries.   The plaintiffs plead negligence against the defendant in counts seven and eight, respectively.

On June 27, 2013, the defendant filed an answer and special defense, alleging that if Rivera was injured as alleged in the revised complaint, her own negligence directly and proximately caused her injuries.   The plaintiffs filed a reply denying the allegations of the special defense.   On July 9, 2013, the defendant filed an apportionment complaint against Rivera, alleging that her negligence caused Brown–McKevitt's injuries and that liability should consequently be apportioned to her under General Statutes § 52–102b.²

On July 31, 2013, the plaintiffs filed a motion to strike the apportionment complaint on the ground that it is legally insufficient because Rivera is already a party to this action and, therefore, may not be made an apportionment defendant under § 52–102b.   The plaintiffs also filed a supporting memorandum of law.   On August 2, 2013, the defendant filed a memorandum in opposition to the motion to strike.   The matter was heard at short calendar on September 16, 2013.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  Practice Book § 10–39 provides in relevant part:  “(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991);  see also Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013) (motion must be denied where provable facts support cause of action).   Accordingly, “[t]he role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)   Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).

In their memorandum in support of the motion to strike, the plaintiffs argue that under § 52–102b and the cases construing it, the defendant cannot make Rivera an apportionment defendant to Brown–McKevitt's claim because she is already a plaintiff in this action.   The defendant counters that there is a split of authority among the Superior Courts with respect to the issue of whether a defendant may make an existing plaintiff an apportionment defendant.   In the absence of appellate authority on this issue, the defendant argues that this court should side with those trial court decisions concluding that § 52–102b does not prohibit the filing of an apportionment complaint against a person who is already a party to an action.   Alternatively, the defendant argues that although Rivera is a party to the action in its entirety, she is not a party to Brown–McKevitt's claim against it, and, therefore, § 52–102b provides the only means by which it may seek to apportion liability to her.

“General Statutes § 52–102b(a) is 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, 757 A.2d 627 (2000).  Section 52–102b provides in relevant part:  “(a) A defendant in any civil action ․ may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable ․ for a proportionate share of the plaintiff's damages ․”

With respect to the application of § 52–102b to a person who is already a party, “Connecticut appellate authority has not yet determined whether a defendant may bring an apportionment claim or counterclaim against a current party to an action.   There is a split of authority at the Superior Court level on the issue.   One line of cases, which has been referred to as the ‘majority view,’ interprets the plain language of § 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 ․ The contrary view, which is often characterized as the ‘minority view,’ ³ 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 ․ These ‘minority view’ opinions have determined that because § 52–102b is irrelevant to persons that are already parties to a suit ․ the law does not preclude the filing of an apportionment action against existing parties.”  (Internal quotation marks omitted.)   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.).

“Generally, the decisions of the court that adopt the majority rule do so on the basis of the plain language and legislative history of § 52–102b as well as the fact that apportionment is already available to parties to negligence actions.” ⁴  (Internal quotation marks omitted.)   Graham v. Destan, Superior Court, judicial district of Waterbury, Docket No. CV–07–5005744–S (March 4, 2008, Alvord, J.) (45 Conn. L. Rptr. 146, 147).  “For example ․ [i]t is clear from the plain language of § 52–102b(a) that the statute applies only to persons not already parties .. .” (Citation omitted;  emphasis in original;  internal quotation marks omitted.)   Roklin v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV–04–0287569–S (March 10, 2006, Taylor, J.) [40 Conn. L. Rptr. 883].  “This conclusion is further buttressed by a review of the legislative history of General Statutes § 52–102b.   Seeking a clarification on whether the term party as used in the statute refers to someone who is a party to the lawsuit ․ Representative Lawlor, one of the proponents of the bill, replied:  ‘Yes, in fact, it would mean anyone who is actually a party to the lawsuit.’  “ (Internal quotation marks omitted.)  Id.

Courts adopting the minority view counter that “[a]s 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.”   Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 423742 (June 14, 2000, Levin, J.) (27 Conn. L. Rptr. 403, 404).  “First, the words of § 52–102b simply do not say that a defendant may not file an apportionment complaint against an existing party.   It says that a defendant ‘may serve a writ, summons and complaint upon a person not a party ’ ... (Emphasis in original.)  Id., 405.  “The title of the statute is ‘Addition of person[s] as defendant[s] for apportionment of liability.’  “ (Emphasis in original.)   Id. This conclusion is further supported by the language of General Statutes § 52–102b(f) which states:  “ ‘This section shall be the exclusive means by which a defendant 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 in original.)  Id.

“Second, the legislative history is strikingly silent on whether or how an apportionment claim may be asserted by a defendant against another party.”   Id. Courts adopting the minority view opine that this silence is informative when considered in light of the context in which § 52–102b was enacted:  “Prior to the enactment of the statute in 1995, judges routinely entertained apportionment complaints by defendants against other parties ․ If the legislature had intended to preclude apportionment claims by defendants against existing parties, it could have done so and would have done so in clear language.   It did not.”  (Internal quotation marks omitted.)   Blazer v. Gil, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–07–5003123–S (June 15, 2007, Tobin, J.) (43 Conn. L. Rptr. 619, 620–21).

Minority view courts also reason that in practice, “disallowing an apportionment counterclaim could create an issue if [the plaintiff driver] were to withdraw from the case.   Where there is no cross claim between the plaintiffs ․ the defendant is without means to apportion liability for the passenger's injuries against her co-plaintiff driver, if that driver withdraws from the case, because the [120–day] period allotted to serve an apportionment complaint under § 52–102b may have already passed.⁵  [T]he defendant would then be left to bear all of the damages to [the passenger] because [the plaintiff driver] is no longer a party to the action.”   Benway v. Belmont, Superior Court, judicial district of Waterbury, Docket No. CV–12–6016131–S (March 28, 2013, Roche, J.) (55 Conn. L. Rptr. 824, 825–26).   This outcome would contravene the “clear ․ purpose of § 52–102b ․ to effectuate a sharing of the responsibility between potential tortfeasors ․” (Internal quotation marks omitted.)   Baez v. Toledo, Superior Court, judicial district of New Haven, Docket No. CV–12–6004897–S (August 16, 2012, Markle, J.) (54 Conn. L. Rptr. 533, 535).

In the present case, Rivera is currently a plaintiff to the action;  under the majority view, § 52–102b would therefore bar the defendant's apportionment complaint against her.   It is noted that Brown–McKevitt has elected not to bring a separate cause of action against Rivera and that the 120–day period for filing an apportionment complaint under § 52–102b expired on September 25, 2013.⁶  If the apportionment complaint is barred, the defendant would have no means by which to put the issue of Rivera's liability before a jury if she were to withdraw from the present action.   Conversely, the defendant's apportionment complaint against Rivera may go forward under the minority view because § 52–102b is irrelevant where a defendant brings an apportionment claim against a current party.  “[W]hen two constructions [of a statute] are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results ․ In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.”   (Citation omitted;  internal quotation marks omitted.)  Stoni v. Wasicki, 179 Conn. 372, 376–77, 426 A.2d 774 (1979).  “By adopting the minority view, this court ensures that the purpose of § 52–102b is effectuated and a reasonable result is reached.”  Baez v. Toledo, supra, 54 Conn. L. Rptr. 535.   The court concludes that the minority view is more persuasive, and that § 52–102b does not apply here because the defendant does not seek to add an additional party.

As to whether a plaintiff is a “party” to her co-plaintiff's claim against the same defendant within the meaning of § 52–102b, a number of Superior Court judges adopting the minority view have concluded that “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 ․ because [the plaintiff driver] is not properly considered a ‘party’ in the action brought by the [plaintiff passenger].”  Prete v. Borrelli, Superior Court, judicial district of New Haven, Docket No. CV–11–6022696 (May 22, 2012, Gold, J.) (54 Conn. L. Rptr. 88, 89).   These judges have reasoned that “[e]ach plaintiff has a separate and distinct cause of action under the Connecticut definition of that term ․ A single tortious act resulting in personal injury to more than one person may give rise to as many causes of action as there are persons injured, so as to permit a separate action for damages against the wrongdoer by each injured person.”  (Citation omitted;  internal quotation marks omitted.)  Orengo v. Barksdale, Superior Court, judicial district of Fairfield, Docket No. CV–09–5026062 (January 26, 2010, Levin, J.) (49 Conn. L. Rptr. 357, 357).

In Prete v. Borrelli, supra, 54 Conn. L. Rptr. 88, the plaintiffs, a driver and passenger, brought a negligence action against the defendant driver and his employer.   The plaintiff driver subsequently moved to strike the defendants' apportionment complaint.   In its decision denying the motion to strike, the court concluded that “each of the plaintiffs ․ has essentially asserted a separate negligence claim against the defendants ․ As a result, [t]his case is functionally two cases.”  (Citation omitted;  internal quotation marks omitted.)  Id., 89.   In reaching this conclusion, the Prete court adopted the “functional analysis” of Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. 429034 (March 27, 2001, Blue, J.) (29 Conn. L. Rptr. 311, 312), which, like Prete, was factually similar to the present case.

In Sharif, the court observed that “[t]he legislature has not defined the term ‘party’ “;  and reasoned that “a functional analysis is called for” in determining whether a plaintiff driver was a party to a plaintiff passenger's claim within the meaning of § 52–102b.  Sharif v. Peck, supra, 29 Conn. L. Rptr. 311–12.   Under this analysis, “[i]f [the two plaintiffs] had retained separate counsel and filed their respective actions independently, there could be no question that [the defendant] could file an apportionment complaint against [the plaintiff driver] in the action brought by [the plaintiff passenger].”  Id., 312.  “Functionally, it is no different” where the plaintiffs bring their claims in separate counts;  id.;   accordingly, “[the plaintiff driver] is not a party to [the plaintiff passenger's] claim.”  Id. Put differently, “to say that [a plaintiff driver] is a party to [a plaintiff passenger's] personal injury lawsuit would elevate form over substance”;  (internal quotation marks omitted) id.;   a practice that “[a]ppellate courts of our jurisdiction have long eschewed ․” (Internal quotation marks omitted.)  Orengo v. Barksdale, supra, 49 Conn. L. Rptr. 357.

In the present case, the plaintiffs have elected to state their negligence claims in separate counts rather than bring independent actions against the defendant.   Under the foregoing reasoning, the plaintiffs' claims are functionally two cases, and, therefore, Rivera is not a party to Brown–McKevitt's action against the defendant within the meaning of § 52–102b.   Accordingly, the defendant properly seeks to add Rivera as a defendant for apportionment of liability for Brown–McKevitt's alleged injuries.

The motion to strike is denied.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. As Costello Industries, Inc., filed the apportionment complaint that is the subject of the present motion to strike, this memorandum will refer to it as the defendant..  FN1. As Costello Industries, Inc., filed the apportionment complaint that is the subject of the present motion to strike, this memorandum will refer to it as the defendant.

FN2. General Statutes § 52–102b, entitled “Addition of person as defendant for apportionment of liability purposes,” provides in relevant part:  “(a) A defendant in any civil action ․ may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.   Any such writ, summons and complaint ․ shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.”.  FN2. General Statutes § 52–102b, entitled “Addition of person as defendant for apportionment of liability purposes,” provides in relevant part:  “(a) A defendant in any civil action ․ may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.   Any such writ, summons and complaint ․ shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.”

FN3. “As one court has noted, [a] review of the most recent case law suggests that the division among the [S]uperior [C]ourt 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.)   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.)..  FN3. “As one court has noted, [a] review of the most recent case law suggests that the division among the [S]uperior [C]ourt 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.)   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.).

FN4. General Statutes § 52–572h replaced the common law of joint and several liability with a system of apportioned liability.   See Viera v. Cohen, 283 Conn. 412, 422–23, 927 A.2d 843 (2007).  Section 52–572h provides in relevant part:  “(c) In a negligence action to recover damages resulting from personal injury ․ if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages ․”.  FN4. General Statutes § 52–572h replaced the common law of joint and several liability with a system of apportioned liability.   See Viera v. Cohen, 283 Conn. 412, 422–23, 927 A.2d 843 (2007).  Section 52–572h provides in relevant part:  “(c) In a negligence action to recover damages resulting from personal injury ․ if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages ․”

FN5. The 120–day limitation on service of an apportionment complaint in § 52–102b(a) is mandatory, not directory.  Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011)..  FN5. The 120–day limitation on service of an apportionment complaint in § 52–102b(a) is mandatory, not directory.  Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).

FN6. This action was made returnable to the court on May 28, 2013..  FN6. This action was made returnable to the court on May 28, 2013.

Nazzaro, John J., J.