Cynthia Herman et al. v. Albert Fresenius et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE APPORTIONMENT COMPLAINT

I. INTRODUCTION AND SUMMARY OF FACTS

This is an action for personal injuries by plaintiffs Cynthia Herman, Jacob Herman and Jeannette Rice against the defendants, Albert Fresenius, operator, and Arthur Wakeley, owner, arising out of injuries allegedly sustained in a two-car rear-end motor vehicle accident which occurred on June 26, 2011 in Stratford, Connecticut.

By way of apportionment complaint dated August 28, 2013, and made returnable to this Court on October 8, 2013, the defendants have named Travelers Indemnity Company as an apportionment defendant.   The defendants allege that the accident in which Fresenius rear-ended the plaintiffs' vehicle was caused by the negligence of “the owner/operator of an unidentified non-contact vehicle which was traveling in front of the Plaintiff's vehicle.”   The defendants specifically allege that the plaintiffs' injuries, losses and damages were proximately caused by the negligence of the unidentified, non-contact tortfeasor in the following ways:  “(a) in that he/she was inattentive and failed to keep a proper lookout;  (b) in that he/she failed to keep and operate said automobile under proper control;  (c) in that he/she failed to make reasonable use of his/her faculties and senses so as to avoid the accident;  and (d) in that he/she stopped short/sudden stop.”   The Defendants also allege that, at the time of the accident, the plaintiffs were in a vehicle insured by the apportionment defendant, Travelers, that the policy provided for uninsured motorist benefits, and that Travelers is liable to the plaintiffs for the imputed negligence of the unidentified, non-contact tortfeasor.

The apportionment defendant has moved to strike the apportionment complaint on the ground that it is legally insufficient because a defendant cannot bring the plaintiffs' uninsured motorist benefits provider into an action via apportionment where the plaintiff does not allege that the accident was caused by an unidentified tortfeasor and the plaintiffs have not asserted any direct claims against their own uninsured motorist benefits provider.

II. LEGAL STANDARD

“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).  “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  Bernhard–Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008).

III. ANALYSIS

The issue before the court is whether a defendant may bring the plaintiff's uninsured motorist benefits provider into an action via apportionment where the plaintiff does not allege that the accident was caused by an unidentified tortfeasor and has not asserted any direct claims against his own insurance provider.

“The Supreme Court has ․ made clear that, when a plaintiff brings an action against his or her own carrier for the negligence of an unidentified driver, the other defendant ․ may seek apportionment of that negligence against the plaintiff's carrier.   However, in the situation where the plaintiff has not brought an action against his or her own carrier, there is a split of trial courts as to whether Collins [v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001),] is controlling.   There are two decisions of the trial court, opining that it is ․ The majority of the trial courts, however, have distinguished the present situation from the factual situation presented in Collins.”  (Citations omitted, emphasis in original.)   True v. Stratton, Superior Court, judicial district of New Britain, Docket No. CV–10–6005127–S (January 26, 2011, Young, J.) (51 Conn. L. Rptr. 368, 369).

A comprehensive reading of the Collins decision indicates that the Supreme Court explicitly distinguished the factual circumstances presented in Collins from those presented in the case at bar.   In Collins, the Supreme Court explained that apportionment was appropriate because in that case the plaintiff had originally sued, and subsequently settled with, her insurance carrier, which stood in the shoes of the unidentified driver.  “This is especially significant because Colonial Penn was brought into the litigation solely to litigate the blameworthiness of the unidentified driver.   We conclude that in this case there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the underinsured carrier is named in the complaint to act as the unidentified driver's surrogate.”  (Emphasis omitted.)  Collins, supra, 257 Conn. 743–44.   In contrast, in this case, the plaintiffs have not made any allegations related to an unidentified tortfeasor and have not made the uninsured motorist benefits carrier a defendant to this action to stand in the shoes of the alleged unidentified tortfeasor.   Therefore, any reliance by the defendants on Collins is misplaced.

In a case factually similar to the one at bar, Santana v. Tom, Superior Court, judicial district of New Haven at Meriden, Docket No. CV–07–5002545–S (Nov. 17, 2008, Rubinow, J.) (46 Conn. L. Rptr. 665), one of the named defendants served the plaintiff's automobile insurance carrier with an apportionment complaint and alleged that the accident was caused by an unidentified tortfeasor.   The apportionment complaint further alleged that the plaintiff's carrier was bound to provide uninsured motorist coverage for the actions of the unidentified tortfeasor.   The plaintiff's carrier moved to strike the apportionment complaint.

The facts of this case raise the same question posed by the court in Santana, i.e., “[M]ay defendants in a personal injury action seek apportionment against the plaintiff's uninsured motorist policy when neither that carrier nor an uninsured motorist has been named as a defendant by the plaintiff in the underlying action?”  Id., 666.   Following its analysis of General Statutes § 52–102b and 52–572h and the Supreme Court's decision in Collins, the court determined that “[t]he critical distinction between the present case and Collins is that the named plaintiff did not serve a complaint upon his uninsured motorist carrier, or seek to recover damages from an unidentified driver directly or through a surrogate by naming that unidentified driver as a defendant in his original or amended complaint.”   Id., 668.   The court therefore concluded, “the defendants have no basis on which to apportion [the plaintiff's carrier]:  they lack privity of contract with [the plaintiff's carrier] and cannot require [the plaintiff's carrier] to stand in the shoes of an unidentified driver who was not named as a defendant by the plaintiff in his complaint.   The surrogate analogy relied on by the Collins court is fundamentally inapplicable in this situation because the plaintiff has not identified a tortfeasor for whom [the plaintiff's carrier] might be contractually liable.”  Id. The court granted the carrier's motion to strike the apportionment complaint.  Id.

The apportionment defendant has cited several other Superior Court decisions which have followed the reasoning in Santana and have similarly struck apportionment complaints filed against the plaintiff's carrier for the alleged negligence of an unidentified tortfeasor where the plaintiff did not allege the existence of an unidentified tortfeasor and did not make the carrier a defendant in the original action.   See Kirchhoff v. Mesallum, Superior Court, judicial district of New London, Docket No. CV–12–6014192–S (February 19, 2013, Devine, J.) (56 Conn. L. Rptr. 9, 11) (“This court follows the majority opinion and holds that a defendant in a tort action arising out of a motor vehicle collision may not seek apportionment against a plaintiff's uninsured motorist policy provider when neither the insurance provider nor the uninsured motorist have been served and added as a defendant by the plaintiff in the original action”);  Lugg v. Kalfaian, Superior Court, judicial district of New Haven, Docket No. CV–12–6033110–S (April 3, 2013, Wilson, J.) (55 Conn. L. Rptr. 840, 841) (striking apportionment complaint under identical factual and procedural circumstances);  Santos v. Jinete, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–10–6007151–S (May 18, 2011, Jennings, J.T.R.) (52 Conn. L. Rptr. 11, 14) (stating that “[t]his court will also follow the Santana line of cases” and granting the motion to strike apportionment complaint);  True v. Stratton, supra, 51 Conn. L. Rptr. 370 (“This court agrees with the reasoning of Judge Rubinow in Santana.   The absence of a claim by the plaintiff as to an unidentified tortfeasor is a factual distinction of importance which makes the holding in Collins distinguishable”);  Mathews v. Blauvelt, Superior Court, judicial district of New London, Docket No. CV–10–6002940–S (June 25, 2010, Martin, J.) (50 Conn. L. Rptr. 181, 183) (“In the present case, the plaintiff has not named the apportionment defendant or the unidentified driver as defendants in the underlying claim ․ [T]he defendants may not enforce the plaintiff's right to uninsured motorist coverage under the subject policy against the apportionment defendant, and as a result, the defendants' apportionment complaint is legally insufficient”);  DiPaolo v. Rocco, Superior Court, judicial district of New Haven, Docket No. CV–09–5028530–S (April 6, 2010, Wilson, J.) (49 Conn. L. Rptr. 591, 593) (“The plaintiff is ․ the only party in the present case who may allege liability by virtue of the subject policy against the apportionment defendant.   Because he has not, apportionment is unavailable to the defendant as a surrogate for the unidentified driver, since he or she has not been sued by the plaintiff”);  Massaro v. Craig, Superior Court, judicial district of New Haven, Docket No. CV–06–5007556–S (July 27, 2009, Wilson, J.) (48 Conn. L. Rptr. 314, 314) (“This court agrees with the reasoning of the Santana decision, and for the reasons elucidated in that opinion ․ grants [the plaintiff's insurance carrier's] motion to strike the apportionment complaint”).

“All of these cases reason as such because apportionment complaints cannot be brought against unidentified persons and the uninsured motorist provider stands in the shoes of the phantom driver.   Additionally, these cases hold that this type of apportionment complaint is inappropriate because a defendant may not seek apportionment from a plaintiff's uninsured motorist provider because there is no privity of contract between the defendant and the plaintiff's insurance company.”  Santos v. Jinete, supra, 52 Conn. L. Rptr. 12.

Most of these cases, including Massaro, also distinguish Collins by noting that “[t]he critical distinction ․ is that [unlike Collins ] the named plaintiff did not serve a complaint upon his uninsured motorist carrier, or seek to recover damages from an unidentified driver directly or through a surrogate by naming the unidentified driver as a defendant in his original or amended complaint.”  Santana v. Tom, supra, 46 Conn. L. Rptr. 668.   As explained in other Superior Court decisions, including Santos v. Jinete, supra, 52 Conn. L. Rptr. 12–15, this interpretation is supported by the plain language of two key passages in the Collins decision.   First, the Supreme Court in Collins held:  “[I]t would be inequitable and contrary to the spirit underlying § 52–572h, to allow a plaintiff who does not have uninsured motorist coverage and who has collected an amount pursuant to a settlement in an automobile accident involving multiple tortfeasors, to deny application of the principles of Tort Reform II, namely, that each individual tortfeasor pay its fair share or portion of damages sustained.   This is especially significant where, as in this case, the insurance company was brought into the litigation solely to litigate the blameworthiness of the unidentified driver.   We conclude that there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the underinsured carrier is named in the complaint to act as the unidentified driver's surrogate.”  (Emphasis altered.)  Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 743–44.

The following footnote from Collins is also instructive to this court's analysis:  “Our decision in the present case is not inconsistent with our decision in Eskin v. Castiglia, [253 Conn. 516, 753 A.2d 927 (2000) ].   In Eskin, the defendant sought to file an apportionment complaint, pursuant to General Statutes § 52–102b, against an unidentified hit-and-run driver, under a John Doe name ․ We held that the defendant could not file such a complaint for two reasons.   First, under § 52–102b, we recognized that there has to be an identifiable person upon whom to serve a complaint ․ Second, we recognized that allowing such a complaint would be contrary to the policy underlying § 52–572h that limits ‘the universe of negligence’ to be considered to identifiable persons ․ Despite the fact that, in the present case, the unidentifiable tortfeasor, for whose conduct the plaintiff's uninsured motorist carrier settled, was also a hit and run driver, Eskin does not control our decision herein.   Because Colonial Penn already was in the case as an original codefendant, the obstacle of § 52–102b is not present.   Thus, ‘the universe of negligence’ in this case includes the negligence of the unidentified driver because Colonial Penn is acting, in part, as a surrogate.”  (Citations omitted.)  Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 739–40 n.21.

The court concludes that the reasoning of the above majority of Superior Court decisions, which is supported by the language of the Collins decision and consistent with the plain language of the relevant statutes, is persuasive.   In the present case, the apportionment plaintiffs seek to apportion liability to the apportionment defendant, the uninsured motorist coverage provider, where the apportionment defendant and the unidentified motorist were not served or joined by the plaintiffs in the underlying action.   This court follows the majority opinion and holds that a defendant in a tort action arising out of a motor vehicle collision may not seek apportionment against a plaintiff's uninsured motorist policy provider when neither the insurance provider nor the uninsured motorist have been served and added as a defendant by the plaintiff in the original action.

ORDER

For the foregoing reasons, the court hereby grants the apportionment defendant's motion to strike.

Sommer, J.

Sommer, Mary E., J.