Ricardo Gibson v. Gym Doctor et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 120

ISSUE

Whether the court should grant a defendant's motion to strike the notice of apportionment on the grounds that it fails to comply with the requirements of General Statutes § 52–102b and seeks to apportion liability based on the plaintiff's product liability claim.

FACTS

The plaintiff, Ricardo Gibson, filed a fifteen-count complaint on August 7, 2013.   Dimeo Construction Company (Dimeo) and Gym Doctor, Incorporated (Gym Doctor) were named as defendants, along with four other codefendants.¹  In the relevant parts of the complaint, the plaintiff alleges the following facts.

Both Gym Doctor and Dimeo engage in a similar business:  designing, manufacturing, assembling, merchandising, advertising, producing, and distributing basketball hoop equipment.   One or both of the defendants ² sold a basketball hoop to the city of Waterbury and installed the basketball hoop in the gymnasium of Jonathan Reed Elementary School in Waterbury.   On or about September 18, 2012, the plaintiff, an employee of the City of Waterbury Board of Education, was using the basketball hoop when it collapsed and the backboard landed on top of him, causing him physical injury.   The plaintiff seeks money damages for negligence and product liability from both defendants.

Gym Doctor filed a notice of apportionment on September 11, 2013, in order to provide notice of its intent to seek apportionment against the codefendants, including Dimeo.   On September 25, 2013, Dimeo filed the present motion to strike the notice of apportionment as it pertains to Dimeo, as well as a memorandum of law in support of the motion.   Gym Doctor filed an objection to the motion to strike and a memorandum of law on October 30, 2013.³  Oral argument was heard by the court at short calendar on November 12, 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).  “Our rules of practice include Practice Book § 10–39 et seq., which governs motions to strike;  its proscriptions for its purpose and use are carefully set out.”  Heim v. California Federal Bank, 78 Conn.App. 351, 363, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).  “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counter claim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17–56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).

Dimeo, the moving defendant, argues that the notice of apportionment fails to comply with § 52–102b and seeks to apportion liability based on the plaintiff's product liability claim.   Gym Doctor argues in response that the notice of apportionment is necessary to protect its right to apportionment, that the notice is the proper procedural vehicle to do so, that public policy favors its right to apportionment, and that the notice properly seeks to apportion liability based on negligence alleged against Dimeo in count nine.

“A motion to strike challenges the legal sufficiency of a pleading ․” (Emphasis added;  internal quotation marks omitted.)  Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2012).  “Other courts which have considered motions to strike which were not addressed to pleadings are in agreement that a motion to strike can only be filed to test pleadings.”   Patterson v. Mine Safety Appliances Co., Superior Court, judicial district of Hartford, Docket No. CV–04–4034666–S (May 7, 2008, Shapiro, J.) (45 Conn. L. Rptr. 462).   A motion to strike properly challenges only “the list of pleadings which are allowed under Practice Book § 10–6.”   PCUW, LLC v. Constanti, Superior Court, judicial district of New Britain, Docket No. CV–12–6014751–S (July 17, 2013, Swienton, J.).

Practice Book § 10–6 does not include a notice of apportionment as a pleading.⁴  A notice of apportionment, unlike an apportionment complaint, is not a complaint, a counterclaim, or a cross complaint, nor does it function as such.   Compare General Statutes § 52–102b(a) (an apportionment complaint requires service of a writ, summons, and a complaint on a person), § 52–102b(b) (an apportionment complaint is “equivalent in all respects to an original writ, summons and complaint”), with § 52–102b(c) (a notice of apportionment is only required to be filed with the court).   Accordingly, the motion to strike the notice of apportionment filed by Gym Doctor should be denied, as it is not addressed to a pleading.   See Patterson v. Mine Safety Appliances Co., supra, Superior Court, Docket No. CV–04–4034666–S (“The plaintiffs' motion to strike is not addressed to a pleading.   Accordingly, it is denied.”).

General Statutes § 52–572h provides for apportionment among defendants in a negligence action.   As of the date the notice was filed, all parties which Gym Doctor seeks apportionment against are defendants in the present case.   None of those parties have settled with or been released by the plaintiff.   Accordingly, the notice filed by Gym Doctor is not required by § 52–102b(c) or § 52–572h for apportionment to be applied.⁵  The notice filed by Gym Doctor further fails to satisfy the requirements of a notice of apportionment under § 52–102b(c) to identify “such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released.”   However, “[i]n the event of a withdrawal by plaintiff, the court may consider appropriate equitable reasons for allowing an apportionment complaint against him at that time, to determine whether the circumstances are similar to the exception found to the 120–day rule by the court in Pedro [v. Miller, 281 Conn. 112, 914 A.2d 524 (2007) ].”   Barabas v. Michaels, Superior Court, judicial district of New Haven, Docket No. CV–11–6017514–S (July 21, 2011, Zoarski, J.) (52 Conn. L. Rptr. 331).   The fact that Gym Doctor sought apportionment prior to the expiration of the 120–day limit may assist the court in finding an equitable reason to do so.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to strike the notice of apportionment.

BY THE COURT

V. ROCHE

FOOTNOTES

FN1. The additional codefendants, not involved in the present motion, are CB Seating, Inc., O & G Industries, Inc., Gared Holdings, LLC, and the city of Waterbury..  FN1. The additional codefendants, not involved in the present motion, are CB Seating, Inc., O & G Industries, Inc., Gared Holdings, LLC, and the city of Waterbury.

FN2. The complaint makes identical allegations against both Gym Doctor and Dimeo for selling and installing identical components of the structure in question..  FN2. The complaint makes identical allegations against both Gym Doctor and Dimeo for selling and installing identical components of the structure in question.

FN3. Several other parties have filed unrelated motions during the same time period, which are not relevant to the present motion and are therefore omitted from this memorandum for the purpose of clarity and brevity..  FN3. Several other parties have filed unrelated motions during the same time period, which are not relevant to the present motion and are therefore omitted from this memorandum for the purpose of clarity and brevity.

FN4. Practice Book § 10–6 states that “[t]he order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint.  (3) The defendant's request to revise the complaint.  (4) The defendant's motion to strike the complaint.  (5) The defendant's answer (including any special defenses) to the complaint.  (6) The plaintiff's request to revise the defendant's answer.  (7) The plaintiff's motion to strike the defendant's answer.  (8) The plaintiff's reply to any special defenses.”.  FN4. Practice Book § 10–6 states that “[t]he order of pleading shall be as follows:  (1) The plaintiff's complaint.  (2) The defendant's motion to dismiss the complaint.  (3) The defendant's request to revise the complaint.  (4) The defendant's motion to strike the complaint.  (5) The defendant's answer (including any special defenses) to the complaint.  (6) The plaintiff's request to revise the defendant's answer.  (7) The plaintiff's motion to strike the defendant's answer.  (8) The plaintiff's reply to any special defenses.”

FN5. Section 52–102b(c) states that “[n]o person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52–572h.   If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released.   Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages.   No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.”.  FN5. Section 52–102b(c) states that “[n]o person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52–572h.   If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released.   Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages.   No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.”

Roche, Vincent E., J.