Tracy Thomasi et al. v. Ryan Smith et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO IMPLEAD (# 123), OBJECTION TO MOTION (# 124)

FACTS

The plaintiffs, Tracy Thomasi and Edward Thomasi, Sr. commenced this action against the defendants, Ryan Smith ¹ and Hy's Livery service by writ, summons and complaint on or about April 12, 2013.   The complaint was returned to court on April 25, 2013.   The complaint is an eight-count complaint and alleges the following.   On or about June 3, 2011, the plaintiffs were passengers of a 2004 Lincoln Limousine operated by the defendant, Ryan Smith who was traveling southbound on Interstate 95, near exit 39A, in Milford, Connecticut.   The defendant failed to stop for traffic and drove directly into the rear of another vehicle which was being operated by Carolyn Pender.   The vehicle operated by the defendant, Ryan Smith was owned by the defendant, Hy's Livery Service, Inc. and the defendant, Ryan Smith operated said vehicle with the authorization of and/or as the agent of the defendant, Hy's Livery Service, Inc., pursuant to Connecticut General Statutes §§ 52–182 and 52–183.   Count one of the complaint sounds in negligence as to plaintiff, Tracy Thomasi against defendant, Ryan Smith;  count two sounds in statutory recklessness pursuant to § 14–295 as to plaintiff, Tracy Thomasi against defendant, Ryan Smith;  count three sounds in common law recklessness as to plaintiff, Tracy Thomasi against defendant, Ryan Smith;  count four is vicarious liability pursuant to §§ 52–182 and 52–183 as to plaintiff, Tracy Thomasi against defendant, Hy's Livery Service, Inc.;   count five sounds in negligence as to plaintiff, Edward Thomasi, Sr. as to defendant, Ryan Smith;  count six sounds in statutory recklessness as to plaintiff, Edward Thomasi, Sr. against defendant, Ryan Smith;  count seven sounds in common law recklessness as to plaintiff, Edward Thomasi, Sr. against Ryan Smith;  and count eight is against defendant, Hy's Livery Service, Inc. as to plaintiff, Edward Thomasi, Sr. and is based on vicarious liability pursuant to §§ 52–182 and 52–183.   Both plaintiff's claim they sustained injuries as a result of the negligence and recklessness of the defendants.

The defendants, Ryan Smith and Hy's Livery Service, Inc. filed a motion to implead requesting permission from the court to serve a third-party complaint on Carolyn Pender who is not a party to this action but who the defendants claim “is or may be liable for all or part of the plaintiff's claims as a result of her own negligence.”   The defendants state that they are bringing this motion pursuant to Practice Book § 10–11 and Connecticut General Statutes § 52–102a.

The plaintiffs' object to the motion to implead on grounds that the defendants' motion is untimely and barred by Connecticut General Statutes § 52–102b.   The plaintiff's claim that the defendants' motion to implead is governed by § 52–102b not § 52–102a because the language used by the defendants' in their motion states that the motion is being filed because the other driver “is or may be liable for all or part of the plaintiffs' claims as a result of her own negligence.”   The plaintiffs argue that although the defendants cite to § 52–102a as the authority by which they seek to implead Carolyn Pender, they consistently use language that is indicative of an intent to use § 52–102b.  Section 52–102b governs complaints where a defendant seeks to apportion liability for a plaintiff's damages.   Thus, the apportionment defendant would be liable to the plaintiff for a proportionate share of the plaintiff's damages.  Section 52–102a, by contrast, governs a third-party complaint where a nonparty may be liable to the defendant for all or part of the plaintiff's claim against him.   The matter was scheduled as take papers on the court's January 6, 2013 nonarguable docket.

DISCUSSION

The court must determine whether Carolyn Pender is an apportionment defendant or a third-party defendant in this action.   In order to make this determination, it is necessary to understand the distinction between a third-party complaint and an apportionment complaint.   Third-party complaints are governed by § 52–102a, which provides in subsection (a):  “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.”   In contrast, apportionment complaints are governed by § 52–102b.   Section 52–102b (a) provides:  “A defendant in any civil action to which [General Statutes § ] 52–572h applies 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 ․ The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under Section 52–572h.”

As previously noted, the plaintiffs argue that the language utilized by the defendants in their motion to implead is indicative of their intent to add Carolyn Pender as an apportionment defendant in this matter.   In support of their position, the plaintiff cites Dizeno v. Daniels, Superior Court, judicial district of Fairfield, Docket No. CV 04 0409196 (December 1, 2004, Skolnick, J.).   In that case, the court, Skolnick, J., noted that “[t]he noticeable difference between §§ 52–102a and 52–102b is that § 52–102a impleads a non-party because of liability to the defendant, while § 52–102b impleads a non-party because of liability for a share of the plaintiff's damages.”  Id.

In the present case, the defendants, Ryan (Raymond) Smith's and Hy's Livery Service, Inc.'s motion for permission to implead opens with the following language:  “Defendants, Raymond Smith and Hy's Livery Service, Inc. by and through counsel and pursuant to Practice Book § 10–11, and Connecticut General Statutes § 52–102a, hereby move the Court for permission, as defendants/third-party plaintiffs, to serve the attached Complaint on Carolyn Pender, who is not a party to this action but who is or may be liable for all or part of the plaintiffs' claims as a result of her own negligence.”   The first count of the defendants third party complaint, titled “Proposed Third Party Complaint,” is labeled (“Indemnification by way of negligence”) and is directed at Carolyn Pender and alleges that she was negligent in a number of ways, and, more importantly alleges in paragraph 9 that “[i]f and to the extent that the third-party plaintiffs are to be held responsible, which they expressly deny, then any such negligence on the part of the third party plaintiffs was passive and that of third-party defendant Carolyn Pender was the direct, immediate and proximate cause of the plaintiffs' injuries.”   Notably, paragraph 12 of the first count alleges that “[a]s a result of the negligence and carelessness of Carolyn Pender, her agents, servants and/or employees, third-party defendant Carolyn Pender may be liable to the third party plaintiffs for any judgment which may be obtained against the third party plaintiffs by the plaintiffs.”

As noted by the trial court in Gwozdz v. BCG Development, LLC, Superior Court, judicial district of New London at New London, Docket No. CV 085006994 (November 19, 2010, Cosgrove, J.) [50 Conn. L. Rptr. 835], “[w]hile the motion to implead may be unclear as to whether the subcontractors are third-party or apportionment defendants, the language of the third-party complaint is explicit.   BCG and Gebo claim that Quality is liable to them to the extent that the plaintiff is entitled to recover against BCG and Gebo. Thus, BCG and Gebo's allegations are governed by § 52–102a and Quality is a third-party defendant pursuant to that section.”

Similarly, in the present case, while the defendants' motion to implead may be unclear as to whether Carolyn Pender is a third party or apportionment defendant, the language in paragraphs 9 and 12 of the third-party complaint is explicit.   The defendants Ryan Smith and Hy's Livery Service, Inc. claim that the third-party defendant, Carolyn Pender's negligence was the primary, direct and immediate cause of the plaintiff's damages and the third-party defendant, Carolyn Pender is liable to them to the extent that the plaintiff is entitled to recover against the third-party plaintiffs.   Therefore, the action is properly governed by § 52–102a as a third-party complaint.  Section 52–102a further provides in relevant part that “[t]he motion [to implead] may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.”   This case has not yet been scheduled for trial, therefore the trial will not be unduly delayed, and there is no evidence that the granting of the motion will work an injustice on the plaintiffs or the third party defendant.   The defendants' motion to implead Carolyn Pender as a third-party defendant is therefore granted.

CONCLUSION

For the foregoing reasons, the defendants' motion to implead is GRANTED.   The plaintiffs' objection to the motion is OVERRULED.   The clerk is hereby ordered to set the date of service and return date.

Wilson, J.

FOOTNOTES

FN1. In the caption of the complaint and throughout the complaint, the defendant, Ryan Smith is referred to as “Raymond Smith.”   The summons refers to the defendant as “Ryan Smith.”   The court file refers to the defendant as “Ryan Smith.”   The court will refer to the defendants Ryan Smith and Hy's Livery Service, Inc. collectively as the defendants, and when necessary, to the defendant, Raymond Smith as “Ryan Smith.”.  FN1. In the caption of the complaint and throughout the complaint, the defendant, Ryan Smith is referred to as “Raymond Smith.”   The summons refers to the defendant as “Ryan Smith.”   The court file refers to the defendant as “Ryan Smith.”   The court will refer to the defendants Ryan Smith and Hy's Livery Service, Inc. collectively as the defendants, and when necessary, to the defendant, Raymond Smith as “Ryan Smith.”

Wilson, Robin L., J.