Luis Cotto v. Joan B. Smith et al. (2014)

CONSOLIDATED MEMORANDUM OF DECISION RE MOTIONS TO STRIKE APPORTIONMENT COMPLAINT (Nos. 117 & 119)

The Consolidated Motions To Strike now before the Court raise a common issue on which Superior Court Judges are divided and no Appellate or Supreme Court precedent is directly controlling.   Suppose there is an automobile accident.   A passenger in Car 1 (the first-party plaintiff) sues the driver of Car 2 (the first-party defendant) for damages.   No other party is sued or served in the first-party action.   The first-party defendant subsequently claims that the accident was, in fact, caused by the negligent, but unidentified, driver of a third-party vehicle.   Because the driver of the third-party vehicle is unidentified, he or she cannot be served.   The vehicle occupied by the first-party plaintiff was, however, insured by an (identifiable) uninsured motorist carrier.   Pursuant to Conn. Gen.Stat. § 52–102b, may the liability of the alleged tortfeasor (the unidentified driver of the third-party vehicle) be apportioned to the uninsured motorist carrier for the first-party plaintiff's vehicle where neither the unidentified driver nor the apportionment defendant (the carrier) were served in the underlying action?   After a careful consideration of the issue, I agree with the majority of Superior Court Judges who have concluded that the answer to this question is No. See Kirchhoff v. Mesallum, 56 Conn. L. Rptr. 9 (2013) (Devine, J.), and authorities cited therein.

Although there is no controlling appellate authority on this issue, there is important Supreme Court guidance.   In Eskin v. Castiglia, 253 Conn. 516, 753 A.2d 927 (2000), the Court held that “an apportionment complaint may not be filed against an unidentified person.”  Id., at 519.   Subsequently, in Collins v. Colonial Penn Insurance Co., 257 Conn. 718, 778 A.2d 899 (2001), the Court held that, notwithstanding its holding in Eskin, when a first-party plaintiff actually sues and serves both an (identified) driver and her uninsured motorist carrier, damages may be apportioned between the identified driver and the carrier.   The Court explained 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.”   Id., at 743–44.  (Emphasis added.)   In an important footnote, Collins emphasized that, “Because Colonial Penn already was in the case as an original codefendant, the obstacle of § 52–102b is not present.”  Id., at 740, n.21.

Although the first-party defendant's equitable argument that it should not be responsible for more than its fair share of the damages is forceful, the “obstacle of § 52–102b” is insurmountable, at least at this level of the jurisprudential ladder.   If a further exception is to be made to the Eskin doctrine that “an apportionment complaint may not be filed against an unidentified person,” it must be made by the Supreme Court.

The Motions To Strike are granted.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.