Keith Harris v. David Boido et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 136 AND OBJECTION NO. 138

I

Procedural History

The apportionment defendant, USAA, moves to strike the entire apportionment complaint filed by the apportionment plaintiff, David Boido, on the ground that the complaint is legally insufficient inasmuch as the plaintiff in the underlying complaint has not named his underinsured motorist carrier as a defendant.   In addition, the apportionment defendant argues that the apportionment plaintiff lacks standing to bring this action because General Statutes § 52–102b ¹ applies to negligence actions, while the present apportionment claim is grounded in contract inasmuch as the apportionment plaintiff seeks to recover uninsured motorist benefits.   Finally, the apportionment defendant argues that General Statutes §§ 52–572h ² and 52–102b apply only to parties whose negligence contributed to an injury.   The court heard argument on the motion to strike and the objection on November 18, 2013.

II

Discussion

There is no appellate authority on whether the liability of a tortfeasor may be apportioned to the uninsured motorist carrier in actions where the apportionment defendant was not served in the underlying action.   The apportionment plaintiff correctly argues that there is a split of authority in the Superior Court in regard to this issue, stemming from the holding in Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001).   In Collins, the plaintiff had suffered injuries from a three-car chain reaction collision.   An unidentified driver had allegedly hit the defendant's vehicle, which in turn caused the defendant's vehicle to strike the plaintiff's vehicle.   The plaintiff brought suit not only against the owner and the driver of the vehicle that struck her, but also against her own uninsured motorist carrier, alleging negligence on the part of both the defendant and the unidentified driver.  Id., 721.

The issue in Collins was whether the trial court erred when it failed to provide instructions to the jury on apportionment after the uninsured motorist carrier settled with the plaintiff and the plaintiff withdrew her claim against it.   The Supreme Court concluded that “the provisions set forth in [General Statutes] § 52–572h establishes two classes of persons whose negligence must be considered by the trier of fact:  (1) the parties to the action;  and (2) settled or released persons, as the term is defined in subsection (n).”  (Emphasis added.)  Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 731.  “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 added.)  Id., 743–44.

In addition, “Collins explained that although traditionally an action against an uninsured motorist carrier sounds in contract rather than negligence, in certain contexts, because of the ‘hybrid’ nature of uninsured motorist coverage, the uninsured carrier operates in part as a ‘surrogate’ for the financially irresponsible tortfeasor.”  (Internal quotation marks omitted.)   Santana v. Tom, Superior Court, judicial district of New Haven, Docket No. CV–07–5002545–S (November 17, 2008, Rubinow, J.) (46 Conn. L. Rptr. 665, 667 (discussing Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 732–34).  “[T]he uninsured motorist carrier acted, in part, as a surrogate for the third party tortfeasor as well as a party against whom the plaintiff maintained a first party contract claim ․ Colonial Penn was not only a named, identifiable party in the original complaint, but its function in this case was to litigate the blameworthiness of the unidentified hit-and-run driver.   That is, its liability in the uninsured motorist contract was predicated on the negligence of the phantom driver ․ The plaintiff in her complaint, linked the cause of her damages not only to the negligence of the defendant, but also to the negligence of the unidentified driver when it named Colonial Penn as a defendant ․ It is clear that, not only was the cause of action against Colonial Penn based on the negligence of the unidentified driver, but that the plaintiff affirmatively alleged that the unidentified driver and the defendant caused her injuries.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id. “We note that an injured plaintiff may recover money from an uninsured motorist carrier who serves as a surrogate for the unidentified person ․” Collins v. Colonial Penn Ins. Co., supra, 257 Conn 739–40, n.21.

“[A] defendant cannot bring an apportionment complaint against an uninsured motorist carrier when neither the carrier nor an unidentified driver has been named as a defendant in the underlying complaint in such a case, where the plaintiff has not identified negligent conduct for which the uninsured motorist carrier may be contractually liable, § 52–572h(o) functions to preclude apportionment of liability on any basis other than negligence.   Without the surrogacy hook, the defendants' apportionment claim loses its tortious element and ‘hybrid’ nature, thus rendering it inappropriate for apportionment.”   Santana v. Tom, supra, 46 Conn. L. Rptr. 668–69.

In the present case, the apportionment plaintiff cites to the minority of cases that have denied motions to strike under similar circumstances.   See, e g., Luciani v. Berlingo, Superior Court, judicial district of New Haven, Docket No. CV 08–6001879–S (May 19, 2008, Licari, J.) (45 Conn. L. Rptr. 581);  Shaffer v. Mindell, Superior Court, judicial district of Hartford, Docket No CV 12–6028709–S (November 7, 2012, Scholl, J.) [54 Conn. L. Rptr. 908].   In Luciani, the court found “no requirement in Collins that such carrier be an original defendant.”  Luciani v. Berlingo, supra, 45 Conn. L. Rptr. 581.   “Nevertheless, the majority of cases have granted a motion to strike where a defendant in a motor vehicle collision seeks apportionment from the plaintiff's uninsured motorist carrier for an unidentified driver's negligence, when the plaintiff has not sued the insurer or the unidentified driver.”   Kirchhoff v. Mesallum, Superior Court, judicial district of New London, Docket No. CV–12–6014192–S (April 19, 2013, Devine, J.) [56 Conn. L. Rptr. 9];  see also 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), Santos v. Jinete, Superior Court, judicial district of Stamford, Docket No CV–10–6007151–S (May 18, 2011, Jennings, J.T.R.) (52 Conn. L. Rptr. 11), 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);  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);  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).

Here, the underlying plaintiff alleges in the seventh count that the vehicle owned by a defendant, Robert P. Boido, was driven by an unknown party.   The underlying plaintiff, however, has not named nor joined the apportionment defendant as a party to the underlying action.   Without naming or joining the apportionment defendant to the underlying action, the apportionment defendant cannot stand in the shoes of the unknown driver and act as a surrogate for said driver in litigating the unknown driver's portion of liability in the underlying action.   Because the apportionment defendant cannot act as a surrogate for the unknown driver, no negligence on the part of the apportionment defendant can be determined in the underlying complaint, rendering the apportionment complaint to be grounded solely in contract, in violation of § 52–572h(o).   For the foregoing reasons, this court follows the majority opinion and holds that an apportionment plaintiff may not seek apportionment against an uninsured motorist carrier unless the uninsured motor carrier is a defendant to the underlying complaint.   Accordingly, the court grants the apportionment defendant's motion to strike the apportionment complaint.

III

Conclusion

For the reasons stated the motion to strike is granted.

SO ORDERED

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. General Statutes § 52–102b provides:  “(a) A defendant in any civil action to which section 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.   Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.   The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint.   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.(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed.   The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party.   If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.(c) No 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.(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.(f) 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.(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52–572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section.   Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52–572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”.  FN1. General Statutes § 52–102b provides:  “(a) A defendant in any civil action to which section 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.   Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.   The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint.   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.(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed.   The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party.   If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.(c) No 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.(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.(f) 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.(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52–572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section.   Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52–572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.”

FN2. General Statutes § 52–572h(o) provides in relevant part:  “Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52–555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52–556.”.  FN2. General Statutes § 52–572h(o) provides in relevant part:  “Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52–555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52–556.”

Wiese, Peter E., J.