Linda O'Connor v. Karen Garuti et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 112)

FACTS

On October 2, 2012, the plaintiff, Linda O'Connor, filed a complaint against the defendants, Karen Garuti and Richard Garuti, for negligence.   The complaint alleges the following facts.   On October 22, 2010,1 the plaintiff was traveling southbound on Route 9 in New Britain.   At the same time and place, Karen Garuti was also traveling southbound on Route 9 when she collided with the plaintiff's vehicle in an attempt to avoid debris on the road.   Karen Garuti operated a vehicle that was owned and maintained by Richard Garuti.   The plaintiff further alleges that the collision and her resulting injuries were caused by the carelessness and negligence of Karen Garuti.

Subsequently, on December 14, 2012, the defendants filed an apportionment complaint against the apportionment defendants, Carlos Sanchez and CWPM, LLC (CWPM).  The defendants allege that the plaintiff's injuries were caused in whole or in part by the apportionment defendants.   Specifically, the defendants allege that Sanchez, acting as CWPM's agent, failed to secure the load and prevent it from dropping on the highway.

On June 25, 2013, the plaintiff filed the operative complaint to bring a direct claim against the apportionment defendants.2  In the operative complaint, the plaintiff further alleges that the collision was caused by the carelessness and negligence of Sanchez, as an employee of CWPM, by failing to secure a load and operating his vehicle at a high rate of speed.   As a consequence, the vehicle operated by Sanchez dropped debris on the road, which caused Karen Garuti to swerve and collide with the plaintiff's vehicle.

On August 13, 2013, the apportionment defendants filed a motion to dismiss the plaintiff's operative complaint.   In response, the plaintiff filed an objection to the motion on December 6, 2013.   This matter was heard at short calendar on December 9, 2013.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–30.  “[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.”  (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).   “[O]nce the question of lack of jurisdiction of a court is raised ․ [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)  D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).  “Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”  (Internal quotation marks omitted.)   Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).

The apportionment defendants move to dismiss the plaintiff's operative complaint on the ground that the court lacks personal jurisdiction.   Specifically, the apportionment defendants argue that the plaintiff failed to file the complaint against them within sixty days, as required by General Statutes § 52–102b(d).  The plaintiff contends that the sixty-day period is not mandatory and equitable justification exists for filing the complaint beyond the sixty-day period.   More particularly, the plaintiff claims that she did not obtain the entire police report in her original request from the Connecticut state police and therefore was unaware that Carlos Sanchez and CWPM, LLC were involved in the accident.

Our Supreme Court has “conclude[d] that noncompliance with [General Statutes] § 52–102b implicates a court's personal jurisdiction ․” Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004).   In Lostritto, the court held that the 120–day time limitation required by § 52–102b(a) is mandatory, the trial court lacks the authority to extend the limitation period, and further noncompliance with § 52–102b implicates a court's personal jurisdiction.  Id., 14.   The court found that § 52–102b conferred rights that did not exist at common law, and, therefore, the statute's time limitations are substantive in nature, rather than procedural.  Id., 26.   In so finding, the court noted:  “[Section 52–102b delineates] proper timing and method of service of an apportionment complaint.   Although § 52–102b contains some procedural aspects, its substantive purpose and effect cannot be minimized.”  Id., 26.

Subsection (d) of § 52–102b provides:  “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.”   Although the specific analysis of Lostritto pertained to the 120–day time limit of § 52–102b(a) in which to serve an apportionment complaint, the court's analysis is equally applicable to the sixty-day time limit in which to assert a direct action under § 52–102b(d).  “Thus, failure to file a direct complaint against an apportionment defendant within the 60–day period of [§ ]52–102b(d) addresses the court's personal jurisdiction over the moving party.”  Dempsky v. Vision Express, Inc., Superior Court, judicial district of Bridgeport, Docket No. CV–12–6026686–S (March 21, 2013, Sommer, J.) [55 Conn. L. Rptr. 697].

“The majority of the courts that have confronted the issue have concluded that the 60–day requirement [of § 52–102b(d) ] is mandatory.”  (Internal quotation marks omitted.)  Id.;  see, e.g. Crandall v. Crandall, Superior Court, judicial district of New London, Docket No. CV–08–5006965–S (November 15, 2010, Martin, J.) (50 Conn. L. Rptr. 887, 889);  Kowalczyk v. Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV–04–4000806–S (September 11, 2006, Prescott, J.) (42 Conn. L. Rptr. 98, 100–01);  Schupp v. Golba, Superior Court, judicial district of New Haven, Docket No. CV–05–4005234–S (February 15, 2006, Robaina, J.);   Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. CV–01–0166813 (June 8, 2004, Matasavage, J.) (37 Conn. L. Rptr. 230, 231);  Perazelli v. Tilcon Connecticut, Inc., Superior Court, judicial district of Waterbury, Docket No. CV–99–0154903–S (November 6, 2000, Rogers, J.).  “To interpret the sixty-day time requirement of subsection (d) to be directory would be in direct contradiction of the purpose of § 52–102b.”  (Internal quotation marks omitted.)   Lopes v. Walgreen Eastern Co., Superior Court, judicial district of Waterbury, Docket No. CV–09–6004995–S (November 4, 2010, Zoarski, J.T.R.).

In the present case, it is undisputed that the plaintiff brought her operative complaint against the apportionment defendants outside of the sixty-day period, as provided by § 52–102b(d).  More particularly, the defendants filed the apportionment complaint against the apportionment defendants on December 14, 2012, with a return date of January 8, 2013.   The plaintiff, however, did not file her operative complaint against the apportionment defendants until June 25, 2013.   Therefore, the plaintiff's operative complaint was filed 168 days after the return date of the apportionment complaint, which is well outside of the sixty-day period allowed by § 52–102b(d).

It is acknowledged that in McAuliffe v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV–09–5029882–S (July 15, 2010, Wilson, J.) (50 Conn. L. Rptr. 292, 293), this court held “that § 52–102b(d) is an extension of the statute of limitations.   The function of § 52–102b(d) is thus not to establish a special period of limitations for a new statutory cause of action, which must be strictly enforced as a jurisdictional bar to untimely claims, but rather to extend by the limitations period for the assertion of a negligence claim against any person who becomes an apportionment defendant in [a] pending negligence action at or near the expiration of the general limitations period for bringing such claims.   By extending the limitations period for the assertion of a negligence claim against an apportionment defendant for sixty days after the return date on the apportionment complaint, § 52–102b(d) ensures that any plaintiff whose claim for damages is subject to reduction by a last-minute claim for apportionment does not lose the right to recover 100% of her proven damages from all persons, including the apportionment defendant, whom her jury finds to have proximately caused those damages by their negligence.”  (Internal quotation marks omitted.)

This court could locate only one decision where an apportionment defendant's objection to an amended complaint was sustained on the ground that it was filed outside of the sixty-day limit but within the statute of limitations.   See Ortiz v. Debbraccio, Superior Court, judicial district of New Haven, Docket No. CV–08–5019246–S (August 26, 2009, Lager, J.) (48 Conn. L. Rptr. 423, 425).   In Ortiz, the court strictly construed § 52–102b(d), holding that notwithstanding the fact that the action was brought within the statute of limitations, the 60–day limitation was mandatory.   The court explained that “[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended ․ It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions ․ there is a purpose behind every. clause ․ used in an act and ․ no part of a statute is superfluous ․ There is no rational reason for the clause ‘within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section’ other than to set forth a mandatory time limit for asserting a direct claim.

“In one sense, ․ § 52–102b(d) is directory.   In providing that ‘the plaintiff may, within sixty days of the return date of the apportionment complaint ․ assert [a direct] claim against the apportionment defendant,’ ․ it gives a plaintiff who initially chose not to directly sue the apportionment defendant discretion to decide whether to now bring such a claim.   However, the word ‘may’ does not affect the time limitation within which that choice must be made ․ If a plaintiff initially chose not to directly sue the party whom the defendant served with an apportionment complaint pursuant to ․ § 52–102b(a), the only mechanism by which a plaintiff can later bring a direct claim is under § 52–102b(d).”  (Citations omitted;  internal quotation marks omitted.)  Id., 424–25.

Notwithstanding the decision in Ortiz, this court noted in McAuliffe that all of the other decisions requiring a plaintiff to file an amended complaint within sixty days under § 52–102b(d) “involved a plaintiff who filed an amended complaint both outside of the sixty-day period of § 52–102b(d) and outside of the two-year statute of limitations of § 52–584.”  (Emphasis in original.)  McAuliffe v. Wallingford, supra, 50 Conn. L. Rptr. 293;  see Dempsky v. Vision Express, Inc., supra, Docket No. CV–12–6026686–S;  Kowalczyk v. New Milford Board of Education, supra, 42 Conn. L. Rptr. 99;  Schupp v. Golba, supra, Docket No. CV–05–4005234–S;  Demers v. Demers, supra, 37 Conn. L. Rptr. 231;  Perazelli v. Tilcon Connecticut, Inc., supra, Docket No. CV–99–0154903–S.   In situations where the statute of limitations has not expired, this court held that “[t]he sixty-day period [under § 52–102b(d) ] enable[s] the plaintiff to bring such a claim against an apportionment defendant even though the underlying statute of limitations may have expired, but not to preclude such claims when filed after the sixty-day period but prior to the expiration of the original statute of limitations ․ The purpose of the statute was to allow a plaintiff to plead after the statute of limitations expired if the plaintiff became aware of a previously unknown party who should be a defendant.   The applicable statute was meant to expand the statute of limitations if necessary.   There never was and is not an interest to shorten the statute of limitations.”  (Emphasis in original;  internal quotation marks omitted.)  McAuliffe v. Wallingford, supra, 293–94;  see also Strother v. Mall, Inc., Superior Court, judicial district of New London, Docket No. CV–12–6012030–S (October 3, 2013, Cole–Chu, J.) [57 Conn. L. Rptr. 24] (expressing skepticism that a statute of limitation would be shortened by § 52–102b(d));  Butlein v. 1220 WR Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV–00–03763535–S, (May 30, 2001, Skolnick, J.) (plaintiff's direct cause of action against apportionment defendant was timely as it was filed within the time period in § 52–584);  Boland v. Frye, Superior Court, judicial district of New Britain, Docket No. CV–97–0483093–S, (October 15, 1998, Leheny, J.) (“legislature provides the plaintiff with this small window of opportunity in which to file claims against the apportionment defendant because the plaintiff must be afforded an opportunity to protect herself and her interests”).

Unlike the facts in McAuliffe or Ortiz, in the present case, the plaintiff's operative complaint is filed outside of both the sixty-day period allowed by § 52–102b(d) and the two-year statute of limitations allowed for a negligence claim.3  More particularly, the accident occurred on October 22, 2010, while the operative complaint was filed on June 25, 2013.   Thus, the plaintiff's operative complaint was untimely filed because it was more than two years after the date of the accident.   Moreover, as previously discussed, the plaintiff's operative complaint was also untimely under § 52–102b(d) because it was filed more than sixty days after the return date of the apportionment complaint.

Nevertheless, the plaintiff argues that even if the court finds that the sixty-day period in § 52–102b(d) is mandatory, the limitation should be excused for equitable reasons.   The plaintiff cites Angelone v. Connecticut Oil Services, LLC, Superior Court, judicial district of Waterbury, Docket No. CV–06–5002890–S (October 22, 2007, Roche, J.) (44 Conn. L. Rptr. 415), in support of her contention that the sixty-day requirement is not mandatory when equitable considerations are present.   In Angelone, the plaintiff filed an amended complaint against an apportionment defendant pursuant to General Statutes §§ 52–102a(c) and 52–102b(d).  Id., 416.   The apportionment defendant requested the plaintiff to amend her complaint on the grounds that the plaintiff's claim was barred by the statute of limitations and outside of the sixty-day limitation allowed by § 52–102b(d).  Id. Citing Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007), the plaintiff argued that equitable considerations may extend the time limitations of § 52–102b(d).  Although the court agreed with the plaintiff's assertion that Pedro permits extension of the time limitations of § 52–102b(d), citing Pedro, it noted that, “Pedro involved a situation wherein the basis of the defendant's claim against the apportionment defendant did not arise until the plaintiff amended her complaint, more than sixteen months after her original complaint ․ Thus, it was impossible for the defendants to serve the apportionment claim upon [the apportionment defendant] within the 120 day limit established by § 52–102b(a).   Such circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute.”  (Citations omitted;  internal quotation marks omitted.).  Angelone v. Connecticut Oil Services, LLC, supra, 44 Conn. L. Rptr. 417.   The court noted that the plaintiff “ha[d] averred no such circumstances or equitable factors for consideration by the court other than that she will now be unable to collect apportionment from the [apportionment defendant].   To apply the holding in Pedro to the present situation would render the time limitation in § 52–102b(d) utterly superfluous.”  Id. The court therefore concluded that while compelling equitable reasons may excuse compliance with the sixty-day limit set forth in the statute, no equitable factors were present in the plaintiff's case to excuse compliance with the statute.”  Id., 417.   Specifically, the court was unpersuaded by the plaintiff's argument that equity required the court to excuse the sixty-day limit because the plaintiff would otherwise be unable to apportion damages.  Id.

In the present case, the plaintiff claims that equitable reasons exist for the court to excuse compliance with § 52–102b(d).  Specifically, the plaintiff argues that she did not obtain the entire police report in her original request from the Connecticut state police and therefore she was not aware of Sanchez and CWPM, LLC's involvement in the accident.   As previously discussed, the court has made limited exceptions for equitable reasons in situations where the parties could not possibly have acted within the time frame set forth by the statute.   See, e.g. Pedro v. Miller, 281 Conn. 112, 118–19, 914 A.2d 524 (2007) (“legal basis for apportioning liability arose only after the 120 day limit already had expired constitutes an equitable reason justifying excusal from compliance with the limit”).   Here, however, the plaintiff had over two years to obtain the full police report after the accident.   The plaintiff fails to explain why she did not request a police report sooner after the accident, and there is also no explanation why the plaintiff did not realize the police report was incomplete after they initially received it in November 2012.   In fact, the police report that the plaintiff submits along with her memorandum in opposition, which consists of the first two pages, which the plaintiff claims she had, clearly describes the accident involving three vehicles and that the debris from the third vehicle caused the defendant's vehicle to strike the plaintiff's vehicle.   Pl.'s Ex. 1. Thus, the plaintiff knew that there was another party involved in this accident and could have requested the complete police report before the defendants even filed the apportionment complaint.

Accordingly, the plaintiff may not bring a direct claim against the apportionment defendants because (1) the operative complaint was filed beyond the sixty-day period allowed by § 52–102b(d), (2) no equitable justification exists for excusing compliance with the statute, and (3) the operative complaint was filed beyond the two-year statute of limitations set forth in General Statutes § 52–584.

CONCLUSION

For the foregoing reasons, because the court lacks personal jurisdiction, the apportionment defendants' motion to dismiss is granted.

Wilson, J.

 1The plaintiff's complaint alleges that the accident occurred on October 22, 2012, i.e., 20 days after the complaint was filed.   This allegation is clearly erroneous.   In fact, a police report appended to the plaintiff's own objection to the apportionment defendants' motion to dismiss indicates that the accident actually occurred on October 22, 2010.   Accordingly, for the purposes of this motion, the court assumes that the date of the accident was October 22, 2010.

 2The plaintiff titled this complaint as a “cross complaint.”   A cross complaint, however, is filed by a defendant against a third-party defendant.   See Practice Book § 10–11(a).   In the present case, the plaintiff apparently intended to file an amended complaint rather than a cross complaint.   The complaint, however, is technically not an amended complaint because it does not include any claims against the original defendants.   Thus, for the purposes of this memorandum, the court will refer to the June 25, 2013 complaint, asserting claims against the apportionment defendants, as the operative complaint.

 3Specifically, General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․” ¹

FOOTNOTES

FN1. It is acknowledged that in Angelone v. Connecticut Oil Services, LLC, supra, 417, the court stated that § 52–102b(d) is not the only mechanism for a plaintiff to assert claims against a party not named in the original complaint.   In that case, the plaintiff had also set forth § 52–102a(c) as an additional basis for her claim against the apportionment defendant.  Id. Section 52–102a(c) provides in relevant part:  “The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint ․” Thus, based on the provisions of § 52–102a(c), the court overruled the apportionment defendant's request to revise the amended complaint because the plaintiff had asserted a claim against the apportionment defendant within twenty days of its appearance.  Angelone v. Connecticut Oil Services, LLC, supra, 418.Unlike the plaintiff in Angelone, the plaintiff in the present case did not file the operative complaint pursuant to § 52–102a(c).  In fact, the plaintiff's own memorandum in opposition to the motion to dismiss cites § 52–102b(d) as the only applicable statute on which she relies to establish her claim against Sanchez and CWPM, LLC..  FN1. It is acknowledged that in Angelone v. Connecticut Oil Services, LLC, supra, 417, the court stated that § 52–102b(d) is not the only mechanism for a plaintiff to assert claims against a party not named in the original complaint.   In that case, the plaintiff had also set forth § 52–102a(c) as an additional basis for her claim against the apportionment defendant.  Id. Section 52–102a(c) provides in relevant part:  “The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint ․” Thus, based on the provisions of § 52–102a(c), the court overruled the apportionment defendant's request to revise the amended complaint because the plaintiff had asserted a claim against the apportionment defendant within twenty days of its appearance.  Angelone v. Connecticut Oil Services, LLC, supra, 418.Unlike the plaintiff in Angelone, the plaintiff in the present case did not file the operative complaint pursuant to § 52–102a(c).  In fact, the plaintiff's own memorandum in opposition to the motion to dismiss cites § 52–102b(d) as the only applicable statute on which she relies to establish her claim against Sanchez and CWPM, LLC.

Wilson, Robin L., J.