Opinion
No. CV 00-0596284
May 7, 2001
MEMORANDUM OF DECISION
The plaintiff Raymond Bahre moves to strike the defendant's apportionment complaint on the grounds that the apportionment complaint is not in compliance with state statutes, cannot be filed with an answer and special defense and is untimely.
The present action arose following an accident involving a motor vehicle driven by the defendant, Chester Piotrowicz, which allegedly caused injuries to the plaintiffs, Raymond Bahre and Bryan Bahre. The plaintiffs allege the following facts. At approximately 10:30 P.M. on June 2, 1998, the defendant was seated in the driver's seat of his parked motor vehicle in a private driveway on Loomis Street in Granby, Connecticut. Raymond Bahre was standing between the open driver's side door and the defendant's vehicle and was engaged in conversation with the defendant. Bryan Bahre was standing in the immediate vicinity of the motor vehicle. Without warning, the defendant began to drive his vehicle in reverse, dragging Raymond Bahre along the ground from the driver's door for approximately 300 feet. The defendant's vehicle then spun out, striking Bryan Bahre and two stone walls. The defendant then proceeded north on Loomis Street without stopping. Both plaintiffs allege that the actions of the defendant constitute negligence (counts one and three), recklessness (counts two and four) and battery (counts five and six).
On February 20, 2001, the defendant filed an answer, special defense and an apportionment complaint. As special defenses, the defendant alleges that the injuries to Raymond Bahre were caused by his own intentional, reckless or negligent assault on the defendant and that the injuries to Bryan Bahre were caused by his own negligence in placing himself in a position of danger. In his apportionment complaint against Raymond Bahre, alleged to be brought pursuant to General Statutes § 52-572h(b), the defendant alleges that any potential injuries suffered by Bryan Bahre are due to the negligence of Raymond Bahre in that he negligently grabbed and turned the steering wheel of the defendant's vehicle. On March 12, 2001, the plaintiffs filed a reply to the special defenses. In addition, Raymond Bahre filed a motion to strike the defendant's apportionment complaint. On March 26, 2001, the defendant filed a reply to Raymond Bahre's motion to strike.
Although the defendant labels his request for apportionment an apportionment complaint, technically it is really a counterclaim for apportionment. A counterclaim is "a cause of action existing in favor of a defendant against a plaintiff which a defendant pleads to diminish, defeat or otherwise affect a plaintiff's claim and also allows a recovery by the defendant." (Internal quotation marks omitted.) Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985). The label affixed to a pleading is not controlling; id., 340; and, in this case, whether it is properly labeled a complaint or a counterclaim, such is not material to the court's ultimate decision on the present motion to strike.
General Statutes § 52-572h (b) provides: "In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.)Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. . . . It is fundamental that in determining the sufficiency of a complaint challenged by a [plaintiffs] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
Raymond Bahre moves to strike the defendant's apportionment complaint, arguing that pursuant to General Statutes § 52-102b, the defendant's apportionment complaint must be stricken because an apportionment complaint cannot be filed against someone who is already a party to the action, cannot be filed with an answer and special defense, and cannot be filed outside of the 120-day period following the return date of the plaintiff's original complaint. The defendant concedes that he has not complied with § 52-102b because that statute applies to apportionment complaints against third persons who are not yet parties to the action. Instead, the defendant argues, that his right to apportionment arises under § 52-572h.
General Statutes § 52-102b provides in relevant part: "(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.
* * * "(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."
Through his apportionment complaint, the defendant seeks to assure that Raymond Bahre will be held responsible for a share of Bryan Bahre's damages, which the defendant contends Raymond Bahre caused through his negligence in grabbing the steering wheel. In essence, the defendant seeks to shift his potential liability for any damages suffered by Bryan Bahre to the other plaintiff, Raymond Bahre, by using an apportionment complaint.
Section 52-102b sets forth the requirements for bringing a new party into a case for apportionment of liability. Eskin v. Castiglia, 253 Conn. 516, 523-24, 753 A.2d 927 (2000). "General Statutes [§] 52-102b expressly provides that an apportionment suit is not available against an individual who is a `party' to the action." Delaney v. Keemon, Superior Court, judicial district of New London at Norwich, Docket No. 116136 (April 30, 1999, Mihalakos, J.) ( 24 Conn.L.Rptr. 426, 427); see also Apicelli v. Indian Nations, Superior Court, judicial district of New London at Norwich, Docket No. 119305 (December 11, 2000, Martin, J.); Gerarde v. Anastasiou, Superior Court, judicial district of New London at New London, Docket No. 546471 (June 30, 1999, Milhalakos, J.) ( 24 Conn.L.Rptr. 692, 693). Pursuant to the holding in Delaney v. Keemon, supra, 24 Conn.L.Rptr. 427, and the line of cases following it, § 52-102b applies only to nonparties and, therefore, does not apply to the facts of this case because Raymond Bahre is already a plaintiff in the case. ". . . an apportionment complaint served upon a person already a party to an action should be stricken"; Morrill v. Rutledge, Superior Court, judicial district of New Haven at New Haven, Docket No. 423871 (July 19, 2000, Alander, J.) (27 Conn. Law. Rptr. 576, 577). Accordingly the complaint against Raymond Bahre is stricken.
The court declines to follow the minority view of Judge Levin inTorres v. Begic, Superior Court, judicial district of New Haven at New Haven, Docket No. 423742 (June 14, 2000, Levin, J.) ( 27 Conn.L.Rptr. 403, 406).
Because § 52-102b does not apply to the facts of this case, the court need not decide whether the apportionment complaint was filed outside of the 120-day period following the return date and/or was filed improperly with an answer and special defense.
The defendant is not without remedy. The defendant may obtain the result that he seeks, that is, that the trier of fact consider and determine whether Raymond Bahre acted negligently in grabbing the defendant's steering wheel and thereby caused the damages suffered by Bryan Bahre, by pleading the special defense of comparative negligence or through a request for submission of the issue of apportionment to the jury pursuant to General Statutes § 52-572h(c), (e) and (f). Gerarde v. Anastasiou, supra, 24 Conn.L.Rptr. 693; Delaney v. Keemon, supra, 24 Conn.L.Rptr. 427; Algea v. Barnett, Superior Court, judicial district of Bridgeport, Docket No. 334396 (July 17, 1997, Skolnick, J.) (20 Conn.L.Rtpr. 100, 101).
General Statutes § 52-572h (c) provides: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
General Statutes § 52-572h(e) provides: "(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party."
General Statutes § 52-572h(f) provides: "The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant."
For the foregoing reasons, Raymond Bahre's motion to strike the defendant's apportionment complaint is granted.
Mary R. Hennessey, J.