Opinion
No. CV 02-0819257
October 15, 2003
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE
Before this court is the plaintiff's motion to strike subsections three and four of the first and second special defenses and the fourth special defense in its entirety. For the reasons set forth herein, the court grants the motion as to subsection three of the first and second special defenses and denies the motion as to subsection four of the first and second special defenses and the fourth special defense.
I
On September 3, 2002, the plaintiff, Richard Bonelli, filed a one-count complaint against the defendants, Jerome Giguere and Lariviere Fils de Beauce, Inc. (Lariviere). This action arises from a motor vehicle accident that occurred on December 12, 2001 on Interstate 84 near exit 39 in Farmington, Connecticut. The complaint alleges that while the plaintiff was lawfully operating a vehicle in an eastbound lane on Interstate 84, Giguere, who was driving a tractor-trailer owned by Lariviere, negligently caused a collision between the two vehicles that severely injured the plaintiff. On April 23, 2003, the plaintiff amended his complaint to include one count against Yana Preiss, the owner of the vehicle the plaintiff was driving when the accident occurred. On April 28, 2003, Giguere and Lariviere filed an amended apportionment complaint against Preiss.
Giguere and Lariviere filed their answer, special defenses and cross claim on June 10, 2003. The first special defense alleges that the accident was caused by the negligence of the plaintiff, rather than by that of the Giguere and Lariviere. The second special defense alleges that the plaintiff was contributorily or comparatively negligent. Subsection three of the first and second special defenses alleges that the plaintiff was negligent in that "he operated his vehicle without a valid motor vehicle operator's license in violation of Conn. Gen. Stat. § 14-36 . . ." Subsection four of the first and second special defenses alleges that the plaintiff was negligent in that "he failed to use or to properly use seat belts or restraining devices pursuant to Conn. Gen. Stat § 14-100 and/or New York Vehicle and Traffic Law § 1229-c, when by exercising reasonable care he could and should have done so . . ." The fourth special defense alleges that "If any injuries and/or damages were sustained by the plaintiff at the time and place and in the manner alleged in the complaint, said injuries and damages are attributable, in whole or in part, to the culpable conduct of persons and/or entities other than defendants."
On June 12, 2003, the plaintiff filed an amended motion to strike paragraphs three and four of the first and second special defenses and the fourth special defense in its entirety on the grounds that (1) New York law cannot be alleged as a special defense; (2) § 14-36 is inapplicable to civil actions; and (3) apportionment of damages to nonparties is prohibited by General Statutes § 52-572h. As required by Practice Book § 10-42, the motion was accompanied by a supporting memorandum of law. Giguere and Lariviere also filed a timely memorandum in opposition to the motion to strike.
II
"A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (19780; see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "[A] single paragraph of a pleading is subject to a motion to strike . . . when it attempts to set forth all of the essential allegations of a cause of action or defense." (Internal quotation marks omitted.) Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.T.R.) ( 31 Conn. L. Rptr. 380). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
A
The plaintiff moves to strike subsection four of the first and second special defenses on the ground that New York law is inapplicable here because Connecticut has the most significant relationship to this action. Subsection four of the first and second special defenses alleges the plaintiff "failed to use or to properly use seat belts or restraining devices pursuant to Conn. Gen. Stat. § 14-100 and/or New York Vehicle and Traffic Law § 1229-c, when by exercising reasonable care he could and should have done so . . ."
"Connecticut law and New York law differ with respect to whether a plaintiff's failure to wear a safety belt, as required by statute, may be used to mitigate damages. The Connecticut safety belt statute, enacted in 1985, provides that `[f]ailure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in [any] civil action.' General Statutes § 14-100a(c)(3). The legislative history of that statute indicates that certain representatives favored allowing a mitigation of damages for failure to wear a seat belt, but did not prevail. Although the issue of mitigating damages has not been directly addressed by our [a]ppellate [c]ourts, the Superior Court appears to have held consistently that § 14-100a(c)(4) bars evidence of the failure to wear a seat belt for the purpose of proving contributory negligence or the failure to mitigate damages . . . By making evidence of the failure to wear a safety belt inadmissible, the legislature endorsed a policy that, despite the duty to wear a safety belt, a driver or passenger who was injured (while not wearing a safety belt) through the negligence of another should not have his or her recovery reduced . . ."
"By contrast, New York Vehicle Traffic Law § 1229-c(8) provides that failure to wear a seat belt is not admissible as evidence in a civil case with regard to liability, but it may be introduced into evidence in mitigation of damages if the defendant has pleaded such noncompliance as an affirmative defense . . . The New York statute was enacted in 1985 in response to Federal Motor Vehicle Safety Standard No. 208 ( 49 C.F.R. § 571.208), which was promulgated by the National Highway Traffic Safety Administration . . . In order for a state statute to comply with the federal standard, § 4.1.5.2(a)(2) of that standard requires that such statute must contain, inter alia, a provision specifying that a violation of the seat belt usage requirement may be used to mitigate damages . . . Although § 1229-c(8) evinces a legislative judgment that the failure to use a seat belt should have no bearing on the liability aspect of a civil action, it need not be construed to constitute a legislative intention to abrogate the comparative fault approach in all respects as regards the seat belt defense . . . The failure of an occupant to wear a seat belt while riding in an automobile is indeed culpable conduct and can often be culpable conduct that is a cause of personal injury or death . . ."
"Because Connecticut and New York laws differ with respect to whether failure to wear a seat belt may be used to mitigate damages, a choice of law issue exists. Although the special defense at issue has been stricken in Connecticut, such a defense is required to be asserted in order to mitigate damages under New York law. The Connecticut Supreme Court [has] approved the analysis contained in the Restatement (Second) of the Conflict of Laws, specifically §§ 6 and 145, for purposes of determining the applicable law in a tort controversy . . . Section 145 lists the contacts of each jurisdiction that are factors in determining choice of law pursuant to § 6, including `(a) the place of injury; (b) the place where the conduct causing the injury occurred; (c) the domicile of the parties; and (d) the place where the relationship, if any, between the parties is centered.'" (Citations omitted; internal quotation marks omitted.) Partman v. Budget Rent-a-Car of Westchester, Inc., 43 Conn. Sup. 239, 242-44, 649 A.2d 275 (1994). "Section 6 provides in pertinent part that `the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.' Restatement (Second), Conflict of Laws § 6 (1971)." Id., 244 n. 2.
While it is true that the accident in the present case occurred in Connecticut, our Supreme Court has "expressly abandoned categorical allegiance to the doctrine of lex loci delicti in tort actions." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, 265 Conn. 791, 800 (2003). The court must, therefore, look to §§ 6 and 145 of the Restatement (Second) of the Conflict of Laws. "As noted above, the Connecticut legislature endorsed a policy that a driver or passenger injured while not wearing a seat belt should not have his or her recovery reduced. Thus, Connecticut has an interest in protecting the compensation rights of its domiciliaries." (Emphasis added.) Partman v. Budget Rent-a-Car of Westchester, Inc., supra, 43 Conn.Sup 245. By contrast, "New York's interest in passing its seat belt statute, which permits the mitigation of damages for failure to wear a seat belt has been described as follows: `[e]ach year, this law will save 300-400 lives and reduce or eliminate 70,000 injuries. In addition, it will result in a savings of approximately $240 million annually in various costs imposed on society as a result of these needless tragedies.' . . . Thus, New York presumably views a provision permitting mitigation of damages as an incentive for citizens to wear seat belts." (Citation omitted; emphasis added.) Partman v. Budget Rent-a-Car of Westchester Inc., supra, 43 Conn. Sup. 245-46.
The court finds that based on the preceding analysis of the divergent state interests involved in General Statutes § 14-100a and New York Vehicle Traffic Law § 1229-c, the domicile or citizenship of the parties is of prime importance in determining which law to apply to the present case. Giguere and Lariviere, however, do not allege any facts pertaining to the domicile or citizenship of the parties in their answer, special defenses and cross claim; nor, for that matter, does the plaintiff in his complaint. "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleadings]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]n light of the `searching case-by-case contextual inquiry' that is encouraged under the Restatement, it would be inappropriate to decide the choice of law issue at this stage in the proceedings in the absence of a more complete set of facts." Ffolkes v. Pasko, Superior Court, judicial district of Stamford, Docket No. CV 96 0154395 (May 13, 1997, Karazin, J.). Because the domicile or citizenship of the parties is not alleged in the pleadings, there are insufficient facts before this court to decide the choice of law issue. The motion to strike subsection four of the first and second special defenses is therefore denied.
B
The plaintiff moves to strike subsection three of the first and second special defenses on the ground that a violation of § 14-36 cannot be alleged as a special defense in a civil action. Subsection three of the first and second special defenses alleges that the plaintiff "operated his vehicle without a valid motor vehicle operator's license in violation of . . . § 14-36 . . ."
"Any adverse party who objects to [a motion to strike] shall, at least five days before the date the motion is to be considered on the short calendar, file and serve a memorandum of law." Practice Book § 10-42(b). "Prior to the amendment of . . . Practice Book § [ 10-42 in 1989], a party who failed to timely file a memorandum of law in opposition to a motion to strike was deemed to have consented to the granting of the motion . . . With the deletion of the foregoing provision from [§ 10-42], the failure to timely file an opposing memorandum will not necessarily be fatal and the court may therefore address the merits of the motion. However, despite the amendment to . . . Practice Book § [ 10-42], the filing of a memorandum in opposition to a motion to strike is mandatory and the failure to file such may still serve as a ground for granting a motion to strike." (Emphasis in original; internal quotation marks omitted.) Leshine v. Goodrich, Superior Court, judicial district of New Haven, Docket No. CV 01 0448323 (May 15, 2003, Licari, J.).
Although Giguere and Lariviere filed a timely opposing memorandum, they failed to address the plaintiff's ground for moving to strike subsection three of the first and second special defenses. Giguere and Lariviere have failed, therefore, to file a timely memorandum in opposition to the motion to strike subsection three of the first and second special defenses. Id. Because the failure to file an opposing memorandum may still serve as a ground for granting such a motion, the motion to strike subsection three of the first and second special defenses is granted.
C
The plaintiff moves to strike the fourth special defense in its entirety on the ground that "it alleges apportionment of damages among nonparties and therefore is contrary to . . . General Statutes § 52-572h." The fourth special defense alleges that "[i]f any injuries and/or damages were sustained by [the] plaintiff at the time and place and in the manner alleged in the complaint, said injuries and damages are attributable, in whole or in part, to the culpable conduct of persons and/or entities other than [Lariviere and Giguere]."
Joinder of parties for apportionment purposes pursuant to § 52-102b is "the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h." General Statutes § 52-102b(f). "If [a] defendant [believes] that a nonparty [is] responsible for some or all of the plaintiff's injuries, it [is] his responsibility to implead that nonparty." Bradford v. Herzig, 33 Conn. App. 714, 724, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212 (1994).
Giguere and Lariviere complied with these requirements by filing their amended apportionment complaint against Yana Preiss on April 28, 2003. Prior to filing this motion to strike, moreover, the plaintiff himself amended his complaint to include one count against Preiss, which alleges that Preiss "may be liable for negligently failing to maintain her vehicle as alleged by [Giguere and Lariviere] in [their] apportiomnent complaint and cross claim." Although the fourth special defense does not name Preiss, the court finds that viewed in a light most favorable to sustaining its legal sufficiency, this special defense refers to a party to this action. The plaintiff's assertion, therefore, that the fourth special defense "alleges apportionment of damages among nonparties" is unfounded. As such, the motion to strike the fourth special defense in its entirety is denied.
III
For the foregoing reasons, the plaintiff's motion to strike is granted as to subsection three of the first and second special defenses, and denied as to subsection four of the first and second special defenses and the fourth special defense. It is so ordered.
Hale, JTR