Opinion
No. CV 02-0470230 S
October 21, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE #108
In their second amended three-count complaint dated March 28, 2003, the plaintiffs, Barbara, Dajon and Tonja Bowen, allege the following facts. Barbara Bowen and Dajon Bowen were passengers in a vehicle operated by Tonja Bowen. The plaintiffs claim that they sustained serious injuries as a result of a motor vehicle accident allegedly caused by the negligence and carelessness of the defendant, Edward Roode, who was operating a vehicle owned by the defendant, Currier Trucking Corporation (Currier), as an agent, servant and/or employee of Currier.
The cause of action in count one is a negligence claim brought by Tonja Bowen against the defendants, Currier and Roode. Count two is a negligence claim brought by Barbara Bowen against the defendants. Tonja Bowen, as parent and next friend of the minor plaintiff Dajon Bowen, brings count three sounding in negligence against the defendants.
In their answer dated May 7, 2003, the defendants assert as a special defense to the first count that Tonja Bowen's alleged injuries were the result of her own negligence and carelessness. The defendants also assert a "counterclaim against Tonja Bowen for apportionment as to the second and third counts," seeking "a determination of the Apportionate share of negligence attributable to the plaintiff, Tonja Bowen, pursuant to General Statutes § 52-572h."
On May 30, 2003, the plaintiffs filed a motion to strike the defendants' counterclaim for apportionment on the ground that it does not seek affirmative relief and is therefore legally insufficient. As required by Practice Book § 10-42, the plaintiffs filed a memorandum in support of the motion to strike, and the defendants timely filed a memorandum in opposition.
"[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn. App. 495, 496, 495 A.2d 286 (1985). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003).
The plaintiffs move to strike the defendants' counterclaim on the ground that it is legally insufficient because it seeks apportionment only and does not seek affirmative relief. The plaintiffs argue in support of their motion to strike that a counterclaim requires the defendants to seek affirmative relief, and that a claim for apportionment does not do so, and therefore is subject to a motion to strike.
In their memorandum in opposition to the motion to strike, the defendants assert that the apportionment counterclaim is necessary in order to preserve the defendants' right to seek an apportionment of liability as against the plaintiff driver in the event that the plaintiff driver later withdraws from the action. The defendants further assert that their counterclaim is permissible under the rules of practice, provided that the counterclaim arose out of the same transaction and is necessary for a full and fair determination of the rights of the parties. Lastly, the defendants argue that an apportionment counterclaim may be served on a person who is already a party to the action, and is therefore not barred by General Statutes § 52-102b.
General Statutes § 52-572h(c) states: "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 . . ."
General Statutes § 52-102b(a) provides: "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." Subsection (f) of § 52-102b provides: "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." General Statutes § 52-102b(f). "The purpose of . . . § 52-102b is to effectuate a sharing of the responsibility between potential tortfeasors, as set forth in the legislative directive and the public policy of General Statutes § 52-572h(c)." Farmer v. Christianson, Superior Court, judicial district of Tolland, Docket No. CV 00 71954 (May 4, 2000, L.P. Sullivan, J.) ( 27 Conn. L. Rptr. 196, 197).
There is a split of authority in Connecticut at the Superior Court level as to whether a defendant may bring an apportionment claim against a plaintiff. "The majority of cases considering this issue . . . have refused to allow a defendant to bring an apportionment claim against a plaintiff." Evans v. Spinelli, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0279651 (February 10, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 52, 53). "Many judges hold that since the language of the statute specifically refers to `a person not a party,' it does not permit such claims." Id. See also Lackard v. Vandecar, Superior Court, judicial district of Hartford, Docket No. CV 01 0806605 (January 7, 2002, Rittenband, J.); Wright v. Ludwig, Superior Court, judicial district of Danbury, Docket No. CV 99 0335959 (November 2, 2001, Moraghan, J.T.R.); Delmonica v. Paint World, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276085 (August 16, 2001, Booth, J.); Pryce v. Keane Thummel Trucking, Superior Court, judicial district of Hartford, Docket No. CV 00 0800961 (July 20, 2001, Berger, J.); Rubbak v. Thompson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180009 (April 6, 2001, Lewis, J.) ( 29 Conn. L. Rptr. 316, 316).
On the other hand, a minority of judges have held that apportionment complaints may be filed against existing parties. See, e.g., Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. 429034 (March 27, 2001, Blue, J.) ( 29 Conn. L. Rptr. 311, 312) (allowing apportionment complaint against plaintiff); Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 423742 (June 14, 2000, Levin, J.) ( 27 Conn. L. Rptr. 403, 404) (holding that General Statutes § 52-102b "does not apply to the assertion of apportionment claims against existing parties"); Farmer v. Christianson, supra, 27 Conn. L. Rptr. 197 (allowing apportionment complaint against plaintiff-operator).
This court is persuaded by the reasoning of the majority of the Superior Court judges. A defendant may not bring an apportionment claim against an existing party. Moreover, "a counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 160, 459 A.2d 525 (1983); see also Pryce v. Keane Thummel Trucking, supra, Superior Court, Docket No. CV 00 0800961. "[A]n apportionment counterclaim is insufficient since it does not seek affirmative relief." Pryce v. Keane Thumnnel Trucking, supra, Superior Court, Docket No. CV 00 0800961. "[T]his holding does not bar recourse by the defendants if the [plaintiff-driver's] negligence was a cause of the claimed injuries. General Statutes § 52-572h(c) permits apportionment of liability among parties to a case. Thus, if a defendant asserts and proves a special defense that the [plaintiff-driver] was negligent and that negligence caused some of the damages the jury will have to take that negligence into account in assessing the liability of the defendants for the damages suffered by . . . plaintiffs." Gomez v. Payne, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0184054 (January 24, 2003, Adams, J.) ( 34 Conn. L. Rptr. 73, 75).
Accordingly, the plaintiffs' motion to strike the defendants' counterclaim is granted because the counterclaim seeking apportionment does not seek affirmative relief and is procedurally improper.
Howard F. Zoarski Judge Trial Referee