Opinion
No. CV04 400 35 06 S
July 20, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiffs, Carlos Coelho and Marilton DeSouza, bring this action against the defendant, Matias Mattiaccio, seeking to recover damages for injuries allegedly sustained in a June 22, 2003 automobile accident.
At the time of the accident, Carlos Coelho was operating a motor vehicle on Interstate 95 in Greenwich. Marilton DeSouza was a passenger in the vehicle.
A collision with the vehicle operated by the defendant, Matias Mattiaccio occurred.
This action was begun on behalf of the plaintiff operator and the plaintiff passenger, returnable December 21, 2004.
The defendant Mattiaccio filed an answer to the plaintiff's complaint on February 24, 2005. In his answer, the defendant alleges that Carlos Coelho was negligent, and that his negligence contributed to the June 22, 2003 accident.
On March 30, 2005, the defendant filed a pleading styled "Counterclaim for Apportionment" against Carlos Coelho, seeking to apportion liability between both drivers, as to the claim brought by the passenger, Marilton DeSouza.
The plaintiff, in his capacity as an apportionment defendant, moves to strike the apportionment complaint. He claims that General Statutes § 52-102b(a) precludes the bringing of an apportionment complaint against one who is already a party to the action.
Section 52-102b(a) reads:
"(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 person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes under § 52-572h."
Carlos Coelho, in his capacity as an apportionment defendant, maintains that a claim for apportionment of damages, instituted by way of apportionment complaint, can only be successfully maintained against one who is not already a party to the litigation.
STANDARD OF REVIEW
A motion to strike tests the legal sufficiency of a pleading. Ferryman v. Groton, 212 Conn. 138, 142 (1989). It admits all well pleaded facts, and the court in ruling on a motion to strike must construe all facts alleged in a pleading in a manner most favorable to the nonmoving party. Rowe v. Godou, 209 Conn. 273, 278 (1988); Amodio v. Cunningham, 182 Conn. 80, 82 (1980).
If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 825-26 (1966).
Although a motion to strike admits all well pleaded facts, it does not admit legal conclusions, or the truth or accuracy of opinions. Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).
COUNTERCLAIM FOR APPORTIONMENT IS A PROPER PLEADING
Section 52-102b governs the means by which a defendant may be summoned to court, and added as a party for purposes of apportionment.
The text of § 52-102b(a), allows a person to serve an apportionment complaint upon one "not a party to the action who may be liable . . . for a proportionate share of the plaintiff's damages . . ." It is clear that the statutory language concerns non parties to the litigation, and has no application to one such as Carlos Coelho, who is already a party to the action.
The apportionment of damages statute was enacted for the express purpose of changing the common-law rule of joint and several liability. Baxter v. Cardiology Associates of New Haven, 46 Conn.App. 337, 381 (1997).
Section 52-572h(n), Connecticut General Statutes permits the trier of fact to consider the negligence of two classes of persons: 1) parties to the action, and 2) settled or released persons as defined in the statute. Donner v. Kearse, 234 Conn. 660, 671 (1995).
"(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but does not discharge any other persons liable upon the same claim unless it so provides."
Therefore, so long as the plaintiff, Carlos Coelho, remains a party, apportionment of damages will be applicable, and the court would charge the jury on the rule of apportionment of damages as to the plaintiff Marilton DeSouza.
Section 52-572h(f)(4).
However, were he to resolve his claim, or withdraw as a plaintiff without resolving the claim, Carlos Coelho would not be a settled or released party pursuant to § 52-572(n).
Under these circumstances, the rule of apportionment of damages would not apply to Carlos Coelho, in the absence of an apportionment complaint.
Furthermore, under that scenario, the defendant would be unable to utilize the provisions of § 52-102b(a), in an attempt to summon Carlos Coelho back into the case, because of the requirement that service of an apportionment complaint be made "within one hundred twenty days of the return date specified in the original complaint."
The Connecticut Supreme Court has determined that the requirements for service of process contained in § 52-102b(a) are mandatory, and represent the exclusive means by which a defendant can add a party to a case, who is or may be liable pursuant to § 52-572h of the General Statutes. Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20-21 (2004).
The Lostritto majority further determined that a failure to comply with the time limits established by § 52-102b(a) implicates personal jurisdiction over the defendant, rather than the court's subject matter jurisdiction. Lostritto v. Community Action Agency of New Haven, Inc., supra, 31-33.
The court has personal jurisdiction over Carlos Coelho. He submitted to the jurisdiction of the court when he filed this action.
The legitimate purpose served by the filing of the apportionment complaint is to ensure that the court will continue to retain jurisdiction over Carlos Coelho, in the event that he withdraws his claim, or settles his portion of the case, and files a withdrawal of action.
Without personal jurisdiction over Carlos Coelho, the remaining plaintiff, a passenger in the Coelho vehicle, would have her claim against Matias Mattiaccio governed by the rule of joint and several liability.
The result is a subversion of the public policy underlying the apportionment statute. It is particularly inappropriate in a situation where a defendant has raised the apportionment issue in a timely fashion by filing the Counterclaim for Apportionment.
While recognizing a split of authority on this issue, the court finds the exhaustive, well-reasoned and researched opinion of Judge Levin in Torres v. Begic, 2000 WL 872456 (Conn.Supr. June 13, 2000) ( 27 Conn. L. Rptr. 403) to be particularly persuasive and instructive.
In his opinion, Judge Levin points out that § 52-102b(a) discusses the means of bringing a party into a case, but is silent as to persons who are already parties.
No provision of the apportionment statute § 52-572h precludes the filing of an apportionment complaint against one who is already a party. This Court declines to read into the statute a prohibition, which the General Assembly has failed to explicitly enact.
To read into the statute a prohibition concerning the filing of an apportionment complaint against persons already parties to an action, would be to provide a potential avenue for circumventing the apportionment statute, while restoring the discarded rule of joint and several liability in certain situations.
Such a result is not required by the terms of the apportionment statute, 52-572h, or by the provisions of 52-102b(a), and is contrary to the public policy which limits the liability of a tortfeasor to the percentage of his or her own negligence.
The Motion to Strike filed by the plaintiff, Carlos Coelho, in his capacity as an apportionment defendant, is DENIED.
RADCLIFFE, J.