Opinion
FSTCV146021686S
04-13-2017
Robert Collier v. Norm Bloom and Son, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re OBJECTIONS TO AMENDMENT (#267.00 and #268.00)
Kenneth B. Povodator, J.
After the death of the named plaintiff and the substitution of his wife as executrix of his estate, the complaint was amended to reflect this substitution, but at the same time, the plaintiff sought to add loss of consortium claims--both ante-mortem and post-mortem. The defendants have objected to the amendment to the extent it includes the addition of loss of consortium claims, claiming that they are untimely and do not relate back for purposes of the statute of limitations. There does not appear to be any dispute as to the relevant dates: the underlying events occurred in mid-April 2011; the action was commenced in March of 2014 (return of service dated March 28, 2014 reflecting service on March 26, 2014); with the initial amendment and request to amend filed on December 29, 2016.
The defendants do not appear to object to the substitution of a representative after the death of the originally-named plaintiff nor to the addition of a claim that the death was caused by the events described in the complaint, the other significant changes wrought by the amendment.
An objection was filed to the initial amendment. The court perceived there to be a level of ambiguity as to what was new and what might have been attributable to incomplete editing of language from an earlier version of the complaint, so a further amendment was filed on February 10, 2017. The defendants' objections to that later amendment, clarifying issues identified in the earlier amendment, are currently before the court.
As a threshold matter, there is a question as to the propriety of relying upon a substantive objection as a basis for denying a request/motion to amend. While the statute of limitations often is addressed in connection with an objection to such a request/motion, with the issue being whether the claim relates back to an earlier and timely complaint, more generally our Supreme Court has indicated that legal challenges to the sufficiency of the proposed amendment are ill-suited for resolution in the context of an objection to a proposed amendment. Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 255-57, 905 A.2d 1165 (2006). In Rizzuto, the court specifically was addressing the propriety of addressing legal sufficiency in the context of an objection to an amendment--the applicability of the statute of limitations presumptively is a factual issue except when there is no dispute as to the operative dates and facts relating to dates, in which case the applicability may be susceptible to determination by a motion to strike, Forbes v. Ballaro, 31 Conn.App. 235, 239-41, 624 A.2d 389 (1993) which is a legal-sufficiency standard.
Again, the court recognizes that much of Connecticut's jurisprudence relating to the concept of relation back has been in the context of proposed amendments. Indeed, just recently, the Supreme Court attempted to clarify the proper approach to be taken:
After a careful review of our case law, it is apparent that in order to provide fair notice to the opposing party, the proposed new or changed allegation of negligence must fall within the scope of the original cause of action, which is the transaction or occurrence underpinning the plaintiff's legal claim against the defendant. (Emphasis as in original.) Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198 (2017).
Subject to the foregoing considerations, the court will attempt to address the merits of the parties' contentions.
The court's starting point is #157.00 in Padro v. Barba, No. HHDCV116026837S, 2015 WL 8487870, (Conn.Super.Ct. Nov. 17, 2015) , where Judge Huddleston undertook a comprehensive review of the relationship between wrongful death claims and the relation-back doctrine (when the death was outside of the time limits set by General Statutes § 52-555(a). Here, the court is being asked to go one step further, and analyze the relationship between a post-mortem claim of loss of consortium and a wrongful death claim that already is required to invoke the relation-back doctrine as described in Padro . Unlike a directly-injured party whose claim might transition from a claim of injuries to a wrongful death claim years later, there is no antecedent loss of consortium claim asserted by the proposed plaintiff-wife acting in a personal rather than representative capacity.
The parties identify conflicting trial court decisions on a somewhat narrower issue--can an injured spouse first assert a claim for loss of consortium " belatedly" (after the relevant statute of limitations appears to have expired)? The facts alleged to establish a basis for liability are the same, given the purely derivative nature of loss of consortium--only evidence relating to damages distinguishes direct tort liability and the liability for loss of consortium. This is consistent with the focus on " transaction or occurrence" as articulated in Briere, supra . However, as some cases have identified, there is nothing to which the court can relate back, when the spouse was not even a party until after the statute of limitations appears to have expired.
Although arising under insurance law such that the context is substantially different, the court finds the analysis in DeMarinis v. United Services Automobile Association Casualty Ins. Co., 44 Conn.App. 172, 687 A.2d 1305 (1997) to be helpful. " The language of [General Statutes § 52-555a] is clear and unambiguous, carving out of the total damages that might be recovered, those damages associated with the loss of consortium. The postmortem loss of consortium cause of action, although separate and independent as a basis for claiming damages, remains derivative of the claim arising out of injury to the spouse, and it could not come into existence without that injury, " 44 Conn.App. at 178. Although requiring a separate pleading in order to be claimed, loss of consortium is just a category of damages, part " of the total damages that might be recovered" as a result of the tortious conduct under consideration. Thus, to the extent that relation back looks to the alleged wrongful conduct of the defendant, the alleged wrongful conduct is identical to that previously alleged.
The case, in turn, largely relied on Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 524 A.2d 641 (1987). See, also, Voris v. Molinaro, 302 Conn. 791, 31 A.3d 363 (2011), emphasizing derivative nature of loss of consortium claim and dependence on the underlying personal injury claim.
Enacted as part of Public Act 89-148 (the source of what is now codified as § 52-555a) were what are now codified as General Statutes § § 52-555b and 52-555c. When a wrongful death claim can be asserted, an associated post-mortem loss of consortium claim also can be asserted (and joined with the wrongful death claim), with the limitations period applicable to the wrongful death claim being applicable to the wrongful-death-based loss of consortium claim as well. The derivative post-mortem claim for loss of consortium came into existence at the time of the death of the original plaintiff, and the post-mortem claim for loss of consortium is well within the applicable limitations period for commencing such a claim (General Statutes § 52-555c). See, e.g., Andersen v. Smart, J.D. Stamford, CV91 0117973 S, 1993 WL 29092, at *3 (Conn.Super.Ct. Feb. 2, 1993) --" One cannot claim that an action for postmortem loss of consortium could arise any earlier than the time the decedent spouse is pronounced dead."
The limited legislative history supports this as well, if weakly. In response to a question as to whether there would be increased costs to the Judicial Branch from adding such claims to trials, the answer suggested the existence of at-most trivial extra time devoted to such claims:
The situation with respect to ante-mortem loss of consortium, however, is not so clear. The parties have implicitly acknowledged the existence of a split of authority of trial courts in non-wrongful death contexts, i.e., " ordinary" situations of " belated" assertion of a loss of consortium. The court then is faced with a situation in which there is a direct claim of ante-mortem injuries, a claim of wrongful death, and a seemingly-timely assertion of post-mortem loss of consortium with a disputed claim of ante-mortem loss of consortium. Adding in the implication of DeMarinis that loss of consortium properly should be considered to be effectively an element of damages, and recognizing that the foregoing analysis makes loss of consortium part of the case (at least the post-mortem phase), the court believes it more appropriate to overrule the objection. (Again, the recently identified focus ( Briere ) on the " transaction or occurrence" --in connection with a claim of loss of consortium, identical to the original claim--mildly supports that analysis.)
In so doing, however, court emphasizes that this is not intended to be a definitive ruling to the effect that the statute of limitations, as a matter of law, is not applicable or that the entire loss of consortium claim definitively relates back so as to defeat any statute of limitations defense. The parties have treated the loss of consortium claim as monolithic or indivisible, but the court felt compelled to identify the statutorily-based potential if not actual divisibility of the claim, with potentially different analyses and rationales applicable or possibly applicable. It would be unfair to rule, conclusively, based on an analysis that the parties apparently did not foresee and certainly did not address
Subject to the identified qualifications, the objections are overruled.
SENATOR FREEDMAN:He made comment that there would be no additional cost to the State, but if this kind of suit is brought into the State court, would that not increase the burden of the State in terms of providing the services necessary for the suit?SENATOR BLUMENTHAL:None whatsoever because the two lawsuits would be tried together. In other words, and this is specifically provided in the statute, that the same facts necessary to prove wrongful death would be necessary to be proved in the event of a cause of action brought by the surviving spouse based on loss of consortium. The two lawsuits would be tried together. There would be no additional cost. (1989STR00510-R00-TRN, which can be viewed at http://search.cga.state.ct.us/r/adv/dtsearch.asp?cmd=getdoc& Docld=10067& Index=1%3a% 5czindex%5c1989& HitCount=4& hits=8d97+8da7+8dc5+d3ae+& hc=54& req=consortium& Item=9)