Opinion
No. CV 08 5016792
July 24, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS APPORTIONMENT COMPLAINT
In this case the plaintiff claims to have fallen on property she owned. The town hired the defendant Hewitt under a town project to do work on the property. The plaintiff claims to have fallen on the property suffering injuries.
The original complaint is in one count and lies against the Town and Hewitt Construction. Both defendants filed requests to revise. The return date was January 15, 2008.
The plaintiff complied with these requests on November 12, 2008. Hewitt filed an answer to the revised complaint on November 24, 2008 and served an apportionment complaint on A-1 Disposal on December 10, 2008.
A-1 Disposal has now filed a motion under Practice Book § 10-30 to dismiss the apportionment complaint claiming it was filed well over the 120-day limit for filing such a complaint set forth in § 52-102b of the general statutes. It was filed and served "more than 120 days after the return date of the plaintiff's primary action, which was January 15, 2008."
(a)
In Lostritto v. Community Action Agency, 269 Conn. 10 (2004) the court concluded that as to § 52-102b "the statute's 120 day time limitation is a substantive limitation on the right to apportionment." The language of the statutory is "mandatory" and thus "failure to comply with its requirements prevents a defendant from exercising the right to apportion liability," id., page 26. The court further said that "the language of § 52-102b . . . is a service provision by its very terms." Id., page 32. And added "that in addition to the language of service of process, § 52-102b ties the 120-day window to the return date, a device primarily concerned with matters related to service of process," id., page 33.
Then came Pedro v. Miller, 281 Conn. 112 (2007). In that case the plaintiff was injured in an auto accident and sued the driver of the other car and its owner. The return date was February 18, 2003. On June 29, 2004 the plaintiff filed an amended complaint in which she alleged for the first time that during treatment for her back injuries she suffered further injury due to the physician's negligence. The defendants then served an apportionment complaint on the physician on October 22, 2004. The physician then filed a motion to dismiss claiming the court had no personal jurisdiction over him since the apportionment claim was not filed within 120 days of the original return date.
The trial court's granting of the motion was reversed by the Supreme Court which held that there had been a compelling equitable reason to toll the statute of limitations, id., page 120. The court noted that until the amended complaint was filed alleging medical malpractice against the physician "the defendants had no factual or legal basis for seeking apportionment against the physician," id., p. 119. The common-law doctrine of equitable tolling of limitation statutes had been recognized in a variety of contexts William v. Comm. On Human Rights Opportunities, 257 Conn. 258 (2001) (§ 46a-82(e) 180-day period to bring discrimination complaint against employer); Gager v. Sanger, 95 Conn.App. 632 (2006) (breach of contract action governed by § 52-576 limitations statute).
The court could find only twelve Connecticut appellate level cases discussing the concept of equitable tolling of statutes of limitation. They do not discuss the criteria to be generally used in applying the doctrine. But equitable tolling is a common-law doctrine and the discussion in some of out of state cases makes several useful observations, also see 51 Am.Jur.2d, Limitation of actions, §§ 174-178. In Abbott v. State, 979 P.2d 994 (Alaska, 1999) the court turned to federal precedent in defining the ambit of equitable tolling. And noted under federal case law the doctrine applies where . . ." (2) extraordinary circumstances outside the plaintiff's control make it impossible for the plaintiff to timely assert his or her claim or; (3) where the plaintiff by exercising reasonable diligence, could not have discovered essential information bearing on his or her claim," id., page 998. Commenting on Massachusetts law the court in CT Page 12969 Bernier v. Upjohn, 144 F.2d 178, 180 (CCA1, 1998) said . . ." the doctrine of equitable tolling suspends a running of a statute of limitations if a plaintiff exercising reasonable diligence could not have is discovered information essential to the suit." Another court has said that the doctrine should apply where there are rare and exceptional circumstances, Otto v. Johnson, 192 F.3d 510 (CA5, 1999). That perhaps goes too far since it would swallow the notion of doing equity but our court has noted the 120-period under § 52-102b is mandatory and the legislature explicitly added this statutory time requirement. It should be noted that the cases just cited discuss tolling in the context of original actions brought by plaintiffs. Here we have an apportionment complaint by a defendant but the same principles would seem to apply.
(b)
The court will now try to apply the general principles discussed to the facts of this case. It is difficult to see why or how the principles of equity could excuse, in this case the filing of the apportionment complaint beyond the 120-day time limit under § 52-102b. In its opposition to the motion to dismiss Hewitt notes that the original complaint was filed against Hewitt and the Town in one count. Because of this the argument is made that Hewitt, the apportionment plaintiff, could not determine what allegations of negligence pertained to him and which pertained to the Town of Hamden. It was only upon filing of the revised complaint on November 12, 2008 that "Hewitt was finally able to determine, with certainty the claims being made against it," the revised complaint was filed in response to requests to revise.
Counsel for Hewitt was certainly correct in demanding by way of a request to revise that the claims against each defendant be separated out into separate counts. But, in the court's opinion this has nothing to do with whether, given the original complaint, Hewitt should be held to the § 52-102b obligation to file the apportionment complaint within 120 days of the return date of the original complaint.
If the original complaint is examined it states that on the date of the injury Hewitt was an agent, employee and/or servant of the town (par. 2). It further states the town and Hewitt controlled, possessed and/or maintained the property where the accident happened (par. 4). Paragraph 5 explicitly states "all defendants" which, would include the town and Hewitt, in the exercise of reasonable care knew or should have known of the hazards on the property which caused injury to the plaintiff. Paragraph 6 then says the plaintiff's injuries were caused by the negligence "of the defendants or either defendant in one or more of the following ways . . ." Nine subparagraphs then set forth allegations of the specific negligence of both defendants together and/or either one of them separately. They include allowing the area to become dangerous, failing to inspect it or warn of dangerous conditions on the property or remedy them; each defendant is charged with knowledge of the dangerous conditions all of which are alleged to have led to the plaintiff's injuries.
Paragraphs 7 and 8 then state the town hired Hewitt to do a project at the subject property which Hewitt did in a defective, faulty and unworkmanlike manner. Paragraph 9 states the town failed to supervise Hewitt as to its deficient performance and allowed other agents of the town to exacerbate the defective and dangerous conditions on the property "including a faulty and dangerous removal of a dumpster and failure to repair the conditions despite assurances to the contrary."
Attached to the complaint as Exhibit A is a "notice of claim" submitted to the town. It states Hewitt, the agent of the town and his employees and/or subcontractors caused or permitted a dangerous condition to exist at the subject premises "causing (the plaintiff) to fall over an excessive and inappropriate accumulation of dirt, deep ruts on the property and a general uneven, ungraded, and dangerous landscape." In the next paragraph it mentions the faulty and dangerous removal of a dumpster by A-1 Disposal, the apportionment defendant.
The revised complaint filed on November 10, 2008 which Hewitt claims for the first time informed it of the claims made against Hewitt as opposed to the claims made against the town has two counts addressed to each defendant and does specify, in addition in the generally dangerous condition of the property, the particular condition causing the fall — accumulation of dirt, ruts on the property and uneven and ungraded landscaping. But these conditions are alluded to in the notice of claim attached to the first complaint and to the revised complaint. As to specific allegations of negligence as to both defendants or either one, paragraph 6 of each count parrots the allegations of negligence made in the original complaint's paragraph 6. Paragraphs 7, 8 and 9 of the first count of the revised complaint mirror the same numbered paragraphs of the original complaint and the second count against Hewitt also includes them.
If there was any confusion as to what either defendant was allegedly responsible for, nothing in the revised complaint would serve to clear up the confusion. The two complaints as indicated mirror each other. The point is that both the original and revised complaint assert both defendants are liable or either one of them to the exclusion of the other.
As noted, from the language of the original complaint there is a notice of claim which specifies the particular condition leading allegedly to the fall and specifically references the removal of a dumpster by A-1 Disposal. In the apportionment complaint itself it states Hewitt hired A-1 Disposal to remove the dumpster and alleges in the process of so doing A-1 Disposal left the lawn of the property in an unsafe condition as the plaintiff alleges. That knowledge did not come to Hewitt upon the filing of the Apportionment Complaint. It knew it before the commencement of litigation and the original complaint alleges the town and Hewitt were in control of the subject property before and at the time of the injury producing conditions.
Such factors are taken into account when applying an equitable tolling analysis to an original complaint filed beyond the limitations period, and the court can think of no reason why they should not be taken into account in applying the concept to an apportionment complaint filed after the 120-day period from the return date of an original complaint specified in § 52-102b.
The original complaint itself and that complaint coupled with the other factors just mentioned, should have alerted Hewitt to the need and right to file an apportionment complaint at the time the original complaint was filed.
The motion to dismiss filed by A-1 Disposal against the apportionment complaint is granted.
The confusion, if any, arising here lies in the language of the notice of claim which is picked up in paragraphs 3 of the revised complaint. It says the dangerous condition which caused the plaintiff to fall was due to 1. An excessive accumulation of dirt and an uneven and ungraded landscape on the one hand and 2. Deep ruts on the other. What on earth does the former have to do with the faulty removal of a dumpster — the deep ruts can be caused by the latter however. But that possible cause of confusion does not preclude reading the original claim and notice as alleging that the fall was due in part to the deep ruts caused by removal of the dumpster. That is exactly what the apportionment claim does. The same analysis by Hewitt could have been made when they were first served in this matter.