Opinion
CV156024314
06-03-2016
Valerie Johnson v. Jason D'Appollonio et al
UNPUBLISHED OPINION
OPINION
Timothy D. Bates, J.
FACTS
The plaintiff, Valerie Johnson, commenced this action by service of process of her complaint on the defendants, Jason D'Appollonio and Twin Hill Trans, LLC (Twin Hill), on May 7, 2015. The plaintiff's complaint contains a single cause of action sounding in negligence and claiming damages allegedly suffered by the plaintiff in an automobile accident with a vehicle driven by D'Appollonio on May 13, 2013.
In support of her claim, the plaintiff alleges the following: On the morning of May 13, the plaintiff was traveling southbound in her vehicle on Interstate 95 near Mystic, when she came upon a vehicle driven by D'Appollonio. Suddenly, the plaintiff's vehicle was struck by a tire from D'Appollonio's vehicle, causing the plaintiff to suffer both personal injury and property damage. The plaintiff alleges that D'Appollonio was negligent in that he failed to inspect his vehicle to ensure its safe operation, he was operating his vehicle at an unreasonable speed, he was inattentive to his driving, and he failed to keep his vehicle under control. As a result of the negligence, the plaintiff claims he incurred damages in the form of medical expenses, lost wages, lost earning capacity, and financial losses. Johnson further asserts that the defendant Twin Hill is liable for the conduct of D'Appollonio under General Statutes § 52-183, because the vehicle driven by D'Appollonio was owned by Twin Hill.
General Statutes § 52-183 provides, in relevant part: " In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
On January 7, 2016, the defendants filed a motion to implead nonparty Pete's Tire Barns, LLC, as a third-party defendant pursuant to General Statutes § 52-102a, on the theory that the proposed third-party defendant was liable to the defendants in full or in part for the injuries allegedly sustained by the plaintiff. The defendants allege that the proposed third-party defendant sold a defective tire to the defendants, which caused the defendants' accident with the plaintiff and the defendants' subsequent exposure to liability. The defendants' proposed third-party complaint contains two counts against the proposed third-party defendant; the first sounds in indemnification based on product liability, and the second sounds in spoliation of evidence. The defendants' motion is accompanied by a memorandum of law and a proposed third-party complaint.
General Statutes § 52-102a provides, in pertinent part: " (a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded. (b) The writ, summons and complaint so served shall be equivalent in all respects to an original writ, summons and complaint and the person upon whom it is served, hereinafter called the third-party defendant, shall have available to him all remedies available to an original defendant . . ."
The plaintiff filed an objection to the defendants' motion on January 28, 2016, on the ground that notwithstanding the defendants' stated intent to implead the proposed third-party defendant under § 52-102a, the defendants' true purpose was to implead the proposed third-party defendant for apportionment purposes without having to follow the timing requirements of General Statutes § 52-102b(a). The court issued an order on January 11, requiring the defendants to file a responsive briefing to the plaintiff's objection and for the parties to provide oral argument at a hearing scheduled before the court on March 7, 2016. The parties each filed supplemental memoranda in accordance with that order--the defendants on February 22 and the plaintiff on March 4--prior to oral argument, which occurred as scheduled.
General Statutes § 52-102b(a), pertaining to the filing of apportionment complaints, provides in relevant part: " A defendant in any civil action to which section 52-572h [pertaining to negligence actions] 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."
ANALYSIS
General Statutes § 52-102a(a) provides that " [a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded." " The purpose of § 52-102a . . . is clearly to obviate the multiplicity of actions . . . [W]hen [§ 52-102a] permits the impleading of one who 'is or may be liable' for the claim sued on, the purpose and effect of the quoted words is to accelerate the accrual of the right to assert a claim against the impleaded person although it does not affect his ultimate substantive rights . . . The [moving party] . . . therefore [has] the right . . . to implead the [third-party defendant] even though the [third-party defendant's] ultimate liability to the [moving party] was as yet undetermined. There must still, however, be a showing that, under applicable law, the [third-party defendant] 'may be liable' to the [moving party]." (Citations omitted.) Senior v. Hope, 156 Conn. 92, 96-97, 239 A.2d 486 (1968). " [A party does] not have a statutory right to implead a third party; [§ 52-102a] commits the decision of such motions to the sound discretion of the trial court." (Emphasis omitted.) Cupina v. Bernklau, 17 Conn.App. 159, 164, 551 A.2d 37 (1988).
In her objection, the plaintiff insists that the defendants cannot implead the proposed third-party defendant under § 52-102a, because it is apparent from the allegations in the defendants' third-party complaint that the defendants are proceeding on a theory of the third-party defendant's direct liability to the plaintiff--in other words, the defendants are attempting to pursue an apportionment theory under a different name. The defendants' reliance on Section 52-102a is misplaced, the plaintiff contends, because that section only permits a defendant to implead a third-party defendant on a theory of liability to the defendants, not on a theory of liability to the plaintiff . The plaintiff argues that on these facts, the proposed third-party defendant may only be impleaded via an apportionment complaint as described in General Statutes § 52-102b, of which the defendants cannot avail themselves because the 120-day window for filing an apportionment complaint has passed and the defendants have offered no justifiable excuse for the delay. Based on these premises, the plaintiff argues that the defendants' motion to implead should be denied as both improper in form and untimely in filing.
In response, the defendants argue that the allegations in their third-party complaint make clear that the defendants are not seeking to implead the third-party defendant on an apportionment theory, as the defendants are not claiming in any way that the proposed third-party defendant is directly liable to the plaintiff or that the proposed third-party defendant is liable in negligence. The defendants point out that their first count against the proposed third-party defendant is founded in product liability to the defendants, and is properly brought under the Connecticut Products Liability Act (CPLA), General Statutes § 52-572m et seq., because that statute is the exclusive remedy for claims arising from the sale of a product. As for the defendants' second cause of action, spoliation of the evidence, the defendants are seeking damages from the third-party defendant directly for its destruction of the allegedly defective tire and the consequent evidentiary impact on the defendants in the plaintiff's action. The defendants further assert that the plaintiff has argued neither injustice nor undue delay of this action in opposition to the defendants' motion to implead.
The plaintiff replies that the defendants cannot assert a product liability claim against the proposed third-party defendant because the defendants themselves are not product sellers, a prerequisite under General Statutes § 52-577a(b) that must be satisfied in order for a defendant to implead a third-party defendant on a theory of product liability. Prior to addressing the substance of the plaintiff's objection to impleading Pete's Tire, the court should comment on the procedure by which the plaintiff has chosen to raise the objection.
General Statutes § 52-577a(b) indicates, in relevant part, that " [i]n any [product liability] action, a product seller may implead any third party who is or may be liable for all or part of the claimant's claim, if such third party defendant is served with the third party complaint within one year from the date the [product liability] action . . . is returned to court."
As a preliminary matter, the plaintiff has not tailored its argument to the standard by which the court determines whether to grant a defendant's motion to implead under § 52-102a. Absent from the plaintiff's argument is any assertion that either the plaintiff will suffer an injustice or that the court will unduly delay the trial of this action by granting the defendants' motion--a notable shortcoming, as these two considerations are the metrics employed by the court to determine whether to exercise its discretion to grant a defendant's motion to implead under § 52-102a. See, e.g., Lesieur v. Rand-Whitney Containerboard, Superior Court, judicial district of New London, Docket No. CV-08-5009327 (September 29, 2010, Martin, J.) [50 Conn.L.Rptr. 561, ] (sustaining plaintiff's objection to defendant's motion to implead on grounds of injustice to plaintiff and delay of action); Phelan v. Miller, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV-01-0075700-S, (November 20, 2002, Sferrazza, J.) (sustaining plaintiff's objection to defendant's motion on grounds of injustice and delay based on proximity of motion to jury selection). Instead, by arguing that the defendants' impleader complaint is incorrectly pleaded as an apportionment complaint and that the defendants do not qualify as " product sellers, " the plaintiff improperly concentrates her challenge on the legal sufficiency of the defendants' proposed third-party complaint, rather than the factors to be considered in allowing impleading under CGS 52-102a(a).
" The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993); see also Levine v. DeCaro, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-97-0160233-S, (March 18, 1998, Mintz, J.) (identifying motion to strike as appropriate method to challenge propriety of defendant's third-party complaint based on theory of product liability indemnification). Courts that have addressed legal issues similar to those raised by the plaintiff in her objection have done so based on a motion to strike, not an objection to a defendant's motion to implead. See, e.g., Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 698 A.2d 354 (1997) (reviewing and affirming lower court's decision to strike defendant's apportionment complaint on basis that defendant's theory of apportionment could not be based upon product liability); Drew v. J.C. Penney, Inc., Superior Court, judicial district of Fairfield, CV-99-0367167-S, (May 17, 2000, Skolnick, J.) (addressing whether the defendant was required to be " product seller" to assert product liability claim in third-party complaint and whether plaintiff was permitted to file apportionment complaint against third party, in context of motion to strike). Accordingly, the plaintiff's arguments in opposition to the defendants' motion to implead would be more properly asserted as a motion to strike the defendants' third-party complaint, rather than as an objection to the defendants' motion to implead the proposed third-party defendant, and could be disregarded on this ground.
Nevertheless, some Superior Court decisions have considered grounds besides injustice to the plaintiff or undue delay in determining whether to exercise discretion in granting a defendant's motion to implead. See, e.g., Dizeno v. Daniels, Superior Court, judicial district of Fairfield, Docket No. CV-04-0409196-S, (November 30, 2004, Skolnick, J.) (addressing plaintiff's objection to defendants' motion to implead third party for indemnification on ground that motion was really an attempt at apportionment). Given that the legal sufficiency of a defendant's third-party complaint is at least tangentially related to whether the court should exercise its discretion to grant a defendant's motion to implead, and in light of the fact that the parties have submitted substantial argument regarding the substance of the plaintiff's objections, the court will address the merits of both challenges advanced by the plaintiff.
The plaintiff first contends that the defendants' proposed third-party complaint sounds in apportionment, rather than indemnification. This argument is not persuasive. Under § 52-102a, in any civil action, a defendant may implead another party so long as the defendant alleges the third party's liability to the defendant, not to the plaintiff. See Senior v. Hope, supra, 156 Conn. 97. In contrast, General Statutes § 52-102b allows, in relevant part, for " [a] defendant in any civil action to which section 52-572h applies [dealing with negligence actions] [to] serve a writ, summons and complaint upon a person not a party to the action who is or may be liable . . . for a proportionate share of the plaintiff's damages . . ." (Emphasis added.)
Here, the defendants have pleaded in their proposed third-party complaint that the proposed third-party defendant is liable to the defendants. In the first count of the defendants' proposed third-party complaint, titled " product liability indemnification, " the defendants allege that they " claim indemnification [from the proposed third-party defendant] against the claim for damages alleged by the plaintiff." In the second count, titled " spoliation of evidence, " the defendants allege that " as a result of the actions of . . . the [t]hird [p]arty [d]efendant . . . the [defendants] have been injured and/or damaged in their ability to properly defend [the] [p]laintiff's claim." Plainly, the defendants have alleged that the proposed third-party defendant is liable directly to the defendants, a fact which sounds in indemnification and not apportionment. Further, because the defendants neither assert negligence claims against, nor seek apportionment from, the proposed third-party defendant, the defendants would be unable to avail themselves of an apportionment complaint under § 52-102b, as that section is explicitly limited to situations in which a defendant seeks to apportion liability in the negligence context. Thus, based on the defendants' allegations, the plaintiff's argument that the defendants' proposed third-party complaint is an apportionment complaint in disguise is without merit.
The resolution of the plaintiff's second argument is more nuanced. The plaintiff contends that the defendants cannot implead a third-party defendant for indemnification premised on a theory of product liability, because only a product seller may assert an indemnity claim under the plain language of the CPLA. In support of that proposition, the plaintiff cites General Statutes § 52-577a(b), by which, " [i]n any [product liability] action, a product seller may implead any third party who is or may be liable for all or part of the claimant's claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section [dealing with statute of limitations for claimant to file a product liability claim] is returned to court." The plaintiff interprets this subsection of the CPLA as a limitation on who may assert a product liability claim for indemnification.
The plaintiff has not cited any case law to support her interpretation of § 52-577a(b). At first glance, however, our Appellate Court's holding in Paul v. McPhee Electrical Contractors, supra, 46 Conn.App. 18, appears to interpret § 52-577a(b) as placing a limitation on who may assert an indemnity claim based on product liability. In Paul, our Appellate Court affirmed a Superior Court's decision to strike a defendant's § 52-102b apportionment complaint on the grounds that 1) the defendant could not seek apportionment of the plaintiff's negligence damages via a theory of product liability asserted against a third party, and 2) the defendant was not a product seller, and had no right to implead a third-party defendant for indemnification via a theory of product liability under § 52-577a(b). See id., 21, 22-23. The factual predicate before the court in Paul was similar to the present case in that the plaintiff was asserting a negligence action against a nonseller defendant, and the defendant sought to assert a product liability claim against a third-party defendant, but importantly, Paul was addressing the sufficiency of an apportionment complaint, not an indemnification complaint. Id., 19-20.
While Paul was not addressing a defendant's claim for permission to implead under § 52-102a, based on Paul, a Superior Court in Davey v. Professional Properties II, LLC, Superior Court, judicial district of Waterbury, Docket No. X02-CV-06-5004272-S, (March 20, 2009, Eveleigh, J.), struck a defendant's § 52-102a third-party complaint for indemnification based on a theory of product liability, holding " the requirement in [§ 52-577a(b)] that only a 'product seller' may assert an indemnification claim under the [CPLA] is mandatory." Id. In so doing, the Davey court applied the holding in Paul to § 52-102a. Although the holding in Davey might suggest that this court should similarly conclude that, because the defendant in this case is not a product seller, the defendant cannot file an indemnification claim based on product liability pursuant to § 52-102a, this court is not convinced or bound by the reasoning in Davey, and holds that treatment of indemnification as a form of apportionment is not mandated by the holding of Paul .
The Paul decision does not stand for the proposition that indemnification complaints filed pursuant to § 52-102a on a theory of product liability can only be filed by product sellers, or that § 52-577a(b) requires such a result. Instead, the Paul court explicitly recognized that " [w]e do not decide whether an indemnification count based on common law principles could have been raised by the defendant under § 52-102a by moving for permission to implead an indemnity defendant . . ." Paul v. McPhee Electrical Contractors, supra, 46 Conn.App. 23, n.10. Critical to the holding in Paul was the defendant's improper use of § 52-102b outside of the negligence context. In its discussion of § 52-577a(b), the Paul court merely recognized that § 52-577a(b), alone, does not create an independent right for a defendant to implead a third party on a theory of product liability when that defendant is seeking apportionment of the plaintiff's damages via § 52-102b. The Paul decision leaves open the question of whether § 52-102a permits a defendant to base a third-party complaint for indemnification on product liability.
Nothing in the text of § 52-102a limits a defendant's ability to petition this court for permission to assert a third-party claim for indemnification based on product liability. In fact, our Supreme Court has indicated that the opposite is true. In Malerba v. Cessna Aircraft Co., 210 Conn. 189, 196-97, 554 A.2d 287 (1989), the court was faced with the question of " whether as a matter of law, an indemnification action may ever be pursued against the background of a statutory comparative liability action [in that case, the CPLA] where the trier of the first party claim against the various defendants is required to apportion liability among the plaintiff and all the defendants. In other words, does [that initial] finding . . . preclude any further finding that one of the defendants may be liable to the other defendant for all or a portion of the sums he or she was required to pay the plaintiff?" Our Supreme Court answered that question in the negative. " [A] finding that a given defendant was liable to the plaintiff does not necessarily determine whether that responsibility was based on passive negligence which might, therefore, entitle that defendant to a full reimbursement from other defendants based upon indemnification principles . . . [Thus], common law indemnification continues as a viable cause of action in the context of product liability claims . . ." (Emphasis added; footnote omitted.) Id., 198.
While the facts of Malerba are distinguishable from the present case in that the Malerba plaintiff had sued a product-seller defendant under a theory of product liability, and in this action the plaintiff has sued the nonseller defendants in negligence, that distinction does not alter the application of Malerba to these facts. In Connecticut, both negligence and product liability are statutory comparative liability actions. The Malerba court clearly held that in response to a statutory comparative liability action, third-party complaints for indemnification based on a theory of product liability are alive and well. Indeed, other Superior Courts have concluded, relying on Malerba, that a defendant may seek indemnification from a third-party defendant under § 52-102a via a theory of product liability. See Drew v. J.C. Penney, Inc. supra, Superior Court, Docket No. CV-99-0367167-S, (appropriate method for defendant to seek indemnification in product liability against third-party defendant from plaintiff's negligence claim is § 52-102a); Irvine PPA v. Liebert, Superior Court, judicial district of New London, Docket No. CV-50-9364, (September 12, 1990, Leuba, J.) (relying on Malerba to deny plaintiff's motion to strike defendant's third-party complaint for indemnification from plaintiff's negligence suit based on product liability theory).
Sections 52-102a and 52-577a(b) are capable of being construed together. See Malerba v. Cessna Aircraft Co., supra, 210 Conn. 194-96. It would be illogical to read § 52-577a(b) as a limitation on indemnification actions brought pursuant to 52-102a. The plain language of § 52-577a(b) indicates that it applies to " product sellers, " not " claimants" who seek to assert a product liability claim against a product seller. In this action, the defendants are 'claimants' as defined by General Statutes § 52-572m, for purposes of the CPLA. Therefore, § 52-577a(b) does not apply to this action. Rather than placing a limitation on who may assert a product liability claim as a claimant, Section 52-577a(b) merely " contemplates and provides for the allocation of liability along a product's chain of distribution." Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 233-34, 967 A.2d 1188 (2009). Section 52-577a(b) does not, by its terms, expressly limit the ability for the defendants, as claimants, to file a third-party complaint against the proposed third-party defendant under § 52-102a based on a theory of product liability, and the court rejects the plaintiff's argument to the contrary.
As explained by General Statutes § 52-577a(f), " [t]he definitions contained in section 52-572m shall apply to [§ 52-572a and its subsections]."
In addressing the substance of the plaintiff's objection to the defendants' motion to implead, the court does not intend to make a ruling on the legal sufficiency of the defendants' proposed third-party complaint.
CONCLUSION
Accordingly, the defendants' motion to implead the proposed third-party defendant, Pete's Tire Barns, LLC, is granted, and the plaintiff's objection is overruled.