Opinion
DBDCV186029027S
09-10-2019
Aline Lamour et al. v. Lynne Given et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): D’Andrea, Robert A., J.
MEMORANDUM OF DECISION
D’Andrea, J.
The plaintiffs, Emanuela Fleurinvil and Moses Lamour, PPA Aline Lamour ("plaintiffs"), moved to strike the defendants Lynne Given and Robert Given’s ("defendants") counterclaims for apportionment dated July 9, 2019. This court reviewed the revised complaint dated November 12, 2018, the answer to amended complaint & special defense dated July 9, 2019, the motion to strike with memorandum of law in support of plaintiffs’ motion to strike defendants’ counterclaims for apportionment dated August 24, 2019, the objection to plaintiffs’ motion to strike dated July 26, 2019 and the reply to defendants’ objection to plaintiffs’ motion to strike dated July 30, 2019.
The plaintiffs seek, in their counterclaims, apportionment of liability pursuant to General Statutes § 52-572h, as to plaintiff Aline Lamour for the percentage of her negligence attributed to the damages incurred by plaintiffs Moses Lamour and Emanuela Fleurinvil, and further claim that the counterclaims for apportionment is authorized by General Statutes § 52-102b, and this statute strictly limits the service of an apportionment complaint "upon a person not a party to the action." Aline Lamour is already a party to the action and it is improper to file an apportionment complaint against her. Accordingly, the defendants’ counterclaims for apportionment should be stricken. The defendants object to plaintiffs’ motion to strike the apportionment claim as defendants dispute plaintiffs’ claim that a majority of the courts support the position that § 52-102b precludes apportionment of individuals that are already a party to the action, as a number of court opinions disagree with that position.
FACTS
This case arises out of a motor vehicle collision which occurred on January 9, 2017. The plaintiff, Aline Lamour, was the operator of a motor vehicle travelling in a parking lot of the Burlington Coat Factory Plaza at 1 Padanaram Road in the city of Danbury. Also in the vehicle with her, was the plaintiff, Emanuela Fleurinvil, and the minor plaintiff, Moses Lamour. The defendant was backing out of a parking space in a motor vehicle owned by the defendant Robert Given, with his permission as agent servant and/or employee and/or as a family member, when suddenly and without warning the defendants’ vehicle collided with the vehicle containing the plaintiffs causing them to suffer injuries. The plaintiffs filed a complaint dated October 16, 2018 and the Revised Complaint on November 14, 2018. On July 9, 2019, the defendants filed an Answer and Special Defenses, in which they assert counterclaims for apportionment against Aline Lamour for injuries sustained by Moses Lamour and Emanuela Fleurinvil. These counterclaims for apportionment are the subject of the plaintiffs’ motion to strike.
LEGAL STANDARD
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of the complaint ..." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ..." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488 cert. denied, 273 Conn. 916 (2005).
General Statutes § 52-102b states: "(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 defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint ..." (emphasis added).
DEFENDANT’S POSITION
"The majority of Superior Court decisions hold that General Statutes § 52-102b precludes a cross claim for apportionment against someone who is already a party to the action." Roklen v. Presnell, No. CV 040287569S, 2006 WL 829521, at *2 (Conn.Super.Ct. Mar. 15, 2006) (citing Ayalon v. Breakstone, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0078878-S (December 5, 2003, Cremins, J.), and there are a number of other cases from various jurisdictions that support this position). The Roklen court noted that the purpose of General Statutes § 52-102b(a) "is to allow a defendant to bring a non-party into the case for apportionment purposes." In deciding to follow the majority position, the Roklen court explained "[g]enerally, the decisions of the court that adopt the majority rule do so on the basis of the plain language and legislative history of § 52-102b as well as the fact that apportionment is already available to parties to negligence actions . For example, adopting the majority view in DiMaggio, the court opined that, [i]t is clear from the plain language of § 52-102b(a) that the statute applies only to persons not already parties ... Where the words of a statute are clear and unambiguous courts are not free to infer a meaning other than that expressed in its plain language ... Courts cannot, by construction, read into statutes provisions which are not clearly stated.’ Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn.App. 352, 355, 561 A.2d 981 (1989). This conclusion is further buttressed by a review of the legislative history of General Statutes § 52-102b. Seeking a clarification on whether the term party as used in the statute refers to someone who is party to the lawsuit ... Representative Lawlor, one of the proponents of the bill replied: Yes. In fact, it would mean anyone who is actually a party to the lawsuit." (Citations omitted; emphasis original; internal quotation marks omitted.) DiMaggio v. Tuck, supra, 36 Conn.L.Rptr. at 580. Roklen v. Presnell, No. CV 040287569S, 2006 WL 829521, at *3 (Conn.Super.Ct. Mar. 15, 2006) (emphasis added). Here, the defendants are not attempting to bring a non-party into this case. The plaintiff in the revised complaint, Aline Lamour, is already a party to this suit. Thus, the defendants’ counterclaims for apportionment should, based on the majority of cases, be stricken.
The defendants then in reply to objection to plaintiffs’ motion to strike posited additional case law and positions. It should be noted that the Sanon, which adopts the minority view, was not rendered in the judicial district of Danbury, but rather in the judicial district of Fairfield. This Court has recently considered the matter at issue and sided with the majority view precluding apportionment against an existing party to an action. In Arevalo v. Pohlot, No. DBD-CV- 14-6015519-S, 2015 Conn.Super. LEXIS 635, at *2 (Super.Ct. Mar. 23, 2015) the Honorable Anthony D. Truglia found that "both the legislative history and the clear language of § § 52-102b and 52-572h prohibit apportionment complaints against persons who are already parties to an action." Id. (citing Roklen v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV-04-0287569-S (March 15, 2006, Taylor, J.) [40 Conn.L.Rptr. 883, 2006 Conn.Super. LEXIS 750] ). Since plaintiff Aline Lamour is already a party to this action, the defendants’ counterclaims for apportionment should be stricken.
PLAINTIFF’S POSITION
The defendants dispute the plaintiffs’ allegations that a true majority of the superior court cases continue to support the plaintiffs’ position on § 52-102 citing Stash v. Steven, Superior Court, judicial district of New Haven, Docket No. CV-13-6038058-S (November 6, 2013, 62 Conn.L.Rptr. 147, Vitale, J.) In this very Count, the Honorable Wenzel, J., rejected the so-called majority argument in the case of Caroline Sanon v. Albert F. Paulin, 62 Conn.L.Rptr. 147; WL 2602641 (2016) and denied the plaintiff’s motion to strike counterclaims for apportionment against the plaintiffs, ruling that defendant motorist’s counterclaim for apportioniment of liability was appropriate. Judge Wenzel noted that § 52-102b(a) only speaks to the manner in which defendants may effect service (emphasis added) on who are not a party to the action and that the procedural process in that section is not needed where the apportionment defendant is already present in the case as a party. Judge Wenzel further noted that allowing counterclaims for apportionment furthers judicial economy: "It seems to the court that recognizing this defendant’s counterclaim for apportionment makes the claims and issues in this case immediately apparent to all parties. It will allow both the parties and the trier of fact to determine in a single proceeding the claims of both plaintiffs and apply the principles of negligence and apportionment in parallel. This reduces the danger of inconsistent verdicts and will expedite and resolution of the case. Moreover, allowing the claim for apportionment to be made in the form of a counterclaim protects the rights of the defendant to seek apportionment and avoids procedural machinations which might jeopardize that right." Sanon v. Paulin, supra, citing Coelho v. Mattiacccio, Court, judicial district of Fairfield, Docket No. CV04-40003506-S (July 20, 2005, Radcliffe, J.); 30 Conn.L.Rptr. 666.
As noted in 3 of Sanon, "any negligence of the plaintiff which led to his accident, whether measured for the special defense of comparative negligence or the counterclaim for apportionment, will involve the same factual issues and determinations by the finder of fact." Id. Wherefore, the defendants request that the plaintiffs’ motion to strike be denied and the defendants’ objection be sustained.
ANALYSIS
The Roklen case gives us guidance regarding the striking of an apportionment complaint. "The defendant ... is not left without a remedy. Since General Statutes § 52-572h(c) provides that all parties against whom recovery is permitted are liable only for their proportionate share of damages, and because [the proposed apportionment defendant] is a party, his percentage of negligence will be considered by the jury." Desmosthene v. Spignolio, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-01-0186972-S (July 24, 2002, Lewis, J.). "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. 0429034 (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. 0423742 (June 14, 2000, Levin, J.) (27 Conn.L.Rptr. 403, 404)." (Citations omitted; internal quotation marks omitted.) DiMaggio v. Tuck, supra, 36 Conn.L.Rptr. at 580. Roklen at *3.
However, the Roklen court elaborated more fully as the opinion went forward. "The opinions that follow the minority view have articulated several grounds for doing so. Primarily, the minority view holds that § 52-102b(a) is irrelevant to persons that are already parties to a suit. "[Section 52-102b(a)] applies only to bringing new parties into a lawsuit for purposes of apportioning liability. It does not apply to the assertion of apportionment claims against existing parties ... Hence, General Statutes § 52-102b is inapplicable [where the] defendant does not seek to add an additional party." Torres v. Begic, supra, 27 Conn.L.Rptr. at 404. At least one opinion following the minority view has further observed, "the legislative history is strikingly silent on whether or how an apportionment claim may be asserted by a defendant against another party ... The silence of § 52-102b and its legislative history is significant when viewed with reference to its ‘common law’ antecedent. Prior to the enactment of the statute in 1995, judges routinely entertained apportionment complaints by defendants against other parties ... If the legislature had intended to preclude apportionment claims by defendants against existing parties, it could have done so and would have done so in clear language. It did not." (Citations omitted.) Id., at 405. Additionally, the minority view points out that "there is nothing preventing a defendant who seeks apportionment from asserting grounds of negligence different than those asserted by the plaintiff. If an apportionment complaint is not permitted or required against a present party, that party may have no notice of the claim for apportionment let alone the specifications of negligence until the end of the presentation of evidence. Nor may that party have any pretrial notice, in the way of discovery, of the evidence (including expert evidence) to be presented against him." Finally, unlike the majority view, the minority view ostensibly enables apportionment even in the case where a potentially liable co-plaintiff withdraws from a suit. Roklen at 406.
This court agrees with the majority view, which was carefully outlined in a similar matter in the judicial district of Danbury, in Arevalo v. Pohlot, Superior Court, Docket No. CV-14-6015519-S. The Arevalo court looked to Viera v. Cohen, 283 Conn. 412, 927 A.2d 843 (2007), for guidance. Quoting Viera, the court stated "We recognize, however, the hardship to defendants similarly situated to the one in the present case. Section 52-102b(f) provides 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.’ Section 52-102b, however, provides a means to seek apportionment against persons who are not parties to the action only if an apportionment complaint is filed within 120 days after the return date in the plaintiff’s original complaint ... or against ‘settled’ or ‘released’ persons ... Thus, under the procedural scheme prescribed by the legislature, the defendant could not file an apportionment complaint against Cohen while he was a party. For the reasons set forth in ... this opinion, the defendant also could not seek apportionment against Cohen under the procedures for released or settled persons. Thus, this legislative gap leaves the defendant without recourse to obtain apportionment. The legislature ... has repeatedly manifested its concern for the overall fairness of our tort law ... We hope that the legislature will be able to find a place on its busy agenda for inquiry into the consequences and the desirability of today’s decision." (Citations omitted.) Viera v. Cohen, supra, 283 Conn. at 442-43, 927 A.2d 843. In other words, the court recognized in Viera the dilemma argued by the respondent in the present case, but also made it clear that filling this "legislative gap" is properly left to the legislature. In the present case, the court agrees with the majority position set forth in Roklen v. Presnell, supra, that both the legislative history and the clear language of § 52-102b and 52-572h prohibit apportionment complaints against persons who are already parties to an action. Arevelo at *4.
While the court in Sanon expressing the minority view stated that "This construction also avoids the conclusion that the legislature left a ‘gap’ in the right of any party to have a fair apportionment of responsibility determined." Id. at *3, and the minority view may lead to a preferred outcome in some circumstances, the sound reasoning employed by the majority view is more persuasive to this court than the minority view that is intended to correct what they see as a "gap" in the law dealing with apportionment. This court is not prepared to attempt to interpret legislation, which is clear and unambiguous as passed, and agrees with the Supreme Court that "the legislature will be able to find a place on its busy agenda for inquiry into the consequences and the desirability of today’s decision," which, decision clearly found that apportionment in this type of case is not allowed. Based on the majority of opinions of the Superior Court that have decided this issue, the motion to strike the defendants’ apportionment counterclaim is proper to address this issue, and the majority view of this issue is the soundest reasoning.
CONCLUSION
Based on the foregoing, the motion to strike the defendants’ counterclaims for apportionment is GRANTED.