Opinion
No. FBT CV 08 5019677 S
May 20, 2009
Memorandum of Decision
Presently before the court is a motion to dismiss filed by the apportionment defendant, Jack Edwards ("Edwards"). (#114.00.) That motion seeks to dismiss the third count of an apportionment complaint served on the apportionment defendant by the defendant/apportionment plaintiff, Charter Oak Appraisals, LLC (Charter Oak). In his motion to dismiss, Edwards claims that the third count, asserting a right to indemnification cannot be joined with an apportionment complaint without prior permission of the court.
BACKGROUND
On October 18, 2008, the plaintiff, Mary Larocca, commenced this action by service of process on Charter Oak. In her three-count complaint for negligence, breach of warranty and misrepresentation, the plaintiff seeks recovery for damages stemming from an incorrect real estate appraisal. In her complaint, Larocca alleges the following facts. On May 1, 2008, Larocca, through her real estate broker, contracted with Charter Oak to perform a written appraisal of 477 Old Field Road in Southbury, Connecticut (the property). This was done "in contemplation of taking a deed in lieu of foreclosure." The written appraisal, which was submitted to Larocca by Charter Oak on May 16, 2008, was allegedly flawed: in that it did not mention or contemplate certain deficiencies in the property that would reduce its value.1 The plaintiff claims that, in reliance on the appraisal's accuracy, she accepted the deed in lieu of foreclosure, as the appraisal value was greater than the debt owed her. The plaintiff further claims that due to the inaccuracy of the appraisal, the property value was, in fact, much less than the debt due, and, as consequence, she suffered economic damages in the amount she might have collected as a deficiency judgment had she pursued her foreclosure action.
Thereafter Charter Oak served and filed a three-count apportionment complaint, dated January 6, 2009, against Edwards as the apportionment defendant. The apportionment complaint realleges the relevant factual allegations from the complaint and further alleges the following. Edwards was a provisional appraiser hired by Charter Oak.2 Edwards' supervisor, Harold Pollock, was a licensed real estate appraiser and a "member" of Charter Oak. Edwards performed the appraisal of the property and produced the report in question in the present matter. Counts one and two seek apportionment of damages for any determined negligence and misrepresentation, respectively. Count three seeks indemnification from Edwards, as he "was in control of the appraisal of the property, and had the sole obligation and duty to conduct an interior inspection of the dwelling."
On February 27, 2009, Edwards filed a motion to dismiss count three of the apportionment complaint on the ground that the court lacks subject matter jurisdiction to hear a claim for indemnity in an apportionment complaint. Edwards filed a memorandum of law in accordance with Practice Book § 10-31. On April 29, 2009, Charter Oak as apportionment plaintiff filed a memorandum in opposition. The court heard the matter at short calendar on May 4, 2009.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
Edwards' motion to dismiss the third count of the apportionment complaint claims that the court cannot exercise its subject matter jurisdiction over him, pursuant to General Statutes § 52-102a, the impleader statute. In his memorandum of law, Edwards argues that a claim for indemnification cannot be asserted in the apportionment complaint because Charter Oak did not comply with the procedural requirements of § 52-102a(a). He further argues that "numerous Superior Courts have stricken indemnification counts where a defendant alleged a claim for indemnification in an apportionment complaint."
In opposition to the motion to dismiss, Charter Oak claims that it did not bring its apportionment complaint pursuant § 52-102a. Rather, Charter Oak argues that this action arises from the apportionment statute, § 52-102b, and, because an apportionment party becomes "a party for all purposes," Charter Oak would not need to implead Edwards in order to establish a cross claim for indemnification, as "a cross claim between persons who are already parties to an action" is proper. Furthermore, Charter Oak argues that Edwards is merely "challenging the legal sufficiency of Charter Oak's indemnification count, and not the court's subject matter jurisdiction" and, consequently, argues that Charter Oak has sufficiently pleaded the elements of indemnification to survive a motion to strike.
The apportionment statute § 52-102b, provides that "[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 . . . The person upon whom the apportionment complaint is served . . . shall be a party for all purposes . . ."
Counts one and two of the apportionment complaint seek apportionment from Edwards and are not addressed in Edward's motion to dismiss. Count three specifically seeks indemnification. Neither our Supreme Court nor our Appellate Court have considered whether an indemnification count is properly included in an apportionment complaint. However, several judges of the Superior Court have considered the issue and held that an "indemnification count is inappropriate in an apportionment complaint." Bradley v. Randall, Superior Court, judicial district of Windham, Docket No. CV 95 0052173 (April 8, 1996, Sferrazza, J.) (18 Conn. L. Rptr. 636), aff'd., 45 Conn.App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997); see Rosario v. Orlando Annulli Sons, Superior Court, judicial district of Hartford, Docket No. CV 07 5007896 (August 9, 2007, Wagner, J.T.R.) [44 Conn. L. Rptr. 9]; see also Miller v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0177835 (September 17, 2001, Adams, J.) (contract indemnity claim in apportionment complaint improper without first receiving permission to implead); Lalond v. Devon Post No. 1788, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 065494 (October 26, 1999, Grogins, J.) (apportionment complaint that sets forth an indemnification cause of action within an apportionment claim is improper); Clark v. The Vin Agency, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 95 69 40 (August 18, 1997, Skolnick, J.) (20 Conn. L. Rptr. 286) (indemnification and apportionment cannot be brought in same complaint); see, e.g., Sheehan v. Donkor, Superior Court, judicial district of New Britain, Docket No. CV 02 0513224 (January 6, 2003, Kocay, J.) (33 Conn. L. Rptr. 664) (apportionment complaint sounding in indemnification regarding vicarious liability is inappropriate).
These courts have concluded that the fundamental differences between apportionment and indemnification mandate this result. "[T]he impleading statute addresses the situation where the third-party defendant is or may be liable for all or part of the plaintiff's claim against the third-party plaintiff. The apportionment statute addresses only those situations where the third-party defendant is or may be liable for a proportionate share of the plaintiff's damages." Clark v. The Vin Agency, Inc., supra, 20 Conn. L. Rptr. 288. In Clark, the defendant filed a two-count apportionment complaint. Count one sought apportionment of liability, count two sought indemnification. The court held that "[w]hen reading [§§ 52-102a and 52-102b] together, it becomes apparent that claims under each may not be brought within the same complaint. Impleading is accomplished with the permission of the court, while filing an apportionment complaint is done at the discretion of the defendant where allowed under § 52-572h." Id.
The alleged deficiencies include: Low ceiling height, poor layout, lack of closets and exterior laundry hookups. Similarly, the plaintiff claims that the appraisal did not mention the disparity between the appraised house and the two comparable houses in the appraisal, including the relative size of the plot of land, remodeling and the existence of a finished basement.
The pleadings in this case show that the defendant/apportionment plaintiff is seeking indemnification in its apportionment complaint, and that the defendant/apportionment plaintiff has not filed a motion requesting permission to implead the apportionment plaintiff.
CONCLUSION
The court recognizes that the defendant can easily amend its complaint against Edwards to add an indemnification count. Accordingly, it appears that Edwards' motion to dismiss will serve neither his ultimate interests nor those of judicial efficiency. See the useful discussion on point in Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. 547104 (February 24, 2000, Corradino, J.) [26 Conn. L. Rptr. 419]. However, this court agrees with those Superior Courts which have previously addressed this issue, and finds that since Charter Oak failed to obtain permission of the court to file an indemnification claim pursuant to § 52-102a(a), Edwards' motion to dismiss must be, and it is hereby, granted.
According to the apportionment complaint, provisional appraisers are only authorized to appraise real property under the supervision of a licensed supervisory appraiser.