Opinion
No. CV 04-4002203 S
October 11, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS APPORTIONMENT COMPLAINT (#117)
The court heard oral argument on the apportionment defendants Home Depot USA, Inc.'s and Home Depot Supplies, Inc.'s (hereafter, collectively, "Home Depot") motion to dismiss as untimely an apportionment complaint filed by apportionment defendant K-Co Electric, LLC (K-Co) (#117) (motion) at the short calendar on September 26, 2005. Thereafter, pursuant to the court's direction, the parties involved in the motion submitted supplemental memoranda of law, which the court has considered. For the reasons set forth below, the court dismisses the apportionment complaint.
Neither of the parties involved with the motion requested the opportunity to present testimony. None was necessary for adjudication of the motion.
I Background
In the motion, Home Depot contends that the court lacks personal jurisdiction over Home Depot, since K-Co's apportionment complaint (#112) is untimely, pursuant to General Statute § 52-102b, as it was not "served within one hundred twenty days of the return date specified in the plaintiff's original complaint." See General Statute § 52-102b(a). Here, it is undisputed that the return date for the original complaint in this action was November 30, 2004. K-Co's apportionment complaint against Home Depot is dated May 19, 2005, and, according to the marshal's return, which is present in the court's file, and the accuracy of which is undisputed, service thereof occurred on May 20, 2005, more than 120 days after November 30, 2004. In addition, the court file reflects that defendant/apportionment plaintiff Jean Dube, d/b/a Cabinets Unlimited (Dube) served K-Co, as an apportionment defendant, on March 9, 2005. See #105 (return of service). This date of service also is not disputed. Thus, at that time, 21 days remained before March 30, 2005, the 120th day after November 30, 2004. CT Page 13938-ea
Section 52-102b(a) provides, "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 day 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. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h." (Emphasis added.)
The court takes judicial notice of the contents of the file. See Connecticut Code of Evidence, §§ 2-1 and 2-2.
In response to the motion, K-Co argues that "General Statute § 52-102b(b) guarantees that an apportionment defendant has all remedies that are available to an original defendant." See K-Co's memorandum of law, p. 3. Section 52-102b(b) provides, in pertinent part. "[t]he apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint . . . The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party." K-Co contends that, as regards it, the "original complaint," for the purposes of § 52-102b(a)'s 120-day period, was not that filed by the plaintiff Michael Lauretti against Dube, which, as stated above, had a return day of November 30, 2004. Rather, K-Co asserts that the "original complaint" was Dube's apportionment complaint against K-Co (# 105), dated March 7, 2005, which had a return date of March 22, 2005, making its apportionment complaint against Home Depot timely. See K-Co's memorandum of law, pp. 3-4. K-Co's memorandum of law cited no case law supporting this interpretation of § 52-102b.
II Discussion
At oral argument, the parties noted the applicability of this court's previous decision, Cooksley v. City of New Britain, Superior Court, judicial district of New Britain at New Britain, Docket No. CV99-0498574 (April 2, 2001, Shapiro, J.) ( 29 Conn. L. Rptr. 631), which interpreted § 52-102b(a)'s 120-day period as dating from the return day on the plaintiff's original complaint, not from the return day on a third-party/apportionment complaint. In Cooksley v. New Britain, supra, this court addressed the same argument now raised here by K-Co. See id. There, the court stated, "the statute clearly mandates that the apportionment complaint be served within 120 days of the plaintiff's original complaint." Id.
K-Co asked the court to re-examine its interpretation in Cooksley v. New Britain, supra, in light of our Appellate Court's recent decision in Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 881 A.2d 379 (2005) (" Alfano"), which was issued on August 16, 2005. The court directed the parties to submit supplemental memoranda addressing the applicability of Alfano to the issues raised by the motion.
In Alfano, our Appellate Court did not mention § 52-102b, let alone interpret it. In neither of its memoranda of law did K-Co address our Supreme Court's decision in Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), which was cited by Home CT Page 13938-eb Depot in its original memorandum in support of the motion, and which explained § 52-102b's meaning and purpose.
There, our Supreme Court agreed with the apportionment defendants that "compliance with the time limitation contained in § 52-102b(a) is mandatory and, therefore, because the defendants served the apportionment complaint more than 120 days after the return date of the original complaint, the trial courts properly dismissed the apportionment action." Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 17-18.
Alfano did not involve an apportionment complaint which was served by a defendant on a third party. Rather, its discussion of apportionment occurred in the context of consideration of whether an individual, who, as an original defendant, already was a party, and as to whom the court had directed a verdict in his favor, should appear on the plaintiff's verdict form as a person to whom liability could be apportioned by the jury. See Alfano v. Randy's Wooster Street Pizza Shop II, Inc., supra, 90 Conn.App. 769-71. Referring to General Statute § 52-572h, the Appellate Court noted that "[t]he stated purpose behind the apportionment statute is to prevent any one defendant from having to pay more than his proportional share of the damages." Id., 777. The court concluded that allowing liability to be apportioned to the defendant as to whom a directed verdict had been granted promoted that purpose, and avoided a reversion to the common law's joint and several liability, which § 52-572h had supplanted. See id., 777.
Thus, Alfano did not address the procedure by which a third party can be brought in for apportionment purposes, which is the subject of § 52-102b. As noted, Alfano dealt only with apportionment as to an original defendant at trial. Accordingly, this court is unpersuaded that Alfano requires the court to change its previously expressed view, in Cooksley v. New Britain, supra, concerning § 52-102b(a)'s requirement that an apportionment complaint must be "served within 120 days of the return date specified in the plaintiff's original complaint."
K-Co argues that, under this court's interpretation, in Cooksley v. New Britain, supra, a third-party defendant "would be forced to face joint and several liability for the conduct of the putative fourth-party apportionment defendant based solely on the fortuity of whether it was sued by the plaintiff or impleaded into the case as a third-party apportionment defendant." See K-Co's supplemental memorandum, p. 6. K-Co contends that, in contrast, under its interpretation, "every defendant would have the opportunity to implead parties for the purposes of apportionment." See K-Co's supplemental memorandum, p. 6. CT Page 13938-ec
The logical extension of K-Co's argument is that succeeding apportionment defendants would have 120 days from the return date of an apportionment complaint to bring in "fourth party apportionment defendants," a process which could continue on without any outside time limitation, as apportionment defendants sought, as apportionment plaintiffs, to bring in new parties. As our Supreme Court discussed in Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 10, this is precisely what our legislature designed § 52-102b to avoid, not promote.
In discussing the purposes of § 52-102b, the Supreme Court cited legislative history, including testimony before the legislature. "The first problem is that a lawyer may [bring] suit in a timely fashion maybe three or four or five months after he gets the case and the defendant waits until two years and three months and then brings in third parties that the defendant has known about all along . . ." Id., 24-25, quoting remarks of William Gallagher, representative of the Connecticut Trial Lawyers Association. The court stated that "it is apparent that the legislature intended § 52-102b to implement the right to apportionment that previously had been created in § 52-572h. Indeed, by its own terms, § 52-102b operates only in conjunction with § 52-572h and its primary application is to effectuate the right to apportion liability." Id., 25. The court stressed also that "§ 52-102b was designed to clarify and make uniform the method of apportioning liability . . ." Id., 26.
Further, the Supreme Court stated that, "[h]aving concluded that § 52-102b created rights that did not exist at common law, we further conclude that the statute's 120-day time limitation is a substantive limitation on the right to apportionment. As we already have stated, § 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty. This was not possible prior to § 52-102b, which delineated the proper timing and method of service of an apportionment complaint." Id., 26.
Contrary to Lostritto v. Community Action Agency of New Haven, Inc., supra, K-Co's interpretation would permit a return to a process of bringing in parties for apportionment purposes without an end point, the opposite of "accomplishing apportionment with reasonable certainty." Id.
Also, if the legislature had intended "the return date specified in the plaintiff's original complaint" in § 52-102b(a) to encompass the return date on subsequent apportionment complaints, it easily could have said so. After all, within § 52-102b(a), our legislature specifically defined the term "apportionment complaint," clearly intending a different meaning CT Page 13938-ed for that defined term than that of the "plaintiff's original complaint." See LoPresto v. State Employees Retirement Commission, 234 Conn. 424, 451-52, 662 A.2d 738 (1995).
See text of § 52-102b(a), quoted above in footnote 2.
Thus, here, the court is unpersuaded that K-Co's interpretation comports with § 52-102b. K-Co did not avail itself of the opportunity to serve an apportionment complaint within the applicable 120-day period, which is mandatory.
With respect to K-Co's argument that a defendant may face joint and several liability based on the fortuity of whether it was sued by the plaintiff or impleaded into the case as a third-party apportionment defendant, the remedy lies with the legislature. See Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 811, 817 A.2d 619 (2003). The court cannot revise the statute. See Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 629, 854 A.2d 1066 (2004) ("It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is the function of the legislature." (Internal quotation marks omitted.)).
CONCLUSION
For the foregoing reasons, the motion to dismiss the apportionment complaint is granted. It is so ordered.
In view of the court's finding that the service of the apportionment complaint was untimely, it need not consider Home Depot's other argument, that there was inadequate service of process as to Home Depot Supplies, Inc.