Opinion
No. CV 92 29 14 59 S
October 27, 1995
MEMORANDUM OF DECISION RE: MOTION TO IMPLEAD #163
On February 4, 1992, the plaintiff, Barbara Rice, brought a three count amended complaint against the defendants, Francis Sullivan, the City of Bridgeport and the State of Connecticut Commissioner of Transportation (the "state"). The first count alleges negligence against Sullivan, arising out of a motor vehicle accident. In the first count of her complaint, Rice alleges that Sullivan collided with the Rice's vehicle at the intersection of Fairfield Avenue and Lafayette Circle. Rice further alleges that the traffic signal at the intersection was not functioning at the time of the accident. The second and third counts, brought against the city and state, respectively, for apportionment purposes only, allege that the defective traffic light constituted a highway defect.
On November 30, 1994, the state brought a motion to strike the third count of Rice's complaint. That motion was granted by the court, (Moran, J.), on January 24, 1994. On March 14, 1994, the court, (Fuller, J.) granted Sullivan's motion to reargue as to the state's motion to strike. On July 25, 1994, the court, (Pittman, J.), upon reconsideration of the state's motion to strike, reaffirmed the previous order granting the motion. On November 10, 1994, the state filed a motion for judgment which was granted by the court, (Pittman, J.).
On June 13, 1995, Sullivan filed a motion to implead the state, a memorandum of law in support of his motion and a proposed third party complaint directed against the state. The state filed an objection to Sullivan's motion to implead on June 30, 1995.
Sullivan has moved the court to implead the state as a third party defendant for apportionment purposes only. Such motions are governed by General Statutes § 52-102a. "[A] defendant [does] not have a statutory right to implead a third party; the statute 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).
General Statutes 52-102a provides in relevant 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.
In support of his motion to implead, Sullivan argues that in order to accomplish the purposes of tort reform, the state must remain a party to the present action. That way, Sullivan argues, any liability to the plaintiff resulting from acts or omissions by the state may be assessed to reduce Sullivan's share of the liability for the accident.
In its objection to Sullivan's motion to implead, the state argues that (1) a motion to implead is procedurally improper when attempting to add a party for purposes of apportionment; (2) the court has already rendered a judgment in the state's favor in the present case; and (3) the state is immune from liability in the present case.
Sullivan's proposed third party complaint seeks as relief only "apportionment of liability pursuant to C.G.S. 52-572h(c)." Sullivan does not assert in his motion or proposed complaint, as required by § 52-102a, that the state is liable to him. Rather, Sullivan alleges in his proposed complaint that the state shares any liability to the plaintiffs. "This court has previously held . . . that a motion to cite in pursuant to General Statutes 52-102, rather than a motion to implead pursuant to General Statutes § 52-102a, is the vehicle for adding a defendant to a plaintiff's action for purposes of apportioning liability . . . ." Ortiz v. Douglas, 9 Conn. L. Rptr. 62 (April 27, 1993, Hennessey, J.). "The service of a summons and third-party complaint, pursuant to 52-102a, does not confer party status in the original action upon the third-party defendant so served, such that the third-party defendant's negligence would be considered in apportioning liability for damages." Shuhl v. New Haven Food Terminal, Inc., 11 Conn. L. Rptr. 416 (April 26, 1994, Hartmere, J.). Moreover, Sullivan "cannot circumvent the provisions of General Statutes 52-102 by instead seeking to implead [the state] under General Statutes 52-102a." Id.; see also, Franklin v. St. Luke's Community Services, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 116791 (March 30, 1995, Karazin, J.).
General Statutes § 52-572h(c) provides in pertinent part: "[i]n a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is sought shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . ."
Sullivan's motion to cite in, made pursuant to General Statutes § 52-102, was granted by the court, (Ballen J.), on March 22, 1993. The granting of that motion resulted in the plaintiff's naming the state as a defendant in its amended complaint. As indicated above, judgment has entered in the state's favor with respect to Rice's revised complaint.
A motion to implead pursuant to § 52-102a is improper where the moving party's claim for relief in the proposed complaint seeks apportionment of liability pursuant to General Statutes § 52-572h. Accordingly, Sullivan's motion to implead is denied.
McKEEVER, JUDGE