Opinion
HHDCV126028079S.
11-07-2012
Julie SHAFFER v. Constance MINDELL.
UNPUBLISHED OPINION
JANE S. SCHOLL, J.
In her complaint, the plaintiff, Julie Shaffer, alleges that while she was riding a bicycle in Israel, the defendant, Constance Mindell, was riding a bicycle in the same area as the plaintiff. The plaintiff alleges that Mindell lost control of her bicycle, swerved to the right, and collided with the plaintiff causing her injuries. Mindell has filed an apportionment complaint against State Farm Insurance Company in which she alleges that an unknown motor vehicle forced her bicycle from her path on the road, resulting in contact with the plaintiff's bicycle, and thereafter fled the scene. Mindell claims that if the plaintiff sustained injuries as alleged, they were caused in whole or in part by the operator of the unknown vehicle. Mindell also claims that Shaffer carried motor vehicle insurance with State Farm which provided uninsured motor vehicle coverage for the plaintiff. Mindell therefore seeks apportionment of liability against State Farm. State Farm has moved to strike the apportionment complaint since the apportionment statute does not provide for apportionment against unidentified tortfeasors. Shaffer does not object to the motion. Mindell does object on the basis that the identified uninsured motorist carrier of the plaintiff can stand in the shoes of an unidentified tortfeasor.
" A motion to strike challenges the legal sufficiency of a pleading ... and, consequently, requires no factual findings by the trial court ... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly ... rather than narrowly." (Internal quotation marks and citation omitted.) Giacalone v. Housing Authority of the Town of Wallingford, 306 Conn. 399, 403-4 (2012).
State Farm argues that pursuant to the Supreme Court's decision in Eskin v. Castiglia, 253 Conn. 516 (2000), the apportionment complaint is not allowed. There the Court held that an apportionment complaint may not be filed against an unidentified person. State Farm also cites Collins v. Colonial Penn Insurance Co., 257 Conn. 718 (2001). There the Court allowed apportionment against the plaintiff's uninsured motorist carrier where the plaintiff had sued the defendants as well as her carrier as a surrogate for an unidentified tortfeasor and had settled with the carrier. The Court in Collins held that the trial court should have instructed the jury on the issue of apportionment of liability between the defendants and the unidentified driver. Mindell also cites Collins in support of her claim against State Farm. Both parties cite Superior Court decisions supporting their positions.
The Superior Court decisions denying apportionment against an insurance carrier for the actions of an unidentified tortfeasor have focused on the fact that in Collins the plaintiff had named her carrier as a defendant in her initial complaint, alleging negligence on the part of an unidentified driver as well as other named individual defendants. See, for example, Santana v. Tom, Superior Court, Judicial District of New Haven at Meriden, Docket No. NNICV075002545S (Rubinow, J., Nov. 17, 2008) [ 46 Conn. L. Rptr. 665]; True v. Stratton, Superior Court, Judicial District of New Britain at New Britain, Docket No. HHB CV 10 6005127 S (Young, J., Jan. 26, 2011) [ 51 Conn. L. Rptr. 368]; Santos v. Jinete, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. FSTCV10-6007151S (Jennings, J.T.R., May 18, 2011) [ 52 Conn. L. Rptr. 11]. However this distinction is not supported by this court's reading of the Court's decision in Collins. Although the Court does distinguish Eskin on the basis that the insurer was already an original codefendant in Collins, and thus the issue of service on an unidentified person was not present, its decision does not make that fact alone controlling. In fact, the discussion in Collins supports apportionment against the plaintiff's uninsured motorist carrier here. In Collins the Court stated that: " An uninsured motorist claim may be brought in a multitortfeasor context so long as one of the tortfeasors is uninsured, or if one of the putative tortfeasors is unidentified, or the insurance coverage of one of the tortfeasors has been exhausted ... Traditionally, an action against an uninsured motorist carrier is one for insurance benefits and not for damages per se ... We previously have held, however, that in certain contexts, because of the ‘ hybrid’ nature of uninsured motorist coverage, the uninsured carrier operates in part as a ‘ surrogate’ for the financially irresponsible tortfeasor." (Internal quotation marks and citations omitted.) Id., p. at 732. The Court also stated: " We recognize that the damages sustained by a claimant may be caused by the negligence of more than one tortfeasor under § 52-572h. Also, it is important to note that the purpose of § 52-572h was to change the common law of joint and several liability such that a defendant would be liable only for that portion of the damages for which he was responsible ... In order to be consistent with both the language and the underlying policy of § 52-572h, this is a case where we acknowledge, as we did in Haynes, the sui generis nature of uninsured motorist benefits. Colonial Penn acted, in part, as a surrogate for the third party tortfeasor as well as a party against whom the plaintiff maintained a first party contract claim ... In the present case, Colonial Penn was not only a named, identifiable party in the original complaint, but its function in this case was to litigate the blameworthiness of the unidentified hit-and-run driver. That is, its liability in the uninsured motorist contract was predicated on the negligence of the phantom driver." Id., pp. at 737-8. The Court concluded that " it would be inequitable and contrary to the spirit underlying § 52-572h, to allow a plaintiff who does have uninsured motorist coverage and has collected an amount pursuant to a settlement in an automobile accident involving multiple tortfeasors, to deny application of the principles of Tort Reform II, namely, that each individual tortfeasor pay its fair share or portion of damages sustained. This is especially significant because Colonial Penn was brought into the litigation solely to litigate the blameworthiness of the unidentified driver. We conclude that in this case there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the underinsured carrier is named in the complaint to act as the unidentified driver's surrogate." Id., pp. at 743-4.
Therefore this court does not believe that the distinction in Collins that the plaintiff had named her uninsured motorist carrier as a defendant is determinative of the issue. If it were, then a plaintiff alone would be able to define the universe of possibly liable tortfeasors and deprive a defendant of any right to point to the liability of an unidentified driver despite the existence of an entity who can act as his surrogate. This would defeat a defendant's statutory right to apportionment. As the court stated in Luciani v. Berlingo, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV08-6001879S (Licari, J., May 19, 2008) [ 45 Conn. L. Rptr. 581], " [t]his court finds no requirement in Collins that such carrier be an original defendant. The apportionment plaintiffs assert their rights, not those of the original plaintiff. Such requirement would defeat the clearly expressed policy of ‘ tort reform’ that each person be responsible only for his/her proportionate share of damages. Nor are the movants unidentifiable persons."
This court sees no distinction in the equities in this case from those in Collins. As the Court noted there, one of the aims of tort reform was that a tortfeasor would only be held liable for his fair share of damages. General Statutes § 52-102b allows a defendant in any civil action 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. Here the unidentified driver may be so liable and consequently the plaintiff's uninsured motorist carrier.
At the same time, by allowing a defendant to cite in a plaintiff's uninsured motorist carrier as surrogate for an unidentified driver, a defendant is not exposing the carrier to any real liability unless the plaintiff determines to plead over against the carrier. As the Supreme Court has noted: " § 52-102b, which permits a defendant to file a claim against a nonparty defendant for the apportionment of any liability resulting from the plaintiff's direct claim, does not implicate monetary damages, but rather merely the apportionment of liability ... In other words, apportionment claims are claims for the apportionment of liability and are, therefore, separate and distinct from claims for monetary damages." (Citation omitted.) Bloom v. Gershon, 271 Conn. 96, 110 (2004).
State Farm also argues that it has no privity of contract with Mindell and therefore it cannot be compelled by Mindell to stand in the shoes of the unidentified tortfeasor. However the Court in Collins rejected the notion that the claim against the insured there was based on contract precluding apportionment. Collins v. Colonial Penn Insurance Co., 257 Conn. 718, 741-2 (2001). The Court has stated that the relationship between a defendant and a plaintiff's uninsured motorist carrier is " analogous to that of joint tortfeasors." Haynes v. Yale-New Haven Hospital, 243 Conn. 1, 27 (1997). Therefore privity is not necessary for apportionment purposes.
For the foregoing reasons the Motion to Strike is denied.