Opinion
File No. 19034
The plaintiffs moved to have the action here against the defendants stricken from the jury docket on the ground that it had not, as required by statute (§ 52-215), been claimed to the jury list within ten days after the issues of fact had been joined. After the original pleadings had been closed, the plaintiffs filed a substitute complaint to which the defendants filed an amended answer including a new special defense. Because the plaintiff's denial of the allegations of that special defense raised a new issue of fact, the defendants' claiming of the case to the jury list within ten days of that denial was timely. The motion to strike was, therefore, denied.
Memorandum filed July 29, 1980
Memorandum on named plaintiff's motion to strike. Motion denied.
John D. LaBelle, Jr., for the named plaintiff.
Michael Brodinsky, for the defendants.
The pleadings in the above-captioned matter were originally closed and the case claimed to the trial list on March 20, 1979. The case was not claimed for the jury docket at that time. Subsequently, the case of one of the plaintiffs was settled necessitating the filing of a substitute complaint. The substitute complaint itself did not raise any new issues but merely removed those allegations pertaining to the plaintiff whose case had been settled and conformed the complaint to the current rules of pleading.
The defendants, however, not only filed an answer to the substituted complaint, but also filed a new special defense alleging collection of basic reparations benefits by the plaintiff and an assignment of her right to recovery to the extent such benefits were received. The plaintiff filed no motions directed at this special defense but instead replied to the special defense by denying the allegations. Within ten days of that denial, the defendants claimed the case to the jury docket.
Section 52-215 of the General Statutes provides that within ten days after an issue of fact has been joined, the case may be claimed for the jury docket. Where such a claim has not been made at the original close of the pleadings, the mere filing of amended pleadings which raise no new issues of fact does not give rise to a further opportunity to claim a case for the jury. Atta v. Cutner, 95 Conn. 576. When amended pleadings raise a new issue of fact, however, a new ten-day period arises to claim the matter to the jury. Leahey v. Heasley, 127 Conn. 332. There does not seem to be any logical difference, regarding the right to a claim for a jury, as to whether the new issues are raised by the amended complaint or an amended answer or special defense to that complaint. In any event, if a new issue of fact is joined, it should revive a right of election for a jury trial. See Kuser v. Orkis, 169 Conn. 66, 76.