Opinion
No. HHB CV 10 6005127 S
January 26, 2011
MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO STRIKE
FACTS
This action concerns a motor vehicle accident which occurred on February 3, 2009. The plaintiff, claiming personal injuries and damages has brought a complaint against Jared and Brendan Stratton, the respective operator and owner of the vehicle which allegedly struck him. These defendants served an apportionment complaint, presumably pursuant to General Statues § 52-102b, against GEICO Indemnity Company [GEICO], the plaintiff's uninsured motorist carrier, alleging that there was an unidentified tortfeasor who cut off the defendant operator, forcing him to strike the plaintiff's vehicle. The Strattons allege the unidentified tortfeasor's negligence was the proximate cause of the plaintiff's injuries and losses.
The apportionment defendant, GEICO, has filed a motion to strike, arguing that the defendants/apportionment plaintiffs lack privity of contract with GEICO and have no standing to assert their claim. The defendants/apportionment plaintiffs argue that such apportionment has been expressly permitted by the Connecticut Supreme Court and privity is not required as they are seeking apportionment, rather than coverage benefits.
Of importance is that the plaintiff did not plead the existence of an unidentified operator or alleged negligence on the part of anyone other than the defendant operator, Stratton. Neither did the plaintiff plead over against GEICO.
LEGAL STANDARD
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) CT Page 3814 Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency. (Internal quotation marks omitted.) Id.
The role of the trial court in ruling on a motion to strike is to examine the apportionment complaint, construed in favor of the pleaders, to determine whether the pleading parties have stated a legally sufficient cause of action. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
ANALYSIS
The issue of whether an insurance carrier may be impleaded as surrogate for an unidentified operator has been the subject of differing opinions within the Superior Court. Several courts have determined that the issue has been resolved by the Connecticut Supreme Court in Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A. 899 (2001). Other courts have determined that this situation is distinguishable from that of Collins.
In Collins, the plaintiff was injured in a multi-vehicle accident. She brought an action against the owner and operator of one of the other vehicles, as well as against her own insurance carrier, Colonial Penn Insurance Company [Colonial Penn]. Subsequently, the action as to Colonial Penn was settled during the trial. The trial against the remaining defendants proceeded. The trial court refused to instruct on, or submit interrogatories as to, apportionment of liability as to the settled party, Colonial Penn.
The Supreme Court performed an extensive analysis of the tort reform statutes and concluded that General Statutes § 52-572h(o) does not bar apportionment of uninsured motorist carriers. The Supreme Court reversed the trial court, reasoning that, in naming her own insurance carrier, Colonial Penn, as a defendant, the plaintiff had effectively assigned Colonial Penn to act as a surrogate for the unidentified operator who allegedly caused some or all of her injuries. Id. at 742-44.
General Statutes § 52-572h(o) states,
Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to Section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to Section 52-556.
General Statutes § 52-572h(b) states,
In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
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 . . . [H]owever . . . 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 citations omitted.) Id. at 732.
The court further reasoned that this "hybrid nature" allowed apportionment to be attributed to Colonial Penn because the plaintiff had brought an action against Colonial Penn which was subsequently settled and its purpose in the action was to act, "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 . . . 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 contact was predicated on the negligence of the phantom driver." (Internal citation omitted.) Id., at 738. "It is clear that, not only was the cause of action against Colonial Penn based on the negligence of the unidentifled driver, but that the plaintiff affirmatively alleged that the unidentified driver and the defendant caused her injuries." [Emphasis added.] Id., at 739.
The Supreme Court has, therefore, made clear that, when a plaintiff brings an action against his or her own carrier for the negligence of an unidentified driver, the other defendant or defendants may seek apportionment of that negligence against the plaintiff's carrier. However, in the situation where the plaintiff has not brought an action against his or her own carrier, there is a split of trial courts as to whether Collins is controlling.
There are two decisions of the trial court, opining that it is. See, e.g., Leitkowski v. Safeco Ins. Co., Superior Court, judicial district of New London, Docket No. 566685 (July 29, 2004, Hurley, JTR), and Luciani v. Berlingo et al., Superior Court, judicial district of New Haven, Docket No. CV 08 6001879 S (May 19, 2008, Licari, J.) [ 45 Conn. L. Rptr. 581].
The majority of the trial courts, however, have distinguished the present situation from the factual situation presented in Collins. In Santana v. Yan Tom et al., Superior Court, judicial district of New Haven, Docket No. NNI CV 07 5002545 S (November 17, 2008, Rubinow, J.) [ 46 Conn. L. Rptr. 665], the plaintiff alleged that the operators and owners of two vehicles were responsible for the subject accident. The owner and operator of one of the vehicles brought an apportionment complaint against the plaintiff's own carrier, Continental Insurance, for the negligent actions of an unidentified operator who allegedly proximately caused the accident and fled the scene.
Judge Rubinow extensively analyzed the factual distinction between Collins and Santana. In Santana, as in the present action, the plaintiff did not serve a complaint on his own uninsured motorist carrier, nor did he seek to recover damages from an unidentified driver either directly or through a surrogate by naming the unidentified driver as a defendant. Unlike the named defendant, the plaintiff did not allege that a phantom driver was responsible for the accident so that the uninsured motorist carrier was required to provide coverage for his damages and losses under a "hybrid" theory rendering the carrier liable. The named defendants had no privity of contract with the plaintiff's carrier and could not require the carrier to stand in the shoes of an unidentified driver who was not named as a defendant by the plaintiff in his complaint. As Judge Rubinow succinctly stated,
The surrogate analogy relied on by the Collins court is fundamentally inapplicable in this situation because the plaintiff has not identified a tortfeasor for whom Continental might be contractually liable. Under Collins, a defendant cannot bring an apportionment complaint against an uninsured motorist carrier when neither the carrier nor an unidentified driver has been named as a defendant in the underlying complaint: in such a case, where the plaintiff has not identified negligent conduct for which the uninsured motorist carrier may be contractually liable, § 520-72h(o) functions to preclude apportionment of liability on any basis other than negligence. Without the surrogacy hook, the defendants' apportionment claim loses its tortuous element and "hybrid" nature, thus rendering it inappropriate for apportionment. Collins v. Colonial Penn insurance Co., supra, 257 Conn. at 732-34, 778 A.2d 899.
Santana v. Yan Tom et al., supra.
Other courts with the same factual situation have concurred. See, e.g., Massaro v.Craig et al., Superior Court, judicial district of New Haven, Docket No. CV 06 5007556 S (July 27, 2009, Wilson, J.) [ 48 Conn. L. Rptr. 314]; DiPaolo v. Rocco, Superior Court, judicial district of New Haven, Docket No. CV 09 5028530 S (April 6, 2010, Wilson, J.) [ 49 Conn. L. Rptr. 591], and Mathews v. Blauvelt, Superior Court, judicial district of New London, Docket No. CV 10 6002940 (June 25, 2010, Martin, J.) [ 50 Conn. L. Rptr. 181]. See also, Ortiz v. Mocarsky, Superior Court, judicial district of Hartford, Docket No. CV 08 5016330 S (Sep. 10, 2008, Prescott, J.) [ 46 Conn. L. Rptr. 286] (Where only two vehicles are alleged by the plaintiff to be involved, Collins is inapplicable).
This court agrees with the reasoning of Judge Rubinow in Santana. The absence of a claim by the plaintiff as to an unidentified tortfeasor is a factual distinction of importance which makes the holding in Collins distinguishable.
The defendants/apportionment plaintiffs' argument that they are entitled to apportionment without privity, because they seek apportionment rather than benefits of the contract, is unavailing. The issue is not whether or not they seek benefits of the contract. Rather, the issue is whether they have standing to assert this claim. As previously set forth, the surrogacy component does not exist where the plaintiff has not identified negligent conduct for which the carrier may be liable. While the plaintiff has such standing through privity of contract to make his carrier a party, the defendants/apportionment plaintiffs do not have privity and therefore do not have standing to make the plaintiff's carrier a party, for apportionment or any other reason.
CONCLUSION
The apportionment defendant's motion to strike is granted.