Opinion
No. CV 05 4007243S
October 24, 2005
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE APPORTIONMENT COMPLAINT
FACTS
This action arises from an accident involving four motor vehicles. The plaintiff alleges on April 24, 2004, she was traveling east bound on Route 190. Joan DeMarco (DeMarco) who was also traveling eastbound crossed the double yellow lines of the highway. This caused Walter Garner (Garner), who was traveling westbound, to cross the center line of the highway and collide head-on with the plaintiff. Then, Jeffrey Farber (Farber) who was operating a motor vehicle in an easterly direction behind plaintiff's vehicle collided with the passenger side of plaintiff's vehicle. The plaintiff alleges that Farber was uninsured. She claims that she is entitled to coverage under the Uninsured Motorists Insurance Coverage provisions of her automobile insurance policy with GEICO General Insurance Company (GEICO). The plaintiff brought this lawsuit with a return date of February 15, 2005, claiming personal injuries against the defendants, Garner, DeMarco and GEICO. The plaintiff did not sue the uninsured driver, Farber.
On March 15, 2005, defendant DeMarco filed an apportionment complaint pursuant to Connecticut General Statutes § 52-102b seeking to apportion liability to the uninsured motorist, Jeffrey Farber.
Connecticut General Statute § 52-102b(a) states:
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 this action who is or may be liable pursuant to said section for a proportionate share of plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. (Emphasis supplied.)
CT Page 13351-is
The plaintiff now moves to strike defendant DeMarco's apportionment complaint, relying on the holding in Collins v. Colonial Penn Insurance Co., 257 Conn. 718 (2001) that plaintiff's uninsured motorist insurance carrier acts as a surrogate for the uninsured tortfeasor and stands in the shoes of the financially irresponsible tortfeasor. The plaintiff contends that apportionment is procedurally improper and unnecessary since GEICO and Farber are considered one "party" for apportionment purposes; therefore, Farber is already a "party," and DeMarco cannot file an apportionment claim against him.
DeMarco correctly claims there is a simple and practical difference between the instant matter and Collins v. Colonial Penn Insurance Company, in that Collins dealt with an uninsured motorist claim based on a hit and run accident. As a result, the hit and run tortfeasor was an unidentified person and could, therefore, practically never be added as a party. Whereas, Farber is identified. He is specifically named in the plaintiff's complaint as the person who struck the plaintiff's vehicle.
DeMarco also correctly points out that pursuant to General Statutes § 52-102b, "the apportionment complaint, shall be served within 120 days of the return date specified in the plaintiff's original complaint," and that if the plaintiff's uninsured motorist claim against GEICO should fail because of any number of policy-based reasons, DeMarco's statutory right to claim apportionment as to Farber would be barred by the 120-day limitation period. See, e.g., Dugan v. Vernel, LP, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 04-0183682S (July 5, 2005, Gallagher, J.) ( 39 Conn. L. Rptr. 808) and cases cited therein.
Additionally, section 52-102b provides in pertinent part: "[T]he person upon whom the apportionment complaint is served, . . . the apportionment defendant, shall be a party for all purposes . . ." The Collins court acknowledged 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." (Citation CT Page 13351-it omitted, emphasis supplied). Id., 772. GEICO, however, is not a surrogate and does not stand in the shoes of Farber for all purposes. DeMarco has rights against Farber, as a party, separate and distinct from her rights against GEICO, for instance, in the discovery context, to require Farber to provide sworn eye witness testimony, to respond to requests for admissions — and to be bound as a party thereby.
For the foregoing reasons, the motion to strike the apportionment complaint is denied. CT Page 13351-iu