Opinion
HHDCV166071005S
09-07-2018
Susan AHRENS v. HARTFORD FLORISTS’ SUPPLY, INC. et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, JUDGE.
Before the court are the motions to dismiss of the defendants and third-party defendants Pennock Company, Pennock Floral, and Pennock Company d/b/a Pennock Floral (collectively, "Pennock"), and the defendant and third-party defendant Fall River Florist Supply Corporation ("FRFS").
The following facts and procedural history are relevant to this decision. This action was commenced on August 29, 2016 by the plaintiff, Susan Ahrens, against defendants Hartford Florists’ Supply, Inc. ("HFS") and Delaware Valley Floral Group, Inc. ("DVFG"). The January 10, 2017 revised complaint against HFS and DVFG alleges the following facts. On September 12, 2013, the plaintiff handled flowers she ordered from A Victorian Garden Flowers & Gifts, LLC, which were put into the stream of commerce by HFS and DVFG. As a result of handling the flowers and later touching her eye, the plaintiff developed infectious keratitis, which caused severe damage to her eye. The infectious keratitis was caused by Paecilomyces, a biological insecticide used to control pests in cut flowers.
The plaintiff filed a separate action against A Victorian Garden Flowers & Gifts, LLC, Docket No. CV-166071005-S, which was consolidated with the present action on October 19, 2016.
On September 1, 2017, DVFG served a third-party complaint on FRFS and Pennock, alleging that they sold floral supplies to A Victorian Garden Flowers & Gifts, LLC during the time period set forth in the plaintiff’s revised complaint. DVFG alleges that to the extent the plaintiff suffered injuries, FRFS and Pennock are liable for a proportionate share of the damages pursuant to General Statutes § § 52-572h and 52-572o . On November 20, 2017, the plaintiff filed an amended revised complaint, which added FRFS and Pennock as defendants. On January 30, 2018, DVFG filed a motion to implead pursuant to Practice Book § 10-11 and General Statutes § 52-102a, which was granted on February 11, 2018. On February 23, 2018, the plaintiff filed an amended revised complaint, which again named FRFS and Pennock as defendants.
On March 14 and March 26, 2018, respectively, Pennock and FRFS filed motions to dismiss DVFG’s third-party complaint against them. On March 26 and March 29, 2018, respectively, FRFS and Pennock filed motions to dismiss the counts of plaintiff’s amended revised complaint addressed to them. The central basis of each of these motions to dismiss is that DVFG failed to receive permission to implead Pennock and FRFS under § 52-102abefore serving its third-party complaint within the one-year limitations period of § 52-577a(b). Therefore, Pennock and FRFS argue that they are not proper parties to this case, and the claims against them should be dismissed. For the reasons set forth below, this court agrees.
Ordinarily, a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[when] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
This court agrees with the line of decisions holding that the statute of limitations in § 52-577a(b) can properly be raised in a motion to dismiss. See, e.g., Iodice v. Ward Cedar Log Homes, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-12-6013844-S (2015 WL 6144095) (September 17, 2015, Roraback, J.) (reasoning that § 52-577a(b) "implicates whether the court can exercise personal jurisdiction over the putative third-party defendant [and] [a] failure to comply with this requirement is therefore appropriately raised by way of a motion to dismiss"); Barringer v. Whole Foods Market, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-6005918 (July 14, 2011, Sheldon, J.) (52 Conn.L.Rptr. 262) (reasoning that "[i]f the court finds that [the defendant] failed to serve the third-party complaint ... within the time prescribed by § 52-577a(b), such a defect constitutes a defect in process, which is properly raised by a motion to dismiss"); Garrity v. First and Last Tavern, Inc., Superior Court, judicial district of Middlesex, Docket No. CV-10-6002820 (2012 WL 1511401) (April 10, 2012, Holzberg, J.) (reasoning that "the court may adjudicate the motion to dismiss, because, consistent with the court’s analysis in Barringer ... judicial economy and jurisdictional concerns argue in favor of resolving this issue in a timely fashion").
The central issue before this court is the proper procedure for impleading a third party in a product liability action, and specifically, whether strict compliance with both § § 52-102a and 52-577a(b) is required. Section 52-102a(a) provides the procedure for a defendant to implead a third party, and provides: "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." Section 52-577a(b) is the statute of limitations in products liability actions, and provides: "In any such [product liability] action, a product seller may implead any third party who is or may be liable for all or part of the claimant’s claim, if such third-party defendant is served with the third-party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court." In other words, § 52-102a mandates that the defendant receive the court’s permission before serving a third-party complaint, and § 52-577 mandates that such complaint be served within one year of the return date.
Although there exists no appellate authority directly on point, our Supreme Court addressed this issue as dicta in Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989). In Malerba, a product liability action, there was no question whether the defendant had timely moved to implead or serve the third-party complaint. Instead, the plaintiff and third-party defendant filed motions to strike arguing that claims for third-party contribution in a product liability action must meet the requirements of General Statutes § 52-572o(e), i.e., that there be some disposition of the original claim as a precondition to the third-party claim for contribution. The court held that the trial court erred in granting the motions to strike, reasoning in relevant part that § 52-572o(e) must be harmonized with § 52-102a. The court noted that "General Statutes § 52-102a is similar in content to General Statutes § 52-577a(b) which is the statute of limitations in product liability actions ... While § 52-577a(b) omits the words ‘to him’ which are found in § 52-102a, the failure to identify specifically to whom the impleaded third party may be liable does not preclude parallel treatment of the two statutes in view of their otherwise similar language." Id., 194. Therefore, "§ § 52-102a and 52-577a(b) implicitly authorize the inclusion of such a claim [for contribution from a third party] in the original product liability action without any preconditions." Id., 195. The court concluded that § 52-572o(e) only applied to independent contribution actions, not in actions where the defendant impleads a third party.
The Superior Court addressed this issue head on in Adgers v. Hines Sudden Service, Superior Court, judicial district of Hartford, Docket No. CV-98-0577380 (1999 WL 794059) (September 20, 1999, Teller, J.) . In Adgers, the plaintiff brought an action for injuries sustained when he allegedly bit into a foreign object in baked beans purchased from the defendant. Less than a year after the action was commenced, the defendant filed a third-party complaint against a third-party defendant distributer of the beans, alleging that it was liable under § 52-572m et seq. The third-party defendant moved to dismiss, arguing, as here, that the defendant did not comply with the procedural requirements of § 52-102a before serving the third-party complaint. The court granted the motion to dismiss, noting that our Supreme Court in Malerba "construed § § 52-102a(a) and 52-577a(b)together as providing the authority and procedure by which to implead third parties in a product liability action." (Emphasis original.) Id., *3. The court therefore concluded that "consistent with the Supreme Court’s treatment of General Statutes § 52-102a and § 52-577a(b) in Malerba ... the court concludes that both statutes must be construed together and given effect. Therefore, a defendant who wishes to assert a claim against a third party in a product liability action must first move for permission to implead under General Statutes § 52-102a." Id.
This court agrees with the reasoning in Malerba and Adgers, and finds that strict compliance with both § § 52-102a and 52-577a(b) is required when impleading a third party into a products liability case. Therefore, DVFG was required to seek and obtain permission under § 52-102a to implead third parties before filing its third-party complaint, and serve such complaint within the one-year time limitation of § 52-577a(b). DVFG failed to file a motion under § 52-102a before serving its third-party complaint, and by the time it eventually filed such a motion on January 30, 2018, the limitations period under § 52-577a(b) had expired. Because FRFS and Pennock were not properly brought into the action, the plaintiff’s amended revised complaint against them similarly fails.
The plaintiff did not object to any of the motions including the dismissal of its complaints, Entries No.s 131 and 140, against Pennock and FRFS in the event of the dismissal of the third-party complaints.
For the foregoing reasons, the motions to dismiss, Entry No. 141, Pennock’s motion to dismiss DVFG’s third-party complaint (Entry No. 125); Entry No. 148, FRFS’ motion to dismiss the plaintiff’s amended revised complaints (Entries No.s 131 and 140); FRFS’ motion to dismiss DVFG’s Third-Party Complaint (Entry No. 125), and Entry No. 152, Pennock’s motion to dismiss the plaintiff’s amended revised complaints (Entries Nos. 131 and 140), are granted.