Opinion
DBDCV196029330S
07-17-2019
Edison ANDRADE et al. v. Larry L. SHARP et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Plaintiffs Edison Andrade and Guadalupe Andrade have moved to strike the apportionment complaint filed against Edison Andrade ("Counterclaim Defendant") by defendants Larry Sharp and AM Rizzo Electrical Contractors ("Counterclaim Plaintiffs"). For the reasons stated below, the motion is denied.
The Standards for Deciding a Motion to Strike
"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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). "If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349 (2013).
The Apportionment Complaint States a Claim Against the Apportionment Defendant
This case involves an automobile accident in which plaintiffs allege defendant Larry Sharp failed to stop for a red light and collided with plaintiffs’ car driven by Edison Andrade in which Guadalupe Andrade was passenger. In separate counts each plaintiff has alleged a negligence claim against Larry Sharp and against his employer, Rizzo Electrical Contractors, which owned the car he was driving. Guadalupe Andrade has not alleged a claim against Edison Andrade. In the apportionment complaint the Apportionment Plaintiffs have alleged that Edison Andrade ran a red light and his negligence caused the injuries sustained by his passenger, Guadalupe Andrade, in whole or in part, and any award in favor of her against defendants should be apportioned with Edison Andrade.
Plaintiffs urge the Court to follow the so-called "Majority Rule" that holds a person who is already party to a lawsuit cannot be made an apportionment defendant. See e.g., Arevalo v. Pohlot, 2015 WL 1867057 *4 (Conn.Super. 2015) (Truglia, J.) (co-defendant’s apportionment complaint stricken); Roklen v. Presnell, 2006 WL 829521 *4 (Conn.Super. 2006) (Taylor, J.) (cross claim against co-defendant stricken); Evans v. Spinelli, 2003 WL 536778 *3 (Conn.Super. 2003) (Wiese, J.) (apportionment counterclaim stricken). The majority rule is based on the plain language of C.G.S. § 52-102b(a) that "[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 the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff’s damages in which case the demand for relief shall seek an apportionment of liability." (Emphasis added.) Courts that adopted the majority rule also point to the legislative history of C.G.S. § 52-102b in which Representative Lawlor, a proponent of the bill, responded in the affirmative to a question about whether the term "party" in that section refers to a party in the lawsuit: "Yes. In fact, it would mean anyone who is actually a party to the lawsuit." DiMaggio v. Tuck, 2004 WL 503793 *2 (Conn.Super. 2004) (Wiese, J.); Roklen, 2006 WL 829521 *3. Courts that adopt the majority rule note that under C.G.S. § 52-572h(c) any award will be apportioned among those parties whose negligence is found to have proximately caused the damages awarded. See Roklen, 2006 WL 829521 *3.
"Seeking a clarification on whether the term ‘party’ as used in the statute refers to someone who is a party to the lawsuit, Representative Radcliffe asked: ‘My understanding is that the bill uses the word ‘parties’ and the word ‘party’ is used for purposes of apportionment. Is it the proponent’s understanding that ‘party’ means party to the lawsuit ... 38 H.R. Proc., pt. 9, 1995 Sess., p. 3272. Representative Lawlor, one of the proponents of the bill replied: ‘Yes. In fact, it would mean anyone who is actually a party to the lawsuit.’ [Emphasis added.] Id. "Marconi Construction Co. v. D’Addeo’s, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 551848 (January 28, 1998) (Wagner, J.T.R.).
" ‘The defendant ... is not left without a remedy. Since General Statutes § 52-572h(c) provides that all parties against whom recovery is permitted are liable only for their proportionate share of damages, and because [the proposed apportionment defendant] is a party, his percentage of negligence will be considered by the jury.’ Desmosthene v. Spignolio, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0186972 (July 24, 2002, Lewis, J.)." Roklen, 2006 WL 829521 *3.
The so-called "Minority View" takes the position that C.G.S. § 52-102b only applies to apportionment with new parties and has no application to apportionment with persons already party to the lawsuit. See e.g., Sanon v. Paulin, 2016 WL 2602641 *2 (Conn.Super. 2016) (Wenzel, J.). Courts adopting the minority view conclude that C.G.S. § 52-102b, legislation intended to broaden rights to apportionment to non-parties, cannot be interpreted to restrict apportionment claims by a party to the lawsuit. See Phelan v. Socha, 2018 WL 4839662 *4 (Conn.Super. 2018) (Stevens, J.).
In Phelan, 2018 WL 4839662 *4, Judge Stevens stated that an apportionment counterclaim would be permissible under C.G.S. § 52-572h(c), the statute that abandoned the common-law rule against contribution among tortfeasors, under the circumstances here where the driver of a vehicle whose passenger was injured has sued defendant but the passenger has not sued his or her own driver: "Consequently, as compared to the common law, a defendant may now acquire an apportionment analysis based on the allegations of a plaintiff’s complaint and the special defense of contributory negligence asserted by the defendant. Additionally, under § 52-572h(c), a defendant may also assert an apportionment claim against another party to the action whose negligence may have contributed to the plaintiff’s damages, but against whom the plaintiff has not asserted a claim. In the present case, Socha may, therefore, assert a counterclaim for apportionment against Bates, the driver of Phelan’s vehicle, against whom Phelan has not asserted a claim. Such an apportionment claim by Socha against Bates is authorized and contemplated by the unambiguous language of § 52-572h(c) providing that if the claimant’s damages ‘are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable’ damages. In short, ‘§ 52-572h created the right for a defendant to apportion liability to any party to the action ...’ Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 24, 848 A.2d 418 (2004)."
In Phelan Judge Stevens granted the motion to strike the counterclaim premised on C.G.S. § 52-102b, that "applies only to the filing of an apportionment complaint against individuals who are not parties to the action," but signaled a substitute counterclaim would not be stricken. 2018 WL 4839662 *6.
Courts adopting the minority rule frequently cite the plain language of C.G.S. § 52-102b from which they conclude "this provision applies only to bringing new parties into a lawsuit for purposes of apportioning liability. It does not apply to the assertion of apportionment claims against existing parties." Torres v. Begic, 2000 WL 872456 *3 (Conn.Super. 2000) (Levin, J.). Courts also cite the silence in the legislative history as to how an apportionment claim is to be asserted against another party. See Torres, 2000 WL 872456 *3; Blazer v. Gil, 2007 WL 1977762 *3-4 (Conn.Super. 2007) (Tobin, J.). See generally O&G Indus., Inc. v. Litchfield Ins. Group, Inc., 2013 WL 3871341 *17 (Conn.Super. 2013) (Pickard, J.) (cataloging minority view cases).
Judges on both sides of the issue have noted that the majority view leaves a "gap" in the right to fair apportionment if the allegedly negligent operator of the vehicle withdrew his or her claim against defendant and was not a party to the lawsuit at the time of apportionment of a damages award to the passenger; the provisions for settled or released persons in C.G.S. § 52-572h(n) would not apply to the withdrawn party. See Sanon, 2016 WL 2602641 *3, discussing Coelho v. Mattiaccio, 2005 WL 1971236 *2-3 (Conn.Super. 2005) (Radcliffe, J.), and Arevalo, 2015 WL 1867057 *4. Judge Truglia in Arevalo determined the gap required a legislative fix, 2015 WL 1867057 *4; Judge Radcliffe in Coehlo avoided the gap by adopting the minority rule, 2005 WL 1971236 *2-3.
This Court is persuaded the minority view is the preferable interpretation of the apportionment statutes. It is evident from the plain language of C.G.S. § 52-102b that it was intended to create a right to apportion damages with new parties and has no application to existing parties. Had the Legislature intended to restrict apportionment among parties it would have done so with an express restriction, which is not found in C.G.S. § 52-102b and is inconsistent with the provision in C.G.S. § 52-572h(c) that limits liability "to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages ..." The majority rule opens a gap that would allow a withdrawn plaintiff to escape apportionment for his or her negligence in contravention of the policies underlying both apportionment statutes. See Benway v. Belmont, 2013 WL 1715718 *3 (Conn.Super. 2013) (Roche, J.); Baez v. Toledo, 2012 WL 3872486 *3 (Conn.Super. 2012) (Markle, J.).
" ‘[W]hen two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results ... In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ (Citation omitted; internal quotation marks omitted.) Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). It is clear that ‘[t]he purpose of § 52-102b is to effectuate a sharing of the responsibility between potential tortfeasors.’ Hilarion v. Yank, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 106006792 (September 9, 2011, Dooley, J.) (52 Conn.L.Rptr. 574, 576). By adopting the minority view, this court ensures that the purpose of § 52-102b is effectuated and a reasonable result is reached." Baez, 2012 WL 3872486 *3.
The Court also agrees with those judges who have analyzed the claims of driver and passenger as functionally separate actions in which plaintiffs are not parties to each other’s claims for purposes of apportionment. See Rivera v. American Indus., Inc., 2013 WL 6510871 *4 (Conn.Super. 2013) (Nazarro, J.); Prete v. Borelli, 2012 WL 2334022 *2 (Conn.Super. 2012) (Gold, J.); Orengo v. Barksdale, 2010 WL 760458 *1 (Conn.Super. 2010) (Levin, J.); Sharif v. Peck, 2001 WL 358867 *1 (Conn.Super. 2001) (Blue, J.). That plaintiffs decided to combine their claims in separate counts in the same action as opposed to bringing separate actions should not insulate Edison Andrade from the consequences of any negligence he may have committed that caused injury to Guadalupe Andrade.
The motion to strike the apportionment complaint is denied.