Opinion
No. CV06-5002890S
October 22, 2007
MEMORANDUM OF DECISION RE REQUEST TO AMEND #110
FACTS
On November 20, 2006, the plaintiff, Sara Angelone, filed a two-count complaint against the defendants, Connecticut Oil Recycling Services, LLC (Connecticut Oil), and its employee, Ashley Alonzo. Therein, the plaintiff alleges the following facts. On November 24, 2004, while the plaintiff was a passenger in a vehicle driven by Amanda Johnston traveling westbound along the Meriden-Waterbury turnpike, their car was struck by another vehicle driven by Andrew Lukeski. This collision was the result of a chain reaction of collisions, ultimately caused by Alonzo's negligence while driving in the opposite, eastbound lane of the Meriden-Waterbury turnpike. Alonzo was operating a tanker truck owned by Connecticut Oil as its agent and employee. The plaintiff claims damages for injuries sustained in the collision.
Count one sounds in negligence; count two alleges negligence per se based on violations of General Statutes §§ 14-218a, 14-222, and 14-230.
On January 22, 2007, the defendants filed an apportionment complaint against Jukonski Truck Sales and Services, Ltd. (Jukonski), alleging that the brakes on the truck Alonzo was driving were negligently serviced by Jukonski and that the resulting defects in the brakes were what caused him to lose control of the truck. The apportionment complaint was made returnable to the court on January 30, 2007. Jukonski filed an appearance on March 28, 2007. On April 13, 2007, pursuant to General Statutes §§ 52-102a(c) and 52-102b and Practice Book §§ 10-11(b) and 10-60, the plaintiff filed a request to amend and an amended complaint, adding a third count for negligence against Jukonski. On April 20, 2007, Jukonski filed an objection to the plaintiff's request, on the grounds that the plaintiff's claim is barred by the applicable statutes of limitations and that she cannot rely on the provisions of § 10-11(b) . The plaintiff filed a reply on June 15, 2007, and Jukonski filed a surreply on July 19, 2007.
DISCUSSION
Practice Book § 10-60 provides in relevant part: "(a) Except as provided in Section 10-66, a party may amend his or her pleadings . . . (3) By filing a request for leave to file such amendment, with the amendment appended . . . If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall . . . be filed with the clerk within the time specified above and placed upon the next short calendar list.
(b) The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial . . ."
"A trial court's ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court . . . The discretion, however, is a legal discretion and is subject to review. To justify a refusal to allow an amendment, it must appear that there was some sound reason for the trial court's exercise of its discretion in that manner . . . Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial . . . In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion." (Citations omitted; internal quotation marks omitted.) Jacob v. Dometic Origo Ab, 100 Conn.App. 107, 110-11, 916 A.2d 872, cert. granted in part, 282 Conn. 922, 925 A.2d 1103 (2007).
Jukonski objects to the plaintiff's request to amend, arguing that the plaintiff has exceeded the sixty-day statute of limitations provided by § 52-102b(d) because the return date of the apportionment complaint was January 30, 2007, but the plaintiff did not file her request to amend until April 13, 2007, approximately seventy-three days later. Furthermore, Jukonski argues, Practice Book § 10-11(b) is unavailing to the plaintiff because Jukonski is an apportionment defendant, not a third-party defendant impleaded under § 10-11. The plaintiff replies that the use of the word "may" in subsection (d) of § 52-102b, as opposed to the word "shall" in subsection (a), indicates that the sixty-day limitation in subsection (d) is directory and not mandatory. Additionally, the plaintiff contends that the Supreme Court in Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007), held that equitable considerations may extend the time limitations of § 52-102b.
Section 52-102b(d) provides: "(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
Section 10-11(b) provides: "The plaintiff, within twenty days after the third party defendant appears in the action, may assert any claim against the third party defendant arising out of the transaction or occurrence which is the subject matter of the original complaint, and the third party defendant, as against such claim, shall have available to him or her all remedies available to an original defendant, including the right to assert setoffs or counterclaims against the plaintiff." (Emphasis added.) This section is identical to General Statutes § 52-102a(c).
52-102b(a) provides: "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. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h." (Emphasis added.)
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), the Connecticut Supreme Court held that § 52-102b, while implicating the court's personal jurisdiction as opposed to subject matter jurisdiction, is mandatory and not directory. Id., 33. Although the court in Lostritto was applying subsection (a), governing the service of the apportionment complaint, rather than subsection (d) as in the present case, it did not limit its holding to subsection (a) alone, stating simply: "Because we conclude that § 52-102b is a service provision, we further determine that it implicates personal jurisdiction rather than subject matter jurisdiction." Id. The Appellate Court has applied the holding in Lostritto to subsection (d) of § 52-102b in Carpenter v. Law Offices of Dressler Associates, 85 Conn.App. 655, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004). The court in Carpenter ultimately held that, because § 52-102b(d) implicates personal jurisdiction, the defendants had waived their right to challenge the court's jurisdiction by not filing a motion to dismiss within thirty days; in applying Lostritto to subsection (d), however, the decision indicates that the provisions of subsection (d) are similarly to be considered mandatory. Id., 660-61. See also Schupp v. Golba, Superior Court, judicial district of New Haven, Docket No. CV 05 4005234 (February 15, 2006, Robaina, J.) (granting motion to dismiss plaintiff's amended counts against apportionment defendant because not filed within sixty-day period); Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166813 (June 8, 2004, Matasavage, J.) (37 Conn. L. Rptr. 230) (same).
The plaintiff has filed her amended complaint outside the sixty-day period provided by § 52-102b(d). She argues, however, that Pedro v. Miller, supra, 281 Conn. 112, permits extension of the time limitations of § 52-102b in the presence of equitable considerations. While the plaintiff is correct in this assertion, Pedro involved a situation wherein the basis of the defendant's claim against the apportionment defendant did not arise until the plaintiff amended her complaint, more than sixteen months after her original complaint. Id., 119. Thus, "it was impossible for the defendants to serve the apportionment claim upon [the apportionment defendant] within the 120 day limit established by § 52-102b(a). Such a circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute." Id.
The present plaintiff, however, has averred no such circumstances or equitable factors for consideration by the court, other than that she will now be unable to collect apportionment from Jukonski. To apply the holding in Pedro to the present situation would render the time limitation in § 52-102b(d) utterly superfluous. Therefore, the plaintiff cannot rely on § 52-102b(d) to amend her complaint.
The plaintiff has also set forth § 52-102a(c) as a basis for her claims against Jukonski, arguing that she asserted the claim within twenty days of Jukonski's appearance in the case as required by the statute and the Practice Book. Jukonski argues that § 52-102a(c), and the related rule of practice; Practice Book § 10-11(b); are inapplicable because Jukonski was brought into the case under § 52-102b. Jukonski has cited no law in support of this position. An examination of the relevant case law and legislative history suggests that the two statutes, §§ 52-102a and 52-102b, while mutually exclusive in some contexts, are not so in all contexts.
Section 52-102a permits a plaintiff to "assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint . . ." The legislative history of § 52-102a suggests that subsection (c) was not meant to enlarge or inhibit the right of a plaintiff to bring a claim against a third party; the intent was simply to "adopt the federal impleader procedure for the purpose of judicial economy." Vincent v. Litchfield Farms, Inc., 21 Conn.App. 524, 527, 574 A.2d 834, cert. denied, 215 Conn. 815, 576 A.2d 546 (1990). While § 52-102b is the "exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages . . .;" General Statutes § 52-102b(f); it does not provide that it is the exclusive means for a plaintiff to state a claim against a defendant brought in pursuant to § 52-102b. Subsection (d) is one mechanism for a plaintiff to assert claims against a party not named in the original complaint, but it is not the only such mechanism. After all, the plaintiff could, at any time, simply move to add an additional party defendant pursuant to Practice Book § 9-22, amend their complaint and serve whomever they wish to add as a defendant in the action. The purpose of § 52-102a(c) was to streamline the process of a plaintiff adding counts against a new party when the third party has already been brought in by the original defendant as a third-party defendant. Vincent v. Litchfield Farms, Inc., supra, 21 Conn.App. 527.
Section 9-22 provides: "Any motion to cite in or admit new parties must comply with Section 11-1 and state briefly the grounds upon which it is made."
Section 52-102b(a) provides that "[At]he person upon whom the apportionment complaint is served . . . shall be a party for all purposes, including all purposes under section 52-572h." (Emphasis added.) This expansive language further supports the conclusion that subsection (d) is not the exclusive means by which a plaintiff may assert direct claims against an apportionment defendant. Tellingly, while there are obvious differences between an "apportionment defendant" and a "third party defendant," many judicial opinions have used the words interchangeably. See, e.g., Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 788-89, 756 A.2d 237 (2000) ("[t]he defendant . . . appeals from the judgment of the trial court striking its apportionment complaint against the third party defendant . . .") (emphasis added); Sabino v. Sharma, Superior Court, judicial district of New Haven at Meriden, Docket CV 03 0285825 (September 13, 2004, Tanzer, J.) ("[c]onstruing the allegations of the cross claim in the light most favorable to the third-party defendants, the question for this court then becomes whether, if these allegations were proven, a reasonable juror could find that the apportionment defendants had met their burden . . ." (emphasis added); Shelby Ins. Co. v. Castellon, Superior Court, judicial district of New Haven, Docket No. CV 98 0416779 (May 26, 2000, Devlin, J.) (referring to the impleaded party as the "apportionment defendant/third party defendant"); Simon v. My Bread Baking Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0165440 (October 13, 1999, D'Andrea, J.) (the defendant filed an apportionment complaint against the third party defendant . . .").
Furthermore, the legislative history of § 52-102b suggests that the fundamental goals of the apportionment statute were twofold: first, to provide a mechanism by which defendants could cite in additional defendants for apportionment under § 52-572h; second, to afford a fair opportunity for both the original plaintiff and defendant to assert claims against such third party, in light of the possible statute of limitations problems that would arise by either the plaintiff or defendant filing their claim at the "eleventh hour" and preventing the opposing party from having sufficient time to file their own claim. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1995 Sess., pp. 1713-15. Nothing in the legislative history indicates a direct conflict with § 52-102a, or that subsection (d) was to be the exclusive means by which a plaintiff could assert a claim against an apportionment defendant.
Certain comments do express concern over a possible confusion between defendants impleaded pursuant to 52-102a and those apportioned in under the amended apportionment statute. See Conn. Joint Standing Committee Hearings, supra, pp. 1736-37, 2019-20. These issues, however, arise from the distinction between a third-party defendant who would be liable directly to the defendant (if impleaded under § 52-102a) or for a proportionate share of the plaintiff's damages (if apportioned in under § 52-102b); they do not concern the ability of the plaintiff to assert claims against the newly added defendant. A plaintiff doing so would be in the same position with respect to the new defendant in either situation.
Rather, the sole purpose of subsection (d) appears to be to circumvent the statute of limitations for a plaintiff who may not have known about the possible liability of a third party until the defendant files its apportionment complaint, after the limitations period of the underlying cause of action had run. In the absence of clear authority to the contrary, the pleading provisions in §§ 52-102a(c) and 52-102b(d) need not be read as mutually exclusive.
Furthermore, the public hearings on what became § 52-102b discussed the confusion in the courts over how a defendant brings in an apportionment defendant for the purposes of apportionment under § 52-572h. E.g., Conn. Joint Standing Committee Hearings, supra, pp. 1752, 2021-22. Section 52-102b merely provides a procedural mechanism by which a defendant may advantage himself of the apportionment provisions of § 52-572h; there is no indication that the right of a plaintiff to assert direct claims against a third-party defendant was in any way diminished.
The plaintiff has complied with the provisions of § 52-102a(c) by amending her complaint to assert a claim against Jukonski within twenty days of its appearance in the case. Because Jukonski is already a party to the action, the plaintiff's amendment will not cause unreasonable delay. Moreover, because the plaintiff is proceeding under § 52-102a and not § 52-102b, Jukonski "[has] available to [it] all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff;" General Statutes § 52-102a(c); and allowing the amendment will not cause substantial injustice to Jukonski. Given the traditional liberality of the court in permitting amendments; Jacob v. Dometic Origo Ab, supra, 100 Conn.App. 111; it is held that Jukonski's objection to the plaintiff's request to amend is overruled.