Opinion
No. CV11-6017514 S
July 21, 2011
MEMORANDUM OF DECISION
The plaintiffs filed this action relating to a vehicle accident on December 13, 2008. The defendant Guy Michaels was operating a vehicle which collided with the rear of the plaintiff's vehicle which contained the plaintiff and six passengers.
The answer of the defendant contained a counterclaim for apportionment relating to the plaintiff and seeking the percentage of plaintiff's negligence as attributable to his percentage of liability related to the passengers in plaintiff's vehicle.
The plaintiff filed a motion to strike the Counterclaim for Apportionment by defendants.
General Statutes § 52-102b provides in relevant part: "(a) 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 . . . 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 . . . (f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionment share of the plaintiff's damages as a party to the action." (Emphasis added.) "General Statutes § 52-102b(a) is the procedural vehicle by which a defendant in a negligence action may bring in a party for apportionment of liability purposes." Henriques v. Magnavice, 59 Conn.App. 333, 337, 757 A.2d 627 (2000).
A split of authority exists at the trial court level on the issue raised by this motion. DiMaggio v. Tuck, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285298 (February 26, 2004, Wiese, J.) ( 36 Conn. L. Rptr. 579). "The majority of Superior Court decisions hold that General Statutes § 52-102b precludes a cross claim for apportionment against someone who is already a party to the action."fn2 Ayalon v. Breakstone, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0078878 (December 5, 2003, Cremins, J.), citing Lackard v. Vandecar, Superior Court, judicial district of Hartford, Docket No. CV 01 0806605 (January 7, 2002, Rittenband, J.T.R.); Rubbak v. Thompson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180009 (April 6, 2001, Lewis, J.) ( 29 Conn. L. Rptr. 316); Apicelli v. Indian Nations, Superior Court, judicial district of New London at Norwich, Docket No. 0119305 (December 11, 2000, Martin, J.).fn3
The reasoning of the majority view is that the purpose of apportionment under General Statutes § 52-102b(a) "is to allow a defendant to bring a non-party into the case for apportionment purposes. The logic underlying this restriction is evident in the language of [§]52-102b(c), which provides that notice of apportionment is unnecessary where the person against whom apportionment is sought was previously a party to the action. The apportionment claim under § 52-102b is clearly designed to provide the court with notice that the defendant may not be wholly liable." (Emphasis added.) Pouliot v. Paul Arpin Van Lines, Inc., 303 F.Sup.2d 135, 138 (D.Conn. 2004) (holding apportionment cross claim precluded by § 52-102b.
The majority view has previously been adopted by the court in Roklen v. Presnell, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0287569 (March 15, 2006, Taylor, J.) ( 40 Conn. L. Rptr. 883). Generally, the decisions of the courts adopting this view of the apportionment pleading process do so on the basis of the plain language and legislative history of § 52-102b, as well as the fact that apportionment is already available with respect to parties in actions based upon negligence under General Statutes § 52-572h. Id. The problem with this rationale, according to the defendants, is that their apportionment complaint must be filed within 120 days; otherwise they will be foreclosed from pursing apportionment against the plaintiff, should he choose to withdraw his action after the 120-day limitation on apportionment complaints. This scenario, the defendants contend, would thwart the policy of Tort Reform because it results in the elimination of individuals who may be held liable for apportionment purposes and would represent a return, although incremental, to joint and several liability.
The defendants therefore challenge the assumption that, by granting the plaintiffs' motion to strike, "[t]he 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." Demosthene v. Spignolio, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0186972 (July 24, 2002, Lewis, J.).
Recent Supreme Court decisions concerning apportionment and the application of General Statutes § 52-102b must be taken into consideration by the court. For instance, in Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007), the Supreme Court specifically allowed courts to consider equitable extensions of the mandatory 120-day limit for apportionment complaints under General Statutes § 52-102b. Reflecting upon Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), the court reiterated that "§ 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty . . . Allowing for exceptions to the 120 day limit for equitable reasons is consistent with that goal. The concept of `reasonable' certainty embodies the concept that the ideal of predictability cannot be so rigidly adhered to that the apportionment system must tolerate inequities that are easily avoided by allowing exceptions where equity demands them." (Citation omitted; emphasis in original; internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 121, 914 A.2d 524 (2007).
Thus, in Pedro, the court found an equitable basis for tolling the statutory mandate of 120 days where the plaintiff alleged an injury at the hands of her physician during treatment for other injuries arising from an accident involving the defendants, which treatment had occurred more than sixteen months after the original return date. The court found that the legal basis for an apportionment complaint against the physician did not arise until "long after the 120 day limit already had passed. Consequently, it was impossible for the defendants to serve the apportionment claim upon [the physician] within the 120-day limit established by § 52-102b(a)." Pedro v. Miller, supra, 281 Conn. 119.
The holding of Pedro does not specifically address the question of a party's option to bring an apportionment complaint against someone who was once a party to the litigation, but who has settled or has been withdrawn from the action. As Pedro may not satisfactorily ensure that an equitable basis for tolling the 120-day rule will be found in all cases, an apportionment plaintiff may therefore be motivated to file apportionment complaints against all other parties as a standard practice, to ensure the opportunity of apportioning their liability in the event a party is released after 120 days have passed. This approach, however, would result in a costly and largely unnecessary preemptive practice. Following the logic of Pedro, the filing of a withdrawal of a complaint may be an equitable reason to toll the 120-day rule where liability has been disputed.
The Supreme Court in the case of Viera v. Cohen, 283 Conn. 412, 435, 927 A.2d 843 (2007) partially addresses the specific issue of whether an apportionment complaint may be brought against a former party. In Viera, the estate of an injured child brought an action against an obstetrician to recover damages for injuries sustained during childbirth. The Supreme Court affirmed a ruling of the trial court that precluded the defendant from pursuing an apportionment complaint against another party, against whom the plaintiff had withdrawn its case shortly before the trial had commenced.
There are two important and relevant issues addressed by the court in Viera. First, Justice Katz clearly states in the majority opinion that, with respect to General Statutes § 52-102b, "under the procedural scheme prescribed by the legislature, the defendant could not file an apportionment complaint against [another defendant] while he was a party." (Emphasis added.) Viera v. Cohen, supra, 283 Conn. 443. This view is similarly reflected in Justice Palmer's dissenting opinion in Viera, where he also clearly states that "McNamee could not have filed an apportionment complaint against Cohen while Cohen was still a defendant because § 52-102b applies only to nonparties." (Emphasis added.) Viera v. Cohen, supra, 283 Conn. 467.
Although these statements are not within the specific holding of the case, they are critical elements of the majority and minority opinions.
The specific holding in Viera, relevant to the present case, is that an apportionment complaint may not be brought against a party who has been released without consideration. The court found that, under General Statutes § 52-572h(n), fn4 a party to whom apportionment applies is limited to instances involving "[a] release, settlement or similar agreement," which the court interpreted to mean a release involving consideration. Id. By implication, the court in Viera would allow apportionment complaints to be brought against parties who had settled for consideration and had withdrawn. This conclusion is further supported by the language of General Statutes § 52-102b(c)fn5. In addition to excluding immune persons from apportionment, § 52-102b(c) requires defendants to provide notice of claims against persons who have settled with the plaintiff who were not made parties to the action, but dispenses with this notice requirement if a "person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action." Presumably the notice of injuries proximately caused by released parties, otherwise required to be alleged, is met by the originally submitted pleadings in the case.
Although the holding in Viera empowers plaintiffs to be the sole arbiters of who should be considered liable among the original parties in a lawsuit, apportionment appears to remain available against parties who have settled their claims for value. Read together with Pedro, such an apportionment complaint may properly be brought more than 120 days after the return date of the complaint has passed, so long as an equitable reason has been established.
For these reasons, the motion to strike the defendants' counterclaim is granted, but without prejudice6. In the event of a withdrawal by plaintiff, the court may consider appropriate equitable reasons for allowing an apportionment complaint against him at that time, to determine whether the circumstances are similar to the exception found to the 120-day rule by the court in Pedro. However, the defendants' apportionment counterclaim against plaintiff is denied. Viera v. Cohen, supra, 283 Conn. 443.