Opinion
CV186045529S
12-10-2019
Tuyen Bergenholtz v. Mohamed Taroua
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wiese, Peter E., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (NO. 109.00) & PLAINTIFF’S REQUEST FOR LEAVE TO AMEND COMPLAINT (NO. 110)
PETER EMMETT WIESE, JUDGE
I.
PROCEDURAL HISTORY
This negligence action arises out of an alleged motor vehicle accident that occurred on May 23, 2016. On June 18, 2018, the plaintiff, Tuyen Bergenholtz, filed a single-count complaint alleging negligence against the defendant, Mohamed Tauroua. Specifically, the operative complaint alleges that the defendant, who was both the owner and the operator of a motor vehicle at the time of the accident, negligently collided with the plaintiff’s vehicle, causing the plaintiff’s injuries.
On January 31, 2019, the defendant filed a motion for summary judgment along with a memorandum of law and the police accident report. (No. 109.) The defendant moves for summary judgment on the ground that there is no genuine issue of material fact that he was not the operator of the vehicle that collided with the plaintiff’s vehicle, as alleged in the plaintiff’s complaint. On April 18, 2019, the plaintiff filed an objection to the defendant’s motion, in which she admits, however, that in her complaint, she "misnames the operator of said vehicle as Mohamed Tauroua instead of his son, Marwane Taroua." (No. 111.) That same day, the plaintiff filed a request to amend her complaint in an effort to correct the defect of mistakenly misnaming the operator of the vehicle. (No. 110.) The proposed amended complaint now contains two counts: (1) negligence as against Marwane Taroua, the defendant’s son, for operating the vehicle, which was owned by the defendant, and negligently colliding into the plaintiff, and (2) vicarious liability as against the defendant pursuant to the family car doctrine and business purpose statutes, General Statutes § § 52-182 and 52-183. (No. 110.) In response, on April 26, 2019, the defendant objected to the plaintiff’s request to amend on the ground that the plaintiff’s proposed amended complaint is attempting to assert an entirely new claim against the defendant and the statute of limitations has already run. (No. 112.)
General Statutes § 52-182 provides in relevant part: "Proof that the operator of a motor vehicle ... was the ... son ... of the owner shall raise a presumption that such motor vehicle ... was being operated as a family car ... within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption." General Statutes § 52-183 provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
The court heard oral argument on both matters- the defendant’s motion for summary judgment and the plaintiff’s request to amend at short calendar on September 16, 2019. After oral argument, pursuant to the court’s request, the defendant filed a supplement to his objection to the plaintiff’s request to amend and in further support of his motion for summary judgment, which included an attached trial court decision on which the defendant relies. (No. 115.)
II.
DISCUSSION
A. Parties’ Arguments
The defendant moves for summary judgment on the ground that there is no genuine issue of material fact that although he is the owner of the vehicle involved in the motor vehicle collision with the plaintiff, he was not the operator of the vehicle at the time of the accident, as alleged in the plaintiff’s initial complaint. The defendant has submitted the police report as evidence and argues that the police report confirms that the defendant’s son, Marwane Taroua, was indeed the operator of the vehicle.
In response, the plaintiff concedes that the defendant’s son was in fact the operator of the vehicle and that she accidentally misnamed the operator as the defendant. The plaintiff points out that both the defendant and his son share the same last name, share the same first initial, and reside at the same address. The plaintiff further argues that pursuant to General Statutes § 52-128, she should be permitted to "amend any defect, mistake, or informality in the ... complaint ... or insert new counts in the complaint ... which might have been originally inserted therein ..."
In objecting to the plaintiff’s request to cure the defect by amending the complaint, the defendant counters that the plaintiff is attempting to start an entirely new action and that the applicable statute of limitations has already expired. The defendant argues that the plaintiff should not be permitted to circumvent the statute of limitations via an amended complaint.
Although the defendant did not explicitly state so in his pleadings, his counsel seemed to confirm at oral argument that the defendant’s argument is rooted in the relation back doctrine, both with regard to the new vicarious liability claim against the defendant as well as the amended negligence claim against the defendant’s son, who was not named in the original complaint.
B. Motion for Summary Judgment (No. 109.00)- Applicable Law & Analysis
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Graham v. Commissioner of Transportation, 330 Conn. 400, 414-15, 195 A.3d 664 (2018). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which ... entitle him [or her] to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 191, 177 A.3d 1128 (2018).
In the present case, there is no genuine issue of material fact that the defendant was not the operator of the vehicle at the time of the motor vehicle collision with the plaintiff. Accordingly, the defendant’s motion for summary judgment is granted.
C. Request for Leave to Amend Complaint (No. 110)
i. Applicable Law
In Briere v. Greater Hartford Orthopedic Group, P.C., 325 Conn. 198, 207, 157 A.3d 70 (2017) (Briere), our Supreme Court held, "The relation back doctrine has been well established by this court ... [A] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ... [But] [i]f a new cause of action is alleged in an amended complaint ... it will [speak] as of the date when it was filed ... A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action." (Citation omitted; emphasis omitted; internal quotation marks omitted.); see also Miller v. Fishman, 102 Conn.App. 286, 298, 925 A.2d 441 (2007) ("an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently"), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008) (Miller); Palazzo v. Delrose, 91 Conn.App. 222, 226, 880 A.2d 169 ("[w]hile an amendment that corrects a minor defect relates back to the date of the original complaint, one stating a separate cause of action is barred by the statute of limitations" [internal quotation marks omitted] ), cert. denied, 276 Conn. 912, 886 A.2d 426 (2005) (Palazzo).
In Briere, the court rejected a bright line rule and instead provided broad guidelines in the form of a two-step, case-by-case inquiry. "If new allegations state a set of facts that contradict the original cause of action ... then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading. But an absence of a direct contradiction must not end the trial court’s inquiry. The trial court must still determine whether the new allegations support and amplify the original cause of action or state a new cause of action entirely." Briere, supra, 325 Conn. 211.
"Relevant factors for this inquiry include, but are not limited to, whether the original and the new allegations involve the same actor or actors, allege events that occurred during the same period of time, occurred at the same location, resulted in the same injury, allege substantially similar types of behavior, and require the same types of evidence and experts." Briere, supra, 325 Conn. 211.
Furthermore, "[n]egligence has been found to be a separate cause of action, distinct from an action for vicarious liability." Chen v. Gutierrez, Superior Court, judicial district of Hartford, Docket No. CV-07-5009030 (November 9, 2007, Tanzer, J.) ( 44 Conn.L.Rptr. 511, 512) (Chen) ; see also Carrico v. Mill Rock Leasing, LLC, Superior Court, judicial district of New London, Docket No. CV-17-6029022 (May 18, 2018, Calmar, J.) (66 Conn.L.Rptr. 410, 411) (same); Miller v. Natchaug Hospital, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 126723 (September 3, 2004, Hurley, J.T.R.) (37 Conn.L.Rptr. 873, 875) ("The facts that establish the existence of the plaintiff’s legal right against [the defendant] are clearly not the same in the two complaints ... The new allegations of negligence in the revised complaint do not merely expand or amplify the original [vicarious liability] claim filed against [the defendant]. Rather, it alerts them to a new theory of liability").
Superior courts have affirmed this conclusion in the context of actions arising from motor vehicle collisions. See, e.g., Richitelli v. Falcioni, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-17-6022778-S (December 4, 2018, Stevens, J.) (where initial complaint alleged that defendant who owned motor vehicle was vicariously liable, and amended complaint alleged that defendant himself negligently operated his own vehicle, court held that "[t]hese two theories of liability implicate different causes of action" and relation back doctrine did not apply); Chen, supra, Superior Court, Docket No. CV-07-5009030 (amendments did not relate back to original complaint because allegations involved different set of facts where plaintiff added specific acts of negligence to count originally only claiming vicarious liability against defendant under family car doctrine); Kolek v. Welch Enterprises, Inc., Superior Court, judicial district of Hartford, Docket No. CV-98-0584406-S (June 18, 2002, Beach, J.) (32 Conn.L.Rptr. 459) (same).
ii. Analysis
In the present case, the original complaint and proposed amended complaint implicate two different causes of action and, therefore, the proposed amendments do not relate back and are barred by the statute of limitations. See Chen, supra, Superior Court, Docket No. CV-07-5009030 (negligence and vicarious liability are separate and distinct causes of action). The alleged roles and conduct of the actors allegedly causing the plaintiff’s injuries have changed significantly. Instead of merely expanding on what was initially alleged in support of a sole negligence claim against the defendant, the proposed amended complaint presents an entirely new and different factual situation and cause of action. See Briere, supra, 325 Conn. 207. The initial complaint alleges that the defendant himself negligently operated his own vehicle. The proposed amended complaint, however, alleges a claim of vicarious liability against the defendant through his ownership of the vehicle, which in fact was allegedly negligently operated by the defendant’s son. Admittedly, both complaints stem from the same motor vehicle accident. The set of facts and claims alleged, however, are inconsistent and contradictory "because a person cannot be vicariously liable for another person’s negligent operation of a motor vehicle and simultaneously be liable for his own operation of this same motor vehicle." See Richitelli v. Falcioni, supra, Superior Court, Docket No. CV-17-6022778-S. "If new allegations state a set of facts that contradict the original cause of action ... then it is clear that the new allegations do not fall within the scope of the original cause of action and, therefore, do not relate back to the original pleading." Briere, supra, 325 Conn. 211. Therefore, the relation back doctrine is inapplicable here.
The plaintiff argues that pursuant to § 52-128, she should be permitted to amend the "defect, mistake, or informality" of alleging negligence against the defendant instead of the defendant’s son. Bringing a negligence action against the wrong individual and then seeking to substitute a new party (the defendant’s son) after the statute of limitations has expired, however, is not a minor instance of attempting to correct a misnomer. In light of the relation back doctrine, "if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted." (Internal quotation marks omitted.) Palazzo, supra, 91 Conn.App. 226. Here, the amendment does not "merely correct[ ] the description of th[e] party," but "affect[s] the identity of the party sought to be described in the complaint," and, thus, cannot relate back. (Internal quotation marks omitted.) See id.
The court does note that in paragraph 2 of the original complaint, the plaintiff refers to the defendant as the "owner and operator" of the vehicle. (Emphasis added.) The original complaint, however, proceeds to allege that the defendant negligently operated his own vehicle. It fails to cite to § § 52-182 and 52-183, allege any facts as to the existence of a qualifying relationship between owner and operator of the vehicle, include a vicarious liability count, or implicate the family car doctrine in any way. See Harlow v. Frietas, 25 Conn.Supp. 35, 36, 195 A.2d 769 (1963). Section 52-182 requires a certain relationship between the operator and owner of the vehicle, and triggers a specific presumption that carries evidentiary implications with it. Once a plaintiff alleges and proves that the owner and operator of the vehicle bear a designated relationship under the terms of the statute, the rebuttable presumption that the car is being operated as a family car within the scope of the owner’s general authority arises. Dionne v. Markie, 38 Conn.App. 852, 854, 663 A.2d 420 (1995); see also Hunt v. Richter, 163 Conn. 84, 89-91, 302 A.2d 117 (1972). Therefore, the simple, brief description of the defendant as the owner of the vehicle, as alleged in the plaintiff’s original complaint, is insufficient.
In this matter, the amendment is barred by the applicable statute of limitations because the proposed amended complaint alleges a new cause of action against the defendant that does not relate back to and, therefore, is not treated as filed at the time of, the original complaint. See Miller, supra, 102 Conn.App. 298 ("an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently").
Although the parties’ pleadings do not explicitly cite it, the applicable statute of limitations is two years pursuant to General Statutes § 52-584.
Moreover, with respect to amending the original negligence count to instead allege negligence against the defendant’s son, who was in fact the operator of the vehicle, once again, an amendment that substitutes or entirely changes the identity of the party sought to be described in the complaint is not permitted under the relation back doctrine, thereby bringing it outside the statute of limitations as well. See Palazzo, supra, 91 Conn.App. 226.
CONCLUSION
Accordingly, for the foregoing reasons, the defendant’s motion for summary judgment is granted and the plaintiff’s request for leave to amend the complaint is denied.
SO ORDERED.