Opinion
No. CV 07 5003123 S
June 15, 2007
Memorandum of Decision
The plaintiffs have brought suit against the defendant for personal injuries suffered in a collision between a motor vehicle owned and operated by the defendant and a motor vehicle operated by plaintiff, Louis Ciccarello, in which plaintiffs, Susan Blazer and Alan Adler were passengers. The defendant has filed an amended answer dated March 27, 2007 denying the allegations of negligence set forth in the complaint, asserting a defense of comparative negligence with respect to the claims of Ciccarello and purporting to assert a counterclaim for apportionment against Ciccarello with respect to the claims of Blazer and Adler claiming that the negligence of Ciccarello was responsible, at least in part, for the damages suffered by Blazer and Adler.
At issue is the plaintiffs' motion to strike defendant's apportionment counterclaim dated April 10, 2007. In that motion the plaintiffs assert two grounds for striking the counterclaim. The first ground is their claim that the counterclaim is legally insufficient and not authorized by General Statutes § 52-102b. The second ground is that the counterclaim neither seeks affirmative relief nor sets forth a prayer for relief. On April 16, 2007, the defendant filed an objection to the motion to strike his counterclaim, also accompanied by a memorandum of law. The matter was heard on the short calendar on April 30, 2007
That statute 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. (Emphasis added.)
"Practice Book § 10-39(a) provides in relevant part: Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 116 n. 3, 889 A.3d 810 (2006). "[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996).
In support of their motion to strike, the plaintiffs first argue that the defendant's counterclaim is prohibited pursuant to § 52-102b because it seeks apportionment from someone who is already a party to the case. The plaintiffs contend that the language of § 52-102b that allows service "upon a person not a party to the action" plainly expresses that only a new party may be added under the statute. The plaintiffs note that the issue has not been addressed by the Supreme Court or the Appellate Court and note a split of authority among judges of Superior Court who have considered the question. They urge the court to adopt the position taken by a majority of Superior Court judges that § 52-102b does not allow for apportionment complaints against someone who is already a party to the action. The plaintiffs argue that the minority of decisions in the Superior Court allowing such counterclaims were erroneous and contrary to the "plain meaning" rules of statutory construction.
In his opposition to the motion to strike, the defendant notes the split of authority and concedes that the majority of Superior Court judges have ruled that § 52-102b does not permit apportionment complaints against existing parties. However, the defendant claims that the position taken by a minority of Superior Court judges is better reasoned and more consistent with the clear purposes of the statute. The defendant urges the court to adopt the minority viewpoint and deny the motion to strike his apportionment counterclaim against Ciccarello.
[In support, the defendant argues that, based on prior judicial activity allowing apportionment complaints against existing parties, had the legislature intended to preclude apportionment claims against existing parties, it would have used clear statutory language to achieve that result.
The contested language of § 52-102b provides that a party "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 . . ." (Emphasis added.) There is no question that "§ 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).]
"The majority of Superior Court decisions hold that General Statutes § 52-102b precludes a [counterclaim] for apportionment against someone who is already a party to the action." (Internal quotation marks omitted.) 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, 884). Courts adopting the majority view have generally done so "on the basis of the plain language and legislative history of § 52-102b as well as the fact that apportionment is already available to parties in negligence actions." Id., 884.
See Roklen v. Presnell, supra, 40 Conn. L. Rptr. 883; 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); Ayalon v. Breakstone, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 02 0078878 (December 5, 2003, Cremins, J.); 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. 0119805 (December 11, 2000, Martin, J.).
Some Superior Courts adopting the majority view have also cited the following piece of legislative history for support: "Seeking a clarification on whether the term party as used in the statute refers to someone who is party to the lawsuit . . . 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." (Internal quotation marks omitted.) Roklen v. Presnell, supra, 40 Conn L. Rptr. 884.
"On the other hand, a minority of judges have held that apportionment complaints may be filed against existing parties . . . The opinions that follow the minority view have articulated several grounds for doing so. Primarily, the minority view holds that § 52-102b(a) is irrelevant to persons that are already parties to a suit." (Citations omitted; internal quotation marks omitted.) Id., 885.
See Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. 0429034 March 27, 2001, Blue, J.) (29 Conn. L. Rptr. 311); Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 0423742 (June 14, 2000, Levin, J.) (27 Conn. L. Rptr. 403); CT Page 10639 Farmer v. Christianson, Superior Court, judicial district of Tolland, Docket No. CV 00 71954 (May 4, 2000, Sullivan, J.) (27 Conn. L. Rptr. 196). See also Nevers v. Trans Am Trucking, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 01 0384504 (July 27, 2004, Dewey, J.) (noting public policy grounds for denying motions to strike apportionment cross claim in § 52-572h cases).
In Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 0423742 (June 14, 2000, Levin, J.) (27 Conn. L. Rptr. 403), the court conducted a thorough analysis of the text, legislative history, policy and circumstances surrounding the enactment of § 52-102b in relation to the facts of the case, and adopted the minority view, allowing the apportionment claim against a present party. Regarding the words of the statute, the court determined that "[§ 52-102b(a)] 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 . . . Hence, General Statutes § 52-102b is inapplicable [where the] defendant does not seek to add an additional party." (Emphasis added.) Id., 404. The court additionally found that "the legislative history is strikingly silent on whether or how an apportionment claim may be asserted by a defendant against another party . . . The silence of § 52-102b and its legislative history is significant when viewed with reference to its common law antecedent. Prior to the enactment of the statute in 1995, judges routinely entertained apportionment complaints by defendants against other parties . . . If the legislature had intended to preclude apportionment claims by defendants against existing parties, it could have done so and would have done so in clear language. It did not." (Citations omitted; internal quotation marks omitted.) Id., 405. Finally, the court concluded its analysis by noting that "there is nothing preventing a defendant who seeks apportionment from asserting grounds of negligence different than those asserted by the plaintiff. If an apportionment complaint is not permitted or required against a present party, that party may have no notice of the claim for apportionment let alone the specifications of negligence until the end of the presentation of evidence. Nor may that party have any pretrial notice, in the way of discovery, of the evidence (including expert evidence) to be presented against him." Id., 406.
The court in Torres began its analysis by explaining: "The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Torres v. Begic, supra, 27 Conn. L. Rptr. 403.
In Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. 0429034 (March 27, 2001, Blue, J.) (29 Conn. L. Rptr. 311, 312), the court similarly adopted the minority view after performing a "functional analysis" of § 52-102b. In Sharif, a case factually similar to the present case, the plaintiff-driver filed a motion for summary judgment against the apportionment complaint filed by the defendant. Id., 311. The defendant sought apportionment from the plaintiff-driver for damages claimed by the plaintiff's passenger, a co-plaintiff in the action. Id. In reaching its conclusion, the court noted that "[t]he legislature has not defined the term `party.' The Supreme Court has cautioned that . . . [a]nalyzing the word `party' by its commonly approved usage is inappropriate. Ordinarily the word `party' has a technical legal meaning, referring to those `by or against whom a legal suit is brought.' . . . The Court has construed the term [party) quite narrowly." (Citation omitted; internal quotation marks omitted.) Id., 311-12. The court in Sharif determined that the case was "functionally two cases" and, further, that "there could be no question that [the defendant] could file an apportionment complaint" against the plaintiff-driver had the plaintiffs, driver and passenger, respectively, brought two separate actions against the defendant. Id., 312. Thus, "[a]lthough [the plaintiffs] may have their cases tried together, the jury must be instructed to consider the claims of the two plaintiffs separately." Id. The court concluded by stating that the defendant had "every right to have the jury consider the contribution of [the plaintiff-driver's] negligence" in causing the plaintiff-passenger's injuries. Id.
This court is persuaded by the minority view under the facts of the present case and as resolved in Torres v. Begic and Sharif v. Peck. The court finds that General Statutes § 52-102b does not prohibit the defendant from asserting an apportionment claim against the plaintiff, Louis Ciccarello, with respect to the claims asserted against the defendant by plaintiffs, Susan Blazer and Alan Adler Accordingly, the defendant's motion to strike the apportionment complaint on the ground that it is prohibited by statute is denied.
The plaintiffs' second ground in support of their motion to strike is that the counterclaim does not seek affirmative relief and lacks a prayer for relief. They argue that the apportionment counterclaim is legally insufficient on the ground that it could not stand alone as its own suit because the defendant could not obtain relief against Ciccarello had he sued Ciccarello alone. In addition, they argue that the counterclaim is legally insufficient without a prayer for relief as would be required in a stand-alone action pursuant to Practice Book § 10-20. The defendant responds by arguing that neither the rules of practice nor General Statutes use the term "affirmative relief," and that money damages are not the only form of damages that may be sought.
Practice Book § 10-20 provides: "The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by General Statutes § 52-91."
Practice Book § 10-10 provides in relevant part: "A defendant may . . . file a counterclaim . . . against any other party to the action for the purpose of establishing that party's liability to the defendant for all or part of the plaintiff's claim against that defendant." Apparently neither the Supreme Court nor the Appellate Court has ruled on the issue raised by the plaintiffs' second ground. "Numerous Superior Court decisions have held apportionment counterclaims legally insufficient because of their failure to seek affirmative relief . . . These decisions . . . are predicated on Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 160, 459 A.2d 525 (1983), where the Supreme Court stated that [u]nder [Practice Book § 10-10] a counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." (Citation omitted; internal quotation marks omitted.) Torres v. Begic, supra, 27 Conn. L. Rptr. 406.
In Torres v. Begic, the court considered identical grounds and denied the motion to strike, reasoning: "Neither the Practice Book, in any relevant provision, nor the Connecticut General Statutes, employ the term `affirmative relief.' Indeed, the clear implication of the final sentence of Practice Book § 10-20 is that money damages are only one form of relief that a complaint may seek. Moreover, General Statutes § 52-572h contemplates that, in another context, an original action for contribution may brought. The reference in Wallingford v. Glen Valley Associates, Inc., supra, 190 Conn. 160, to `affirmative relief' must be understood in contradistinction to the relief sought by a defendant, for example, on a pre-trial motion — dismissing or striking a complaint or rendering judgment against a complaining party. In any event, asking a court to shift liability for a personal injury to another party is a sufficient request for `affirmative relief.' Obviously, it is the obligation to pay money damages that the defendant seeks to deflect. Adding the words `money damages' to the defendant's claim for relief is unnecessary and would be inaccurate." Id., 406.
General Statutes § 52-572h provides in relevant part: "(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the 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 economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
The court is persuaded by and adopts the reasoning of Torres v. Begic as applied to the present case. Accordingly, the motion to strike the defendant's counterclaim is denied.