Opinion
No. CV07-5013308S
December 18, 2007
MEMORANDUM OF DECISION MOTION TO STRIKE (#108)
The complaint filed by the plaintiff, Nadia Capp, alleges that on or about August 4, 2005, she was a passenger in an uninsured motor vehicle owned and operated by one Joya Diglio, when she sustained injuries when thrown from the motor vehicle due to the negligence of Diglio. Named as the only defendant in the lawsuit is Safeco Insurance Company of Illinois (Safeco) against whom Capp makes a claim for uninsured motorists' benefits.
Safeco is alleged to be the automobile insurer for Capp's mother, with whom Capp resides.
On September 19, 2007, Safeco filed an apportionment complaint against Diglio, which essentially alleges that Capp's injuries were caused by the negligence of Diglio. On November 9, 2007, Diglio moved to strike the apportionment complaint, on the basis that the claim against Safeco is a contract action, and apportionment complaints may only be filed in negligence actions. Safeco filed their objection on November 28, 2007. The matter was argued to the court on December 3, 2007, at which time both parties, through counsel, addressed the issue of whether the apportionment complaint could lie in this particular case, involving only one tortfeaser.
"The motion to strike . . . replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading." (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). "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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 279, 270, 709 A.2d 558 (1998).
Diglio moves to strike the apportionment complaint, on the basis that apportionment complaints may not be filed in uninsured motorist actions. Diglio asserts in its motion that apportionment is limited to cases where negligence is the cause of action against every defendant. Diglio contends that the plaintiff's claim against Safeco is a contract action and not a negligence action and that therefore the apportionment complaint is legally insufficient.
The apportionment complaint was filed pursuant to C.G.S. § 52-102b, entitled, "Addition to person as defendant for apportionment of liability purposes," and which provides in relevant part as follows:
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 which the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under Section 52-572h.
The pertinent provisions of § 52-572h provide 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."
Safeco, in its objection, counters by reference to the Connecticut Supreme Court decision in Collins v. Colonial Penn Insurance Co., 257 Conn. 718 (2001), which recognized the hybrid nature of uninsured motorist coverage, and allowed apportionment in an uninsured motorist case.
Safeco also cites Utton v. Garner, CV05 4007243, Judicial District of Hartford at Hartford, October 24, 2005 (Tanzer, J.), for authority. In Utton the plaintiff, Valerie Utton, moved to strike the apportionment complaint filed by one of the tortfeasors, which sought to apportion liability to the uninsured motorist; the court denied the motion to strike, rejecting the plaintiff's argument that apportionment was procedurally improper since the uninsured motorist carrier, who was already a defendant, and the uninsured tortfeasor were considered "one" party for apportionment purposes. The court emphasized that the UM carrier was not a surrogate for the uninsured tortfeasor for all purposes, such as in the discovery context. Utton, however, is distinguishable from the present case, as Utton involves a four-car accident with numerous tortfeasors.
In light of the decision in Collins, apportionment complaints may be filed in the appropriate uninsured motorist case.
At oral argument, Diglio contended that the apportionment complaint was legally insufficient in this particular case where the accident at issue involved only one tortfeasor. Safeco argues that the apportionment complaint was legally valid on these facts.
Collins v. Colonial Penn Insurance Co., supra, is instructive. In Collins, the plaintiff, Carol Collins, was injured in a three-car accident, and brought suit against Raymond A. Sardinas and Raymond D. Sardinas (collectively, Sardinas), the operator and owner, respectively, of one of the vehicles involved in the accident, as well as against Colonial Penn Insurance Company (Colonial Penn), Collins' uninsured motorist carrier. The complaint alleged negligence on the part of Sardinas; the claim against Colonial Penn was based solely on the alleged negligence of an unidentified driver of the third vehicle, which left the scene. During jury selection, the plaintiff settled and withdrew her claim as to Colonial Penn, leaving only the claim as to Sardinas. The action against Sardinas was tried to a jury, which returned a verdict in favor of the plaintiff. The trial court refused to instruct the jury that negligence and damages should be apportioned between Sardinas and the unidentified driver, concluding that the principles of apportionment did not apply to uninsured motorist settlements. The Connecticut Supreme Court reversed:
In the present case . . . it would be inequitable . . . to allow a plaintiff who does have uninsured motorist coverage and has collected an amount pursuant to a settlement in an automobile accident involving multiple tortfeasors, to deny any application of the principles of Tort Reform II, namely, that each individual tortfeasor pays its fair share or portion of damages sustained. This is especially significant because Colonial Penn was brought into the litigation solely to litigate the blameworthiness of the unidentified driver. We conclude that in this case there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the underinsured carrier is named in the complaint to act as the identified driver's surrogate. Therefore, given the statutory scheme underlying this case, the nature of the complaint, and the cause of the accident, we conclude . . . that the trial court improperly refused to instruct the jury regarding the issue of apportionment. Id. 743-44.
The court explained:
We recognize that the damages sustained by a claimant may be caused by the negligence of more than one tortfeasor under § 52-572h. Also, it is important to note that the purpose of § 52-572h was to change the common law of joint and several liability such that a defendant would be liable only for that portion of the damages for which he was responsible. In order to be consistent with both the language and the underlying policy of § 52-572h, this is a case where we acknowledge . . . the sui generis nature of uninsured motorist benefits. Colonial Penn acted, in part, as a surrogate for the third party tortfeasor as well as a party against whom the plaintiff maintained a first party contract claim . . . In the present case, Colonial Penn was not only a named, identifiable party in the original complaint, but its function in this case was to litigate the blameworthiness of the unidentified hit-and-run driver. That is, its liability in the uninsured motorist contract was predicated on the negligence of the phantom driver . . . The plaintiff, in her complaint, linked the cause of her damages not only to the negligence of the defendant, but also to the negligence of the unidentified driver when it named Colonial Penn as a defendant. Id. at 737-38. (Citations omitted.)
The court in Collins recognized that depending on the situation, there may be claims of negligence against more than one tortfeaser; the case involved a multi-car accident with an unidentified tortfeasor, and the complaint alleged negligence against both Sardinas and the unidentified hit and run driver. In the present matter, however, there is but one tortfeasor, Diglio. The sole claim against Safeco is the uninsured motorist claim—Safeco was sued solely for the purpose of litigating the negligence of Diglio. Clearly, Safeco's function is to litigate the blameworthiness of Diglio. Any liability on the part of Safeco is predicated on the negligence of Diglio. Put another way, if Diglio is not negligent, Safeco cannot be held liable.
Simply put, an apportionment claim cannot lie against Diglio in this case, because Safeco is, in essence, a surrogate for Diglio, and there is no negligence to apportion in the case where the allegations of the complaint make clear that there is only one tortfeasor.
For the foregoing reasons, the Motion to Strike, filed by the apportionment defendant Diglio, is granted.