Opinion
FBTCV156051233S
06-07-2017
Patricia Carter v. Philadelphia Indemnity Ins. Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
In this uninsured motorist action plaintiff Patricia Carter has moved to strike the Fifth and Sixth Special Defenses alleged by defendant Philadelphia Indemnity Insurance Company that allege respectively " sudden emergency" and " unavoidable accident." For the reasons stated below, the motion to strike is granted.
Standards for Deciding a Motion to Strike Special Defenses
" 'A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.' Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001); Practice Book § 10-39(a).2 'A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.' . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). 'In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.' . . . Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). 'On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.' . . . Smith v. Jackson, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024411-S (August 21, 2015, Roraback, J.) (59 Conn.L.Rptr. 864, ). Finally, 'the trial court is limited to considering the grounds specified in the motion [to strike].' Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980)." Pritsker v. Bowman, 2017 WL 811609 *2 (Conn.Super. 2017) (Bellis, J.).
The Plaintiff Did Not Waive Her Right to Move to Strike the Special Defenses
Defendant argues that plaintiff waived her right to move to strike the special defenses because her motion is untimely under Practice Book § 10-8, which provides pleadings are to advance within thirty days from the preceding pleading. Plaintiff waited eleven months after the filing of the answer to move to strike the special defenses, which is ten months beyond the deadline.
Judge Adams examined this issue in Girouard v. R.I. Pools, Inc., 2009 WL 242334 *2 (Conn.Super. 2009) (Adams, J.), and concluded to follow established precedent and exercise his " discretion to consider untimely motions to strike where a judgment of default had not been entered against the moving party, the motion was filed within a reasonable time, and the tardy filing did not work undue prejudice or injustice."
Defendant's only objection to the motion is that it was untimely. Although ten months is a long time to wait to file a responsive motion, defendant has not cited any prejudice or injustice from the delay and no default had been entered. Trial is not imminent and discovery should be unaffected given the nature of the defenses and the fact that the issues will remain in the case no matter what is decided on this motion. The action will not be unduly delayed by consideration of the motion. The Court will exercise its discretion and consider the merits of the motion.
The Special Defense Alleging " Sudden Emergency" is Stricken
Plaintiff has moved to strike the Fifth Special Defense which alleged " [t]he plaintiff's claimed damages and injuries, if any, were caused by a sudden emergency encountered by Felipe Pereira, namely traffic ahead, including the vehicle operated by plaintiff, which stopped suddenly without warning."
It is well-settled that the defense of " sudden emergency" need not be pleaded. Pareles v. McCarthy, 149 Conn. 238, 178 A.2d 155 (1962). See generally Yashaya v. Acosta, 2016 WL 5415750 *7-9 (Conn.Super. 2016) (Corradino, J.T.R.). The split among the superior court decisions is over whether " sudden emergency" may be pled as a special defense or whether it should be stricken and raised only by general denial of allegations that the defendant's conduct was unreasonable. See generally, 1 Conn. Prac., Super. Ct. Rules § 10-50 p. 7 (2016 ed.). The minority view is that, under our liberal rules of pleading, the special defense provision in Practice Book § 10-50 is permissive as to special defenses not specifically listed; if a defendant wishes to allege " sudden emergency" as a special defense (and perhaps assume the burden of proof) the court in its discretion should permit defendant to do so. See e.g., Kiewlen v. Mallison, 2000 WL 1918055 *2 (Conn. Super. 2000) (Levine, J.) [28 Conn.L.Rptr. 565, ]. The majority rule is that " sudden emergency" is not a viable special defense. See e.g., Rotolo v. Cowin, 2011 WL 2177100 *2 (Conn. Super. 2011) (Maronich, J.) [51 Conn.L.Rptr. 621, ]; Abramova v. Huang, 2005 WL 2517396 *3 (Conn.Super. 2005) (Tanzer, J.) [39 Conn.L.Rptr. 918, ].
Practice Book § 10-50 provides: " [n]o facts may be proven under either a general or specific denial except such as show the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action must be specifically alleged."
Ordinarily, pleading a special defense places the burden of proving the facts in support of that defense on the pleader. Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn. 719, 736, 66 A.3d 848 (2013). If a special defense is filed when a simple denial would suffice, then generally the defendant assumes the burden of proof. See Grecki v. Town of New Britain, 174 Conn. 200, 201, 384 A.2d 372 (1978). See generally 1 Conn. Prac., Super Ct. Rules § 10-50 p. 3. In Yashaya, 2016 WL 5415750 *8-9, Judge Corradino held that the burden of persuasion remained on plaintiff to prove negligence under all the circumstances, including evidence of sudden emergency, even though defendant had pled " sudden emergency" as a special defense. But see Bikakis v. Alcock, 1995 WL 462425 (Conn.Super. 1995)(if " unavoidable accident" special defense had not been stricken defendant would have burden of proof).
There may be a strategic benefit to alleging " sudden emergency" or " unavoidable accident" as a special defense rather than rely on a simple denial if only to ensure the court would instruct the jury accordingly, but it is not necessary to do so to keep those defenses in the case and may be outweighed by shifting the burden of proof.
I agree with the majority view that " sudden emergency" is not a viable special defense. Judge Stevens explained this rationale in Oxford Automotive, LLC v. Kryzwick, 2015 WL 7270654 *2-3 (Conn.Super. 2015) (Stevens, J.):
" . . . [T]here is no sudden emergency 'doctrine' as such under Connecticut law. The characterization of this legal principle as a 'doctrine' is a misnomer to the extent that its proof does not automatically bar a negligence claim. 'A correct statement of the principle is that [i]n an emergency not due to his own negligence, one is not relieved of all obligation to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency.' . . . 'An emergency is but one of the circumstances shown in evidence which are to be considered by the trier in determining whether an operator [of a motor vehicle] exercised due care . . . The question arises only after consideration of the evidence developed in the course of the trial, and may be suggested by the testimony of a witness without any advance knowledge on the part of the parties or their counsel.' . . . Under Practice Book § 10-50, facts that must be specially alleged are those 'which are consistent with [the statements of the complaint] but show, notwithstanding, that the plaintiff has no cause of action . . .' The defendants' third special defense of sudden emergency, even if supported by evidence at trial, would only require the trier to consider these facts in evaluating the issue of reasonable care, and would not establish that the plaintiff 'has no cause of action.' . . . Consequently, the defendants' claim of sudden emergency must be stricken because it is not a legally cognizable special defense under our rules of practice." (Citations omitted).
The motion to strike the Fifth Special Defense of " sudden emergency" is granted.
The Special Defense Alleging " Unavoidable Accident" is Stricken
Plaintiff has moved to strike the Sixth Special Defense which alleged " [t]he incident giving rise to this claim was an unforeseeable and unavoidable accident due to the conditions then and there existing, including the fact that the plaintiff abruptly stopped her vehicle in response to traffic in front of her, namely an unidentified vehicle that turned without signaling."
The controlling authority strongly supports the view that " unavoidable accident" need not be specifically pled and is raised by a denial. In Tomczuk v. Alvarez, 184 Conn. 182, 439 A.2d 935, (1981), the Supreme Court upheld the refusal to give an " unavoidable accident" instruction: " [t]he so-called defense of inevitable or unavoidable accident is nothing more than a denial by [defendant] of his negligence, or a contention that his negligence, if any, was not the proximate cause of the injury." In Schlesinger v. Guasp, 2005 WL 701681 *1 (2005) (Miller, J.) [38 Conn.L.Rptr. 667, ], Judge Miller struck a special defense of unavoidable accident citing Tomczuk, and other superior court decisions that had stricken similar special defenses. See e.g., Bikakis v. Alcock, 1995 WL 462425 (Conn.Super. 1995) (Freedman, J.). See generally 1 Conn. Prac., Super Ct. Rules § 10-50 p.7. The motion to strike the Sixth Special Defense of " unavoidable accident" is granted.