Opinion
HHDCV166071136S
05-04-2017
Omiline Chambers v. Manuel Quiles
UNPUBLISHED OPINION
ORDER RE MOTION TO STRIKE APPORTIONMENT COMPLAINT
Cesar A. Noble, J.
The question raised by the motion to strike of the apportionment defendant, Nationwide Mutual Insurance Company (Nationwide), is whether it is within the class of persons identified by General Statutes § 52-102b subject to being sued for apportionment " for a proportionate share of the plaintiff's damages." This court answers the question in the affirmative and denies Nationwide's motion to strike.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Omiline Chambers, brought this action against the defendant, the apportionment plaintiff, Manuel Quiles, by way of complaint, dated August 17, 2016. Chambers' complaint alleges that she sustained injuries in a motor vehicle accident for which Quiles is solely responsible because he operated a motor vehicle, which was towing a trailer, such as to veer into her lane of travel and strike her motor vehicle. Quiles filed a timely apportionment complaint on January 27, 2017, against Nationwide. The apportionment complaint alleges that another unidentified hit-and-run vehicle crossed into Chamber's lane and struck the plaintiff causing her injuries. The apportionment complaint seeks apportionment between Quiles' liability and that of the unidentified driver for whom Nationwide, as the uninsured motorist carrier for the plaintiff, is responsible.
On February 14, 2017, Nationwide filed the motion to strike presently before the court. It asserts that the apportionment complaint is legally insufficient because it claims negligence against an unidentifiable operator and it asserts a contract claim against Nationwide without privity. On April 24, 2017, Quiles objected. In his view, a claim of apportionment as to Nationwide, which as an uninsured motorist carrier acts as a surrogate for unidentified hit-and-run drivers, is in accord with legislative principles of apportionment found in General Statutes § 52-572h and 52-102b. The court heard oral argument on April 24, 2017.
STANDARD
Practice Book 10-39(a) provides in relevant part: " A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of . . . any one or more counts . . . to state a claim upon which relief can be granted . . ." A motion to strike must be denied if " facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). The motion to strike is properly employed to assert the legal insufficiency of an apportionment complaint against an uninsured motorist carrier in which a defendant seeks to apportion his or her liability with that of an unidentified driver for whose negligence the insurer may be responsible. Su Mi Oh v. Sefcik, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-15-6025581-S (June 8, 2016, Heller, J.) (62 Conn.L.Rptr. 456) (2016 WL 3609617); Delone v. Le, Superior Court, judicial district of Hartford, Docket No. CV-14-6050750-S (April 9, 2015, Weise, J.) (2015 WL 2191716); Daddana v. Wigglesworth, Superior Court, judicial district of Fairfield, Docket No. CV-13-6037575-S (February 11, 2014, Sommer, J.) (2014 WL 1012732); True v. Stratton, Superior Court, judicial district of New Britain, Docket No. CV-10-6005127-S (January 26, 2011, Young, J.) (51 Conn.L.Rptr. 368) (2011 WL 725342); Santana v. Tom, Superior Court, judicial district of New Haven, Docket No. CV-07-5002545-S (November 17, 2008, Rubinow, J.) (46 Conn.L.Rptr. 665) (2008 WL 5220213); Shaffer v. Mindell, Superior Court, judicial district of Hartford, Docket No. CV-12-6028079-S (November 7, 2012, Scholl, J.) (54 Conn.L.Rptr. 908) (2012 WL 5992685).
ANALYSIS
Nationwide observes that, while there is no appellate decision that addresses the issue presented here, the majority of Superior Court judges confronting it have granted motions to strike an apportionment complaint seeking to apportion liability between an originally named defendant and an insurer whose policy provides uninsured motorist benefits to the plaintiff. See Su Mi Oh v. Sefcik, supra, 62 Conn.L.Rptr. 456 (2016 WL 3609617, *3), and cases compiled therein. Nationwide adopts the majority view and argues that an apportionment complaint against an insurer providing uninsured motorist coverage is legally insufficient pursuant to Practice Book § 10-39 because Connecticut's apportionment scheme as set forth in § § 52-102b and 52-572h permits only identified persons to be included in an apportionment complaint and the apportionment defendant does not have the privity required to enforce the uninsured motorist benefits that Nationwide provides to its insured, the plaintiff. Quiles disagrees.
Section 52-572h provides for the apportionment of liability among two classes of tortfeasors whose actions are the proximate cause of a claimant's injuries: parties to the action and persons with whom the claimant has settled or released. Section 52-102b provides the exclusive mechanism by which a defendant may make a person the plaintiff has elected not to sue a party to the action so as to obtain consideration of that person's negligence in any apportionment of liability.
Section 52-572h(c) provides in relevant part: " 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 . . ." Section 52-572h(f) provides that the fact finder will apportion damages according to the percentage of negligence " attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section." Section 52-572h(n) provides in relevant part: " [T]he total award of damages is reduced by the amount of the released person's percentage of negligence determined in accordance with subsection (f) of this section."
Section 52-102b(a) provides in relevant part: " 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." General Statutes § 52-102b(f) provides: " 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 proportionate share of the plaintiff's damages as a party to the action."
Our Supreme Court has extensively detailed the development of joint tortfeasor liability in Connecticut. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 23-25, 848 A.2d 418 (2004); Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 728-31; Eskin v. Castigilia, 253 Conn. 516, 524-28, 753 A.2d 927 (2000); Donner v. Kearse, 234 Conn. 660, 666-70, 662 A.2d 1269 (1995). It is useful to revisit this history to provide the context within which the issues presented here may be placed. " Prior to October 1, 1986, this state followed the [common-law] rules of joint and several liability with no contribution among joint tortfeasors." Collins v. Colonial Penn Ins. Co., supra, 729. The legislature enacted what became known as Tort Reform I, effective October 1, 1986, No. 86-338 of the 1986 Public Acts (Tort Reform I), which limited a negligent defendant's responsibility to answer in damages to their proportionate share of all negligence, which proximately caused a plaintiff's injuries regardless of whether all such negligent actors were parties to the action. Id., 730. Tort Reform II, No. 87-227 of the 1987 Public Acts, codified as § 52-572h, (Tort Reform II) was enacted a year later to address the undesirable consequence of requiring plaintiffs to sue all potentially liable persons, no matter how limited the liability, because Tort Reform I did not provide a plaintiff with a means of recovery from a person whose negligence caused the plaintiff's injuries unless the tortfeasor was a party to the action. Id. As mentioned above, § 52-572h permits an apportionment of negligence only among two classes of persons: parties to the action or settled or released persons. Id., 731. See § § 52-572h(c) and 52-572h(n). The important public policy advanced by both Tort Reform I and II was to ensure that defendants would be liable only for their proportionate share of a plaintiff's damages. Id., 737-38.
The apportionment system crafted by the legislature through P.A. 87-227 did not, however, explicitly include a method by which a defendant could secure the addition of a nonparty for purposes of apportionment. " Although § 52-572h created the right for a defendant to apportion liability to any party to the action, it did not include a means to invoke that right." Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 24. The trial courts were " split on the proper procedure to be followed to bring a nondefendant tortfeasor into a negligence action for apportionment of liability pursuant to § 52-572h." Sheehy v. Bic Corp., Superior Court, judicial district of New Haven, Docket No. CV-92-0328505-S (December 15, 1992, Maiocco, J.) (1992 WL 394428, *3) .
Section 52-102b, enacted in 1995, addressed the lack of such a mechanism. " 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.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 20-21. " 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." § 52-102b(a). The primary, indeed the sole, purpose of the statute, is to effectuate and regulate the " broad right to apportionment created by the legislature in 1986 . . ." Lostritto v. Community Action Agency of New Haven, Inc., supra, 25-26.
In the present case, Quiles filed an apportionment complaint against Nationwide for the purpose of apportioning its liability with that of the alleged unidentified hit-and-run driver. The dispositive issue is whether Nationwide is within the class of persons subject to suit for apportionment pursuant to § 52-102b. In answering this issue, the sole question is whether an insurer, which provides uninsured motorist coverage to a claimant, here Nationwide, qualifies under § 52-102b as " a person not a party to the action who is or may be liable pursuant to [§ 52-57h] for a proportionate share of the plaintiff's damages." The construction of this language requires an examination of the text of the statute and its relationship to other statues. General Statutes § 1-2z. The court holds that the plain meaning of § 52-102b compels the conclusion that Nationwide is within the class of persons contemplated by the statute.
Section 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
Nationwide was clearly " a person not a party to the action" and thus fits the first element of the class of persons amenable to suit under the statute. Our Supreme Court has answered the remaining question, that is, whether Nationwide " is or may be liable pursuant to [§ 52-572h] for a proportionate share of the plaintiff's damages, " in the affirmative. In Collins, the court reiterated that " [a]n uninsured motorist claim may be brought in a multitortfeasor context so long as one of the tortfeasors is uninsured, or if one of the putative tortfeasors is unidentified, or the insurance coverage of one of the tortfeasors has been exhausted." (Emphasis added.) Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 732. Because the uninsured motorist carrier acts as a " surrogate" of the unidentified tortfeasor and serves the function of litigating the driver's " blameworthiness" the relationship between an uninsured motorist carrier and a party defendant to the same suit is analogous to that of joint tortfeasors. Id., 734, 738. The court rejected the claim that apportionment between the insurer and other defendants was impermissible under § 52-572h because one liability was grounded in negligence and the other in contract. Id., 732. The court concluded that the liability of an uninsured motorist carrier, essentially coterminous with that of the uninsured motorist, is subject to the purview and application of § 52-572h and is to be apportioned with that of other party defendants. Id., 744. An uninsured motorist carrier, standing in the shoes of an unidentified tortious motorist, is thus a person " liable pursuant to said section [§ 52-572h] for a proportionate share of the plaintiff's damages." Such insurers, accordingly, fall plainly and unambiguously within the class of persons subject to suit for apportionment pursuant to § 52-102b.
More specifically, the court held in Collins that the liability of an uninsured motorist carrier, once extinguished by settlement, is to be treated as that of a settled or released person pursuant to § § 52-572h(f) and 52-572h(n) (see footnote 1) for purposes of apportionment. Id., 731.
Section1-2z instructs courts to ascertain the meaning of a statute not just from its plain meaning but also from its relationship to other statutes. Such an examination supports this court's conclusion. Section 52-102b enjoys a symbiotic relationship with § 52-572h. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 26. The public policy favoring proportional liability advanced by § 52-572h is consonant with the recognition of a party defendant's right to secure the apportionment of an unidentified tortfeasor's liability with the defendant's own liability by the device of an apportionment complaint against the claimant's uninsured motorist carrier.
This court's decision that the apportionment complaint in the present case is legally sufficient is counter to the majority of the decisions of the judges of the Superior Court. See Su Mi Oh v. Sefcik, supra, 62 Conn.L.Rptr. 456, (2016 WL 3609617). These decisions rely, in part, on the holding in Eskin, supra, 253 Conn. 521, which rejected an attempt to file an apportionment complaint directly against an unidentified person, an unknown Jane Doe, who was served with process by publication in two newspapers. The court concluded that " because (1) there is no provision within § 52-102b for service on an unidentified person via publication or by any other means, (2) an unidentified person cannot be served with a writ, summons or a complaint, and (3) the statute provides that it is the 'exclusive means'; General Statutes § 52-102b(f); of adding to a case an apportionment defendant who may be liable to the plaintiff pursuant to § 52-572h, the text of § 52-102b implies that the legislature intended to exclude unidentified persons from the universe of persons or entities subject to being named as an apportionment defendant." Id., 524. Further, a direct suit served via publication against a Jane Doe--unlikely in the extreme to appear and defend--imposes no practical limit to the " universe of negligence" which Tort Reform II sought to restrict. Id., 526-27. This court respectfully disagrees that these reasons are inconsistent with permitting an apportionment complaint against an uninsured motorist carrier.
Quiles' apportionment complaint was served not through publication or against an unidentified person. The complaint was brought via service of the writ, summons and complaint, on the insurance commissioner, Katherine Wade, and is against an identified person, here Nationwide. The obstacle of § 52-102b is thus not present. Moreover, " the universe of negligence" where an uninsured motorist carrier is obliged to answer in damages for the liability of an unidentified motorist properly " includes the negligence of the unidentified driver because [the insurer] is acting, in part, as a surrogate. Significantly . . . an injured plaintiff may recover money from an uninsured motorist carrier who serves as a surrogate for the unidentified person, unlike where a plaintiff merely had brought an action against an unidentified person . . . as in Eskin ." (Internal quotation marks omitted.) Collins v. Colonial Penn Insurance Co., supra, 257 Conn. 739 n.21. Where an apportionment complaint is filed against an uninsured motorist carrier the plaintiff may pursuant to § 52-102b(d) assert a direct claim--with a right of recovery--against the carrier. Thus, the shortcoming of a limitless universe of apportioned liability posed by a Jane Doe suit, which the Eskin court found contrary to the policy advanced by Tort Reform II, is not present in an apportionment complaint against an uninsured motorist carrier.
This sub-section of § 52-102b provides: " Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
The argument raised by Nationwide that a lack of privity between it and Quiles deprives the latter of standing to bring the apportionment complaint may be readily rejected. As noted by the court, Scholl, J., in Shaffer v. Mindell, supra, 54 Conn.L.Rptr. 908 (2012 WL 5992685), privity is not necessary for apportionment purposes. This conclusion is based on the Supreme Court's rejection in Collins of the proposition that apportionment between the liability of an uninsured motorist insurer and other party defendants is precluded because the claim against the former is based on contract rather than tort; Collins v. Colonial Penn Insurance Co., supra, 257 Conn. 741-42; and the Court's observation in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 27, 699 A.2d 964 (1997), that the relationship between a defendant and a plaintiff's uninsured motorist carrier is analogous to that of joint tortfeasors. Shaffer v. Mindell, supra, 54 Conn.L.Rptr. 908 (2012 WL 5992685, *3). This court agrees that privity is not required under the present circumstances.
CONCLUSION
For the foregoing reasons the court concludes that an insurer providing uninsured motorist coverage for the liability of an unidentified motorist is within the class of persons subject to suit by an apportionment complaint as provided by § 52-102b; such an action is wholly consistent with the apportionment scheme developed by our legislature and Quile's complaint is therefore legally sufficient. Nationwide's motion to strike is denied.