Opinion
No. MMX CV 09 5006676S
September 20, 2010
MEMORANDUM OF DECISION
The plaintiff, Desiree Coleman, commenced this action against the defendants, Dattco, Inc. [Dattco] and Carlos Amaro, in her individual capacity as well as in her capacity as the mother and next friend of the minor plaintiff, Nylah Simone Jenkins. The amended and operative complaint was filed on April 16, 2010 and the plaintiffs allege the following facts therein. On September 7, 2007, the minor plaintiff and the parent plaintiff were passengers on a bus owned by Dattco. At the time Amaro was employed by Dattco and was driving the bus owned by Dattco in his capacity as an agent, servant and/or employee. Amaro pulled into Dattco's depot so the plaintiffs could exit the bus in the parking lot. The plaintiffs exited the bus and began to walk to their vehicle, and Amaro began to drive the bus to the back of the parking lot. While Amaro was driving the bus, it collided with the minor plaintiff, causing her to sustain injuries.
The first and second counts are brought on behalf of the minor plaintiff. The first count alleges common-law negligence and the second count alleges a breach of the duty of utmost care. The third count alleges bystander emotional distress on behalf of the plaintiff parent.
The defendants filed their answer, special defense and counterclaim on May 3, 2010. The defendants' special defense states that the cause of action set forth in the second count of the amended complaint is legally insufficient in that the defendants did not undertake to carry the plaintiffs for hire and/or the plaintiffs did not engage passage but were on the bus as a result of the plaintiff parent's employment with Dattco.
In their counterclaim, the defendants allege the following facts. At all times material to this action, Coleman was employed by Dattco, as a school bus monitor. Dattco allows individuals employed as drivers and monitors to bring their children with them provided written permission is obtained and any such employees agree to certain requirements including, to keep their children with them at all times and not to leave their children unattended for any time while on company property. The plaintiff parent entered such an agreement. As a result, any damages alleged to have been sustained by the plaintiffs were caused by the failure of the plaintiff parent to comply with the provisions of the written agreement and this failure constituted a breach of contract. As such the defendant claims money damages, indemnification for any judgment that may be rendered against the defendants in favor of the plaintiffs and costs incurred in connection with the defense of this action.
On May 6, 2010, the plaintiffs filed a motion to strike the defendants' special defense and counterclaim. The plaintiffs move to strike the defendants' special defense as to count two of the complaint on the grounds that 1) the special defense challenges the legal sufficiency of the second count, which should have been done through a motion to strike; 2) it does not matter that the minor plaintiff was not a passenger for hire, unless the defendant is again attempting to argue that the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284, bars the plaintiffs' claims; and 3) the court has already ruled that count two is not barred by the exclusivity provision of § 31-284, and the defendants are again claiming that count two is barred by the exclusivity provision. The plaintiffs move to strike the defendants' counterclaim on the grounds that 1) the defendants' counterclaim is similar to its earlier pleaded special defense alleging contributory negligence against the plaintiff parent which was previously stricken, and as such the counterclaim should also be stricken because it is precluded by the doctrine of parental immunity; and 2) that the counterclaim is barred by General Statutes § 52-584 which provides that no action alleged to have been caused by negligence can be brought but within two years from the date of the injury. The plaintiffs submitted a memorandum of law in support of their motion.
On May 24, 2010, the defendants filed a memorandum of law in opposition, and the plaintiffs filed a memorandum in response on June 4, 2010. The matter was heard at short calendar on June 7, 2010.
"[A] plaintiff can [move to strike] a . . . counterclaim." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "[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).
"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, supra, 175 Conn. 116; see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
With respect to the defendants' special defense, the plaintiffs argue that the special defense is procedurally improper because it challenges the legal sufficiency of their complaint, which should be done through a motion to strike.
The Supreme Court has stated: "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Grant v. Bassman, 221 Conn. 465, 472-73, 604 A.2d 814 (1992); see also Practice Book § 10-50 (facts consistent with such statements but showing that the plaintiff has no cause of action must be specially alleged). "The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). In Scan Associates, Inc. v. Civitello Building Co, Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0350643 (January 24, 1994, Hodgson, J.) ( 10 Conn. L. Rptr. 646), Judge Hodgson observed that the Supreme Court previously stated, in dicta, that a plaintiff is under no obligation to inform a defendant that a claim is legally insufficient, and that a "failure by [the defendant] to [move to strike] any portion of the . . . complaint does not prevent [the defendant] from claiming that the [plaintiff] has no cause of action." (Internal quotation marks omitted.) Id., 647, quoting Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535 n. 5, 546 A.2d 216 (1998). From this the trial court reasoned that "[t]he only method by which a defendant can put a plaintiff on notice of such a claim when no motion to strike is filed is by asserting the claim as a special defense," and therefore denied the plaintiff's motion to strike the special defense. Scan Associates, Inc. v. Civitello Building Co, Inc., supra, 10 Conn. L. Rptr. 647; see also Practice Book § 10-39(a) ("Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof").
In this case the defendants' special defense does more than just claim that the plaintiffs fail to state a cause of action upon which relief may be granted, it also gives factual statements in support of this challenge. Specifically, the special defense states that count two of the plaintiffs' complaint is legally insufficient because "the defendants did not undertake to carry the plaintiffs for hire and/or the plaintiffs did not engage passage but were on the bus as a result of [the plaintiff parent's] employment with the defendant, Dattco, Inc." For those reasons, the plaintiffs' motion to strike as to the asserted procedural impropriety of the special defense is denied.
The plaintiffs also move to strike the special defense on the ground that whether the minor plaintiff was a passenger for hire is superfluous, unless the defendant is again attempting to argue that the exclusivity provision of the Workers' Compensation Act bars the plaintiffs' claims. In response, the defendants counter that the special defense is legally sufficient in that the defendants do not owe the plaintiff the higher standard of care owed by a common carrier to its passengers for hire, because the plaintiff was not a passenger for hire. In their memorandum in reply the plaintiffs assert that through Public Acts 1965, No. 303 § 2, currently codified as § 52-557c, the legislature made the same standard of care that applies to common carriers of passengers for hire applicable to school bus operators, and that § 52-577c does not require passengers on a school bus to fall within the definition of passengers for hire. In 1965 our Supreme Court stated that "[a] common carrier of passengers undertakes to carry for hire, indiscriminately, all persons who may apply for passage, provided there is sufficient space or room available and no legal excuse exists for refusing to accept them." Hunt v. Clifford, 152 Conn. 540, 542, 209 A.2d 182 (1965). At issue in Hunt v. Clifford, supra, 541-42, was whether the jury charge applicable to a common carrier of passengers was also applicable to the owner and operator of a school bus upon which the passenger was a pupil in kindergarten class, and was being transported home from school pursuant to a contract between the owner of the school bus and the board of education of Bethlehem. There, it was held that "[s]ince the passengers were not accepted on this school bus indiscriminately but were restricted to pupils embraced in the contract of transportation, the bus was not being operated as a common carrier." Id., 542. Nonetheless, "[f]ollowing the decision in Hunt v. Clifford . . . in which [the Connecticut Supreme Court] held that a school bus company was not a common carrier for purposes of determining the applicable standard of care, the legislature enacted Public Acts 1965, No. 303 § 2, codified in § 52-557c of the General Statutes, which made the standard of care applicable to school bus operators the same as that applicable to common carriers of passengers for hire." (Citations omitted.) Josephson v. Meyers, 180 Conn. 302, 305 n. 3, 429 A.2d 877 (1980).
In addition, the plaintiffs challenge the defendants' special defense on the basis that the defendants are trying again to claim that count two is barred by the exclusivity provision of General Statutes § 31-284, but that the court, Burgdorff, J., has already ruled that count two of the complaint cannot be barred under the exclusivity provisions of the Workers' Compensation Act. The defendants respond that the plaintiffs mischaracterize the special defense, and that the special defense is directed at a claim asserted on behalf of the minor child, and the provisions of the Workers' Compensation Act are not relevant to the court's consideration of the special defense. Thus, the defendants agree or otherwise concede that the special defense is not a claim that count two of the complaint is barred by the exclusivity provision of the Workers' Compensation Act.
The text of General Statutes § 52-557c provides: "The standard of care applicable to the owners and operators of any school bus, as defined in section 14-275, or of any motor vehicle registered as a service bus transporting children to and from school or school activities, private or public camps or any other activities concerning the transportation of groups of children shall be the same as the standard of care applicable to common carriers of passengers for hire."
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent 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 [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007). "It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provision which are not clearly stated." (Internal quotation marks omitted.) Brennan v. Fairfield, 58 Conn.App. 191, 196, 753 A.2d 396 (2000), rev'd on other grounds, 255 Conn. 693, 768 A.2d 433 (2001). "Courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for adding them." (Internal quotation marks omitted.) Id., 197.
Further, General Statutes § 52-557c references General Statutes § 14-275, which adds clarity to the issue at bar. Section 14-275 defines "school bus" to mean "any motor bus . . . which is regularly used for transporting school children to and from school or school activities whether or not for compensation or under contract to provide such service . . ." (Emphasis added.) In light of the cross reference to § 14-275, the court holds that the text of the statute clearly does not make a passenger's status as one "for hire" a prerequisite to liability. To hold otherwise would be inconsistent with the statutory scheme. Although the court need not look to extratextual evidence in discerning the meaning of the statute; see Friezo v. Friezo, supra, 281 Conn. 182 (if after examining the text of the statute and its relationship to other statutes, the meaning is unambiguous, extratextual evidence shall not be considered); it is noted that the legislative history of Public Act 1965 No. 303, codified as § 52-557c did not mention any exemptions from liability. See Nisinzweig v. Kurien, Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X05 CV 960150688 (August 21, 2001, Tierney, J.) [ 30 Conn. L. Rptr. 342] (No exemptions from liability were mentioned . . . in 1965 . . ."). For the aforementioned reasons, the court grants the plaintiffs' motion to strike the defendants' special defense as to count two of the complaint.
The plaintiffs first move to strike the defendants' counterclaim on the ground that it is similar to the defendants' earlier special defense alleging contributory negligence against the plaintiff parent which was stricken because it is precluded by the doctrine of parental immunity. The defendants assert that the present issue regarding parental immunity is different and as such the law of the case doctrine does not apply. They also assert that the doctrine of parental immunity does not bar the counterclaim because it sounds in breach of contract and thereby does not depend on the ability of the minor plaintiff to maintain a lawsuit against the plaintiff parent for personal injuries. The plaintiffs counter that the harm alleged in the defendants' counterclaim relies on the plaintiffs prevailing on their claims, specifically the plaintiffs note that the counterclaim seeks "indemnification for any judgment that may be rendered against the [d]efendants in favor of the [p]laintiffs."
"[C]ommon-law indemnification as it presently exists in Connecticut . . . requires a claimant to establish negligence (or breach of contract) in addition to the other prerequisites for indemnification." ATC Partnership v. Coats American, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X10 UWY CV 05 4010141S (October 26, 2006, Munro, J.) [ 42 Conn. L. Rptr. 320], citing Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). Generally, common-law indemnification claims based on contract set out a breach of contractual obligations, that as a result of the breach the defendant was exposed to potential liability, expenses were incurred in conjunction with the defense of the plaintiff's claim, and indemnification is sought in the prayer for relief. See Lisinksi v. New London, Superior Court, judicial district of New London, Docket No. CV 03 0564377 (October 4, 2005, Jones, J.) [ 40 Conn. L. Rptr. 43]; see also Great Springs Water v. Chadburn, Superior Court, judicial district of Stamford, Docket No. CV 96 0155158 (August 24, 1998, Lewis, J.) ( 23 Conn. L. Rptr. 153). In the case at bar, the defendants make the following allegations in their counterclaim: that Coleman entered into an agreement with the defendant, Dattco and that any damages alleged to have been sustained by the plaintiffs were caused by the failure of Coleman, to comply with the provisions of the above mentioned agreement. The defendants further allege that Coleman's failure to comply with the provisions of the agreement constitutes a breach of contract and they request "indemnification for any judgment that may be rendered against the defendants in favor of the plaintiffs" in their prayer for relief. Taking into consideration the aforementioned allegations, the defendants have set out a counterclaim for common-law indemnification based on a breach of contractual obligations.
In Crotta v. Home Depot, Inc., 249 Conn. 634, 642, 732 A.2d 767 (1999), our Supreme Court held that a common-law claim for indemnification was barred by the doctrine of parental immunity. More specifically, in that case the Supreme Court stated: "[T]he common-law doctrine of indemnification permits a tortfeasor to assert a claim only against another liable tortfeasor. As in the case of contribution, indemnity is not allowed against one who has a defense, such as family immunity against the original plaintiff." (Emphasis in original; internal quotation marks omitted.) Id. Correspondingly, parental immunity serves as a bar against the defendants' counterclaim for common-law indemnification in the present case.
This court also notes that the defendants' counterclaim does not fall within any of the exceptions to the doctrine of parental immunity. The two exceptions to the doctrine of parental immunity most pertinent and presently in need of clarification are that: (1) "an unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thereby putting the parent at risk of an indemnity suit. Chase v. New Haven Waste Material Corp., 111 Conn. 377, 380, 150 A. 107 (1930) . . . [and (2)] an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business enterprise conducted away from the home. Dzenutis v. Dzenutis, 200 Conn. 290, 300, 512 A.2d 130 (1986)." (Citations omitted.) Squeglia v. Squeglia, 34 Conn.App. 866, 869, 644 A.2d 378 (1994).
The reasoning used to support the abrogation of the parental immunity doctrine in both categories noted above is what is referred to generally as the public duty exception, which is inapplicable in the present case. See Chase v. New Haven Waste Material Corp., supra, 111 Conn. 380 ("If the husband or parent had by his wrongful conduct injured any person other than his wife or child he would be liable, as would his master, if the wrong was done while he was engaged in his master's business"); Dzenutis v. Dzenutis, supra, 200 Conn. 300 (the duty breached was owed to the public generally because the mishap might well have occurred to any other member of the public who passed that way). In determining if the public duty exception applies, a court must look to whether the duty breached by the parent was a public one rather than one particularly owed to the child. Ascuitto v. Farricielli, 244 Conn. 642, 699-701, 711 A.2d 708 (1998).
In the case at bar, the defendants have alleged in their counterclaim a breach of contract by Coleman based on an agreement she entered with Dattco. They describe this agreement more specifically and state that Dattco "allows individuals employed as drivers and monitors to bring their children with them provided written permission is obtained and any such employees agree to certain requirements including, inter alia, to keep their children with them at all times and not to leave their children unattended for any time while on company property." In light of these allegations it becomes clear that any potential liability on the part of Coleman's conduct would arise because the contract created a duty owed to her child, not a duty owed to the general public. Therefore, the plaintiffs' motion to strike the counterclaim is granted as it is precluded by the doctrine of parental immunity. Although the court has granted the plaintiffs' motion to strike the defendants' counterclaim, it will address the plaintiffs' second ground for striking the counterclaim. The plaintiffs challenge the counterclaim on the ground that it is barred by General Statutes § 52-584 which provides that no action alleged to have been caused by negligence can be brought but within two years from the date of the injury. In response, the defendants state that the counterclaim seeks enforcement of a written contract and is not subject to the statute of limitations for actions sounding in negligence. The plaintiffs counter that the defendants have not established that the agreement was an enforceable contract in that there was no consideration and that the agreement did not apply to the plaintiff parent because the agreement only applies to "drivers."
"An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law. [W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading." (Internal quotations omitted.). Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 783-84, 887 A.2d 420 (2006).
In Bross v. Hillside Acres, Inc., supra, 92 Conn.App. 785-86, our Appellate Court held in that case that "the complaint contains no language that indicates a tort action. To be sure, the complaint allege[d] an assault on [the plaintiff], but that allegation [was] merely an instance of how the defendant breached its contractual obligations and duties. There [was] also no claim for any damages except those associated with the implied contract between the parties." Based on the allegations of the defendants' counterclaim in the present case, this court cannot find that this action sounds in tort. Although the complaint alleges negligent supervision on the part of Coleman, this was merely an instance of how Coleman breached that contractual obligation, nor are the damages inconsistent with a common-law claim for indemnification based on the breach contractual obligations.
As to the plaintiffs' arguments that the defendants, in their counterclaim, have not sufficiently alleged that the agreement was an enforceable contract, the plaintiffs only offer citations to Osborne v. Locke Steele Chain Co., 153 Conn. 527, 218 A.2d 526 (1966), Finley v. Swirsky, 103 Conn. 624, 131 A. 420 (1925), and Barnum v. Barnum, 8 Conn. 469 (1831), for the proposition that consideration consists of a benefit to the party promising and a loss or detriment to the party to whom the promise is made. The Connecticut Supreme Court has stated "that consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made . . . An exchange of promises is sufficient consideration to support a contract." (Citations omitted; emphasis added; internal quotations omitted.) Osborne v. Locke Steele Chain Co., supra, 153 Conn. 531. The defendants have alleged an exchange of promises sufficient to establish that there was consideration, specifically that Coleman promised to supervise her child while the child was on Dattco's property, and in exchange Dattco promised it would allow the minor plaintiff to ride the school bus.
No further authority is cited or analysis is given in support of the plaintiffs' other arguments that the defendants have not sufficiently alleged an enforceable contract. This court notes that "[w]here a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). As a result the plaintiffs' other arguments are deemed abandoned. The plaintiffs' motion to strike the counterclaim is denied as to this ground.
Accordingly, the defendants' special defense is stricken on the ground that the minor plaintiff's status as a passenger for hire on a school bus does not affect the duty owed by the defendants. The defendants' counter claim for common-law indemnification is also stricken on the ground that it is precluded by the doctrine of parental immunity.