Opinion
No. CV06-5001967S
April 11, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE THIRD-PARTY COMPLAINT (#117) AND MOTION TO STRIKE PLAINTIFF'S SECOND AMENDED COMPLAINT (#119)
FACTS
The matter presently before the court arises out of a January 19, 2004 incident. The plaintiff, Michael Consiglio, alleges in his complaint, returnable March 28, 2006, that he was injured when he slipped and fell on ice on property owned, controlled and/or maintained by the defendant, Ann Streeto. The plaintiff filed an amended complaint on April 25, 2006, in which he added injuries to his face, including a fracture to his nose and broken and damaged teeth, which he claimed resulted from a fall at Yale-New Haven Hospital (YNHH), where he had been undergoing treatment for the injuries allegedly incurred in the slip and fall. On March 9, 2007, the defendant served YNHH with a Third-Party Complaint, returnable April 17, 2007, and seeking indemnification and apportionment of liability. On April 27, 2007, the plaintiff filed a Request for Leave to Amend his complaint, seeking, inter alia, to bring a direct claim of negligence against YNHH. On May 29, 2007, the defendant filed a Request for Leave to file an Amended Third-Party Complaint. On June 26, 2007, YNHH moved to strike the defendant's amended third-party complaint on the grounds that it was not timely filed under C.G.S. § 52-102b, and that it failed to state a cognizable cause of action for indemnification. On July 10, 2007, YNHH moved to strike the third count of the plaintiff's second amended complaint dated April 25, 2007, on the grounds that the plaintiff's claims of negligence against YNHH are time barred.
The plaintiff's amended complaint does not identify the date of the alleged fall at YNHH.
The defendant's third-party complaint against YNHH identifies the date of the alleged fall at YNHH as January 27, 2004, 8 days after the initial fall.
This Second Amended Complaint, dated April 25, 2007, alleges that the fall at YNHH occurred on January 27, 2004.
Connecticut General Statutes § 52-102b(a) provides in relevant part as follows:
A defendant . . . 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 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.) Peer Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998) . . .
Neither the plaintiff nor the defendant/third-party plaintiff filed an opposition. The matter was heard at short calendar on March 17, 2008.
DISCUSSION
CT Page 5790
I.
"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. 269, 270, 709 A.2d 558 (1998). "A claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993); see also Practice Book § 10-50. "In two limited situations, however, [the court] will allow the use of a motion to strike to raise the defense of the statute of limitations. The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by a [motion to strike] instead of by answer . . . The second is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right-it is a limitation of the liability itself as created, and not of the remedy alone." (Citations omitted; internal quotation marks omitted.) Forbes v. Ballaro, supra, 31 Conn.App. 239-40.The court must initially address the respective failures of the plaintiff and the defendant/third-party plaintiff to file memoranda in opposition to the motions to strike.
"Prior to the amendment of . . . Practice Book § [10-42 in 1989], a party who failed to timely file a memorandum of law in opposition to a motion to strike was deemed to have consented to the granting of the motion . . . With the deletion of the foregoing provision from Section [10-42], the failure to timely file an opposing memorandum will not necessarily be fatal and the court may therefore address the merits of the motion. However, despite the amendment to . . . Practice Book § [10-42], the filing of a memorandum in opposition to a motion to strike is mandatory and the failure to file such may still serve as a ground for granting a motion to strike." (Emphasis in original; internal quotation marks omitted.) Barbagallo v. Rob's Automotive, Superior Court, judicial district of New Britain, Docket No. 494961 (December 3,1999, Wollenberg, J.) [26 Conn. L. Rptr. 90].
Prior to the 1989 amendment, Practice Book § 155, now § 10-42, provided that a party who failed to file a memorandum in opposition to a motion to strike "shall be deemed by the court to have consented to the granting of the motion"; [t]he memorandum must be filed, or the motion to strike shall be granted." Hughes v. Bemer, 200 Conn. 400, 402 (1986) (emphasis in original). The current Practice Book, § 10-42, now provides that "[a]ny adverse party who objects . . . shall, at least five days before the date the motion is to be considered on the short calendar, file and serve . . . a memorandum of law." The Connecticut Appellate Court, in Doe v. Board of Education, 76 Conn.App. 296 (2003) declined to address the issue of whether a failure to file a memorandum in opposition to a motion to strike, following the 1989 amendment, remains a proper basis for granting the motion to strike, and the trial courts since that time have been split unevenly on the issue. A minority of the trial courts that have decided the issue have held that absent the filing of a memorandum in opposition, the motion to strike must be granted on procedural grounds. See e.g. Stamford v. Clear Channel Outdoor, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 03 0194433 (January 19, 2005, Wilson, J.). A majority of the trial courts have held that the court has discretion to consider the motion to strike on its merits. See e.g. DeJesus v. Smith, Superior Court, judicial district of Windham, Docket No. 063771 (January 9, 2001, Foley, J.). One majority decision, Sullivan v. Guzman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 04 4002010 (October 24, 2006, Adams, J.) [42 Conn. L. Rptr. 233], noted that the lack of opposition "add[ed] some force" to the moving party's arguments. This court will join the majority and consider the merits of YNHH's motions, despite the failure of the opposing parties to file memoranda in opposition. Further, this court adopts Judge Adams' reasoning that the lack of opposition adds some weight to the movant's arguments.
II.
Was the defendant's apportionment claim against YNHH timely filed?
The defendant's complaint against YNHH, although entitled "Third Party Complaint," seeks both apportionment of liability as well as indemnification.
Our apportionment statute, C.G.S. § 52-102b, provides in subsection (a) that "[a] defendant in any civil action . . . may serve a writ, summons and complaint upon a person not a party to the action . . . within one hundred twenty days of the return date specified in the plaintiff's original complaint." (Emphasis added.) Subsection (a) further provides that the apportionment defendant "shall be a party for all purposes." Subsection (d) of the statute states that "the plaintiff may, within sixty days of the return date of the apportionment complaint . . . assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint" (emphasis added).
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35-36 (2004), the Connecticut Supreme Court held that the 120-day time limitation was a mandatory time limitation which must be complied with, unless there is an equitable reason such as waiver or consent of parties to excuse the compliance. The Lostritto decision resolved the split of authority in the trial courts as to whether the 120-day limitation was mandatory or directory. The court found no equitable reason to excuse compliance with the 120-day limitation in that case, rejecting the argument of the apportionment plaintiffs that the uncontested extension of time to file an apportionment complaint granted by the trial court had operated as a waiver, as the apportionment defendants were not parties at the time and had no notice of the motion for extension of time. Id. The Lostritto court, after careful analysis, determined that the failure to comply with the 120-day window of § 52-102b implicated personal jurisdiction rather than subject matter jurisdiction and affirmed the judgments of the trial court granting the motions to dismiss the apportionment complaint. Id. at 33.
In Pedro v. Miller, 281 Conn. 112 (2007), the Connecticut Supreme Court, once again faced with the issue of non-compliance with the 120-day time limitation, allowed for another equitable reason to excuse compliance with the 120-day time limit, beyond waiver and consent. In Pedro, the plaintiff filed a lawsuit, returnable February 18, 2003, against the owner and operator of a motor vehicle for injuries allegedly sustained in a motor vehicle accident; by Amended Complaint June 29, 2004, the plaintiff alleged that during her treatment for the injuries she sustained in the motor vehicle accident, she suffered from a cerebrospinal fluid leak. The defendants/apportionment plaintiffs served an apportionment complaint for medical malpractice against the treating physician on October 22, 2004. The trial court granted the motion to dismiss the apportionment complaint, on the basis that it was served more than 120 days after the return date of the original complaint. The Connecticut Supreme Court reversed, finding compelling equitable considerations to toll the 120-day time limit. The court, noting that it was impossible for the defendants/apportionment plaintiffs to serve the apportionment complaint within the 120-day because the apportionment plaintiffs had no factual or legal basis for seeking apportionment until the plaintiff filed the amended complaint after the 120-day adding the additional injury, found the new claims alleged in the Amended Complaint to be an equitable reason justifying excusal from compliance with the 120-day limit. Id. at 118-19. Importantly, the court in Pedro made clear that while waiver and consent are classic exceptions to lack of personal jurisdiction, they are merely examples of equitable exceptions.
Following the Pedro decision, at least two trial courts have addressed the issue of whether to excuse compliance with the 120-day time limitation. In Frey v. Escalante, Superior Court, judicial district of New London at New London, Docket No. CV06 5100303 (May 2, 2007, Hurley, J.), the court granted the apportionment defendant's motion to dismiss the apportionment complaint for lack of personal jurisdiction, where the apportionment complaint was not filed within the 120-day; the court, while recognizing that equitable considerations other than waiver or consent could toll the 120-day limit, was not presented with any equitable considerations to take into account. In Joseph v. UIL Holdings Corp., Superior Court, judicial district of New Haven, Docket No. 07 2010389 (October 19, 2007), this court granted the apportionment defendant's motion to dismiss the apportionment complaint, where the apportionment complaint was placed in the hands of the sheriff on the 121st day and served on the 126th day; the "savings statute," C.G.S. § 52-593(a) did not apply as the apportionment complaint was not given to the marshal in advance of the 120-day, and the court was not presented with any equitable considerations to toll the 120-day requirement.
Our Supreme Court, in the Lostritto and Pedro decisions, made clear that the 120-day window was mandatory and must be complied with, absent a compelling equitable reason to excuse the compliance. Additionally, and importantly, the court clarified that the failure to comply with the 120-day limitation implicated personal jurisdiction rather than subject matter jurisdiction. See also Carpenter v. Law Offices of Dressler and Associates, LLC, 85 Conn.App. 655, 661 (2004) (the service provision of § 52-102b(d) implicates personal jurisdiction, challenges to which are waived if not timely raised).
Practice Book § 10-30 provides that "[a]ny defendant, wishing to contest the court's jurisdiction . . . must do so by filing a motion to dismiss within thirty days of the filing of an appearance." "[T]he 30-day deadline is an absolute without exception . . . The 30 days cannot be waived by agreement of both parties, by the plaintiff's failure to object, or extended by the court." W. Horton and K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules, (2008 Edition), § 10-30, Authors' Comments, p. 489 (Citations omitted). "If the motion is not filed within 30 days, waivable jurisdictional defects are waived. Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, 92 Conn.App. 410, 416, 885 A.2d 768, 773 (2005) (personal jurisdiction) . . . This waiver was applied to apportionment defendants who untimely moved to dismiss on personal jurisdiction grounds. CT Page 5794 Carpenter v. Law Offices of Dressler and Associates, LLC, 85 Conn.App. 655, 858 A.2d 820 (2004)." Id.
"The motion to dismiss shall be used to assert . . . lack of jurisdiction over the person." Practice Book § 10-31(a) (emphasis added). "Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by Section 10-30." Practice Book § 10-32.
[T]he filing of an appearance on behalf of a party, in and of itself does not waive that party's personal jurisdiction claims. Nevertheless, "[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." Practice Book § 10-30. The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person is waived unless it is raised by a motion to dismiss filed within thirty days. Thus, thirty-one days after the filing of an appearance . . ., a party is `deemed to have submitted to the jurisdiction of the court.' Any claim of [lack of personal jurisdiction] is waived if not sooner raised. Pitchell v. Hartford, 247 Conn. 422, 432-33 (1999).
Judge Sheldon clearly and concisely explained the Pitchell decision:
The upshot of Pitchell could hardly be clearer. The 30-day deadline for filing motions to dismiss based on alleged lack of personal jurisdiction is a mandatory deadline that must be complied with or the defendant will be deemed to have waived all challenges he might have to the Court's jurisdiction over his person. Extension of the deadline for any reason, on a motion for extension of time to file a responsive pleading or otherwise, would be completely inconsistent with the relevant language of the Practice Book, which makes no provision whatsoever for such extensions. Granting extensions to some defendants and not others, moreover, would surely lead to the very result that the Pitchell Court sought to avoid by issuing its strongly worded decision, to wit: "[a] compromise [of] these well established, unambiguous Practice Book provisions [, and with it] . . . a case-by-case analysis by the courts, which would lead to uncertainty of application." Id. State v. Four Health Drugs, LLC, Superior Court, judicial district of Hartford, Docket No. 01 0807586 (March 30, 2004) [36 Conn. L. Rptr. 748].
In the present matter, the challenge of YNHH suffers from a fatal procedural defect that cannot be cured such that court is required to deny the motion. YNHH was served with the apportionment claim on March 9, 2007. Counsel filed an appearance on behalf of YNHH on April 17, 2007. Although counsel on behalf of YNHH filed a motion for extension of time to plead to this complaint, this motion was never granted and even if granted, would not have permitted YNHH to file a motion to contest personal jurisdiction beyond the mandatory 30 days set forth in Practice Book § 10-30. As such, even if the court were to construe YNHH's Motion to Strike as a Motion to Dismiss, YNHH has waived any such jurisdictional defect by failing to contest the court's jurisdiction within thirty days of filing its appearance. This court is bound by our Supreme Court's decision in Pitchell and must conclude that the instant motion, challenging personal jurisdiction, was untimely because it was not filed within thirty days of the initial filing of appearance by counsel.
Accordingly, because the failure to file a timely motion challenging lack of personal jurisdiction constitutes a waiver of one's jurisdictional challenge as a matter of law, the instant motion must be denied on that ground.
Was the plaintiff's direct claim against YNHH timely filed?
YNHH's motion, as it relates to the timeliness of the plaintiff's direct claim against YNHH, presents a somewhat trickier picture. On April 27, 2007, the plaintiff filed a Request to Leave to Amend the complaint, adding the direct claim of negligence against YNHH, which was not objected to. Therefore, for the first ten days following the filing of counsel's appearance for YNHH on April 17, 2007, there would have been no basis for YNHH to file any motion challenging personal jurisdiction directed to the plaintiff, as the plaintiff's request to add the direct claim was not filed until April 27, 2007.
YNHH did obtain an extension of time to plead to the amended complaint, through June 10, 2007; however, for the reasons discussed above, this did not extend the time for YNHH to challenge personal jurisdictional issues.
A similar fact pattern is presented in O G Industries, Inc. v. LaFarge Building Materials, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 06 5002572 (July 24, 2007, Tyma, J.). There, the apportionment complaint filed by the defendant set a return date of October 10, 2006. More than sixty days later, on January 18, 2007, the plaintiff filed a request for leave to amend his complaint to assert a direct claim of negligence against the defendant. The apportionment defendant, whose counsel had filed an appearance "in its capacity as an apportionment defendant" on November 22, 2006, filed an objection to the request to amend on this basis that it was not filed within the sixty days; the court, Radcliffe, J., on March 5, 2007, overruled the objection "without prejudice to the right of [the apportionment defendant] to move to dismiss" the direct claim. Within thirty days of the court's ruling, the apportionment defendant moved to dismiss the plaintiff's direct claim against it based on its untimeliness. The court rejected the plaintiff's argument that the apportionment defendant only had until December 22, 2006 (thirty days from its appearance) within which to move to dismiss the direct claim, stating: "[t]o accept the plaintiff's argument would mean that [the apportionment defendant] would have had to file a motion to dismiss a direct claim that had yet been made against it by the plaintiff and for which counsel had yet to appear." The court, noting that Judge Radcliffe expressly allowed for the filing of a motion to dismiss, held that the apportionment defendant did not waive its ability to contest the court's personal jurisdiction over it by filing the motion to dismiss within thirty days of Judge Radcliffe's order, and granted the motion to dismiss.
Although the movant claimed the issue was one of lack of subject matter jurisdiction, the court properly recognized the challenge was one of personal jurisdiction.
In the present matter, there was no direct claim to challenge until the filing of the Request for Leave to Amend on April 27, 2007. No objection was made to the Request to Leave to Amend. Therefore, had YNHH wished to challenge the personal jurisdiction of the court with regard to that direct claim, the proper motion should have been filed on or before May 27, 2007. The court must therefore deny YNHH's motion as it relates to untimeliness of the plaintiff's direct claim.
Practice Book § 10-60(a)(3) allows for an objection to be filed within fifteen days from the date of the filing of the request.
The court reached the date of May 27, 2007 by calculating thirty days from the filing of the request for leave to amend on April 27, 2007. Even if the 30-day date had been calculated following the expiration of the fifteen days within which objections could be filed to the request (i.e., from May 12, 2007), the motion would still be untimely, as it was not filed until July 10, 2007.
III
Does the amended third-party complaint state a cognizable cause of action for indemnification?
The amended third-party complaint, dated May 29, 2007, incorporates the allegations of the original complaint dated January 4, 2006, and in addition to apportionment, seeks indemnification. It alleges that while the plaintiff was confined to YNHH for treatment of the injuries sustained in the January 19, 2004 fall, he sustained additional injuries in a fall at YNHH on January 27, 2004. The amended third-party complaint sets forth the claimed negligence of YNHH as follows:
a. The surface on which the plaintiff was walking was uneven;
CT Page 5797
b. The area in which the plaintiff was walking was inadequately lighted;
c. The defendant failed to inspect the dangers associated the uneven surface;
d. The (sic) failed to repair or otherwise correct said area when the same was reasonably necessary under the circumstances.
e. There were no warnings in the area to warn persons such as the plaintiff of the dangerous conditions then and there existing;
f. The sidewalk and the area where people walk was not reasonably safe for purposes and uses intended.
Finally, the amended third-party complaint claims that if the plaintiff prevails in his action against the defendant/third-party plaintiff, then YNHH is "legally responsible for some or all of those injuries and damages."
The defendant/third-party plaintiff attempts to make a claim for common-law, rather than contractual, indemnification. "In an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another [tortfeasor]. The doctrines of indemnification and contribution are based on fundamentally different principles. [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others . . . Ordinarily there is no right of indemnity or contribution between joint tortfeasors.
Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury . . . Under the circumstances described, we have distinguished between "active or primary negligence," and "passive or secondary negligence." . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones. Thus, the common-law doctrine of indemnification permits a tortfeasor to assert a claim only against another liable tortfeasor." Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42 (1999). In order to state a cause of action for active negligence, the party seeking indemnification must establish: (1) that the defendant was negligent; (2) that the defendant's negligence, rather than the negligence with which the plaintiffs were found chargeable, was the direct and immediate cause of the accident; (3) that the defendant was in exclusive control of the situation; and (4) that the plaintiffs did not know of the defendant's negligence, had no reason to anticipate it and could reasonably rely on the defendant not to be negligent. City of Bristol v. Dickau Bus Company, Inc., 63 Conn.App. 770, 775 (2001). While the defendant/third-party plaintiff does allege that YNHH was negligent, it falls far short in otherwise sufficiently pleading a claim for indemnification against YNHH. Accordingly, YNHH's motion to strike the claim for indemnification is granted; the notion to strike the amended third-party complaint in its entirety is denied. See Practice Book § 10-45. The defendant/third-party plaintiff is therefore ordered to file, within thirty days of receipt of this order, a second amended third-party complaint, deleting any claims for indemnification.
IV
For the foregoing reasons, YNHH's Motion to Strike the third count of the plaintiff's second amended complaint dated April 25, 2007 is denied. YNHH's Motion to Strike the defendant's amended third-party complaint of May 29, 2007 in the entirety is denied. The claims for indemnification in the amended third-party complaint are stricken, for failure to state a cognizable cause of action.