Opinion
No. CV07-5011701S
July 2, 2008
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (#121) (#126) REQUEST FOR LEAVE TO AMEND COMPLAINT (#129)
FACTS
The plaintiff, Scott Diana, alleges the following facts in his amended complaint dated July 12, 2007. On or about May 13, 2005, Diana was at Hartford Brainard Airport in Hartford, Connecticut, for a flight lesson with his flight instructor, Melanie Lackman, when, while on a grassy median, he was struck and injured by the wing of the aircraft. The aircraft was operated by two airmen employed by the defendants NetJets Services, Inc., and/or NetJets Aviation, Inc. (collectively, NetJets). Subsequently, Diana's instructor filed an incident report, which included the tail number of the aircraft which struck Diana, and delivered it by hand to defendant Atlantic Aviation Flight Services, Inc., and/or defendant Brainard Airport Services, Inc.
The amended complaint refers to the two airmen as John Doe 1 and John Doe 2 defendants. However, they are neither listed as defendants on the summons nor does the complaint contain any separate count of negligence against them.
NetJets Services, Inc., and NetJets Aviation, Inc., are named as separate defendants in Diana's complaint. Both NetJets Services and NetJets Aviation are based at the same address in Farmington, CT, and both are represented by the same counsel.
The third count of the amended complaint claims intentional spoliation of evidence against Atlantic Aviation Flight Services, Inc., aka Brainard Airport Services, Inc. The fourth count of the amended complaint claims intentional spoliation of evidence against Brainard Airport Services, Inc., dba Atlantic Aviation. They will be referred to collectively as "Atlantic" or "Atlantic" defendants.
On May 22, 2007, Diana commenced the present action against NetJets, Atlantic, and Midwest Air Traffic Control Services, Inc. (Midwest).
The four-count amended complaint is comprised of one count of negligence against NetJets, one count of negligence against Midwest, and counts of intentional spoliation of evidence against the Atlantic defendants.
NetJets served an apportionment complaint (#119) against Lackman on October 23, 2007. On December 13, 2007, Diana filed a motion to strike (#121) the apportionment complaint, on the ground that it fails to set forth any allegations of negligence against Lackman. Then, on January 22, 2008, NetJets filed a motion to strike (#126) the first count of Diana's amended complaint dated July 12, 2007, on the ground that federal law preempts the common-law standard of care Diana had alleged. On February 1, 2008, NetJets filed a memorandum in opposition to Diana's motion to strike the apportionment complaint (# 128) and on February 5, 2008, Diana filed an objection to NetJets' motion to strike (#131). In addition, Diana filed a request for leave to amend his complaint (#129) on February 4, 2008; NetJets filed an objection to this request (#132) on February 19, 2008.
Diana's motion to strike the apportionment complaint and Diana's request for leave to amend the complaint were scheduled for argument at short calendar on February 25, 2008. The motion to strike was marked off by agreement of counsel. The court, Robinson, J, indicated it would not rule on Diana's request for leave to amend the complaint while NetJet's motion to strike was pending, and that NetJet's motion to strike should be decided first. These matters were heard at short calendar on April 7, 2008.
DISCUSSION A. Diana's Motion to Strike NetJet's Apportionment 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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The court takes the facts "to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Sullins v. Rodriguez, 281 Conn. 128, 132, 913 A.2d 415 (2007).
Diana moves to strike NetJets' apportionment complaint on the ground that it fails to allege negligence against Lackman, the apportionment defendant. NetJets argues in response that its apportionment complaint sets forth sufficient allegations to state a cause of action under General Statutes § 52-102b.
At issue is what an apportionment plaintiff must allege to state a legally sufficient apportionment claim. Apportionment is a statutory creation, governed by § 52-102b(a), which 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 . . . 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." Section 52-572h applies only to negligence actions. See § 52-572h; Bhinder v. Sun Company, Inc., 246 Conn. 223, 231, 717 A.2d 202 (1998).
The statute is silent as to what an apportionment plaintiff needs to allege, though § 52-102b(b) states that an "apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party." Practice Book § 10-20 mandates that a complaint "contain a concise statement of the facts constituting the cause of action . . ."
Compare § 52-102a, "impleading of third party by defendant. Rights and remedies of third-party defendant," which mandates that a complaint filed pursuant to the statute "be equivalent in all respects to an original writ, summons and complaint." The Connecticut Supreme Court has held that a complaint filed pursuant to § 52-102a must allege a cause of action. Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 (1968) ("While the proceeding under § 52-102a therefore is obviously an ancillary one or, as its title indicates, one for `[i]mpleading of third party by defendant in civil action,' nevertheless the statute contemplates that the pleadings are to be treated in the same manner as those in the ordinary civil action. Consequently, the complaint must contain a concise statement of the facts constituting the cause of action . . .") (Internal quotation marks omitted.). "Some courts used General Statutes § 52-102, now § 52-102a, to permit nonparties to be brought into negligence actions for the purpose of apportioning liability." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 24 n. 12, 848 A.2d 418 (2004). See, e.g., Parkes v. HSCB Holdings, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0129233 (March 15, 1995, D'Andrea, J.) (third-party complaint filed pursuant to § 52-102a for purposes of apportionment was legally insufficient as it did not state any specific facts supporting allegations of negligence, nor did it identify any specific negligent acts); Baker v. Franco, Superior Court, judicial district of Danbury, Docket No. CV 91 0307614 (November 25, 1992, Fuller, J.) (7 Conn. L. Rptr. 622, 624) (defendants' motion to cite in another party pursuant to § 52-102a denied because motion included no facts or any specific claims of negligence against the party the defendants sought to bring in for apportionment, motion only included allegation that party was necessary for a complete determination of proportionate liability).
Diana, citing a Superior Court decision, contends that an apportionment plaintiff must allege the elements of negligence. NetJets, on the other hand, maintains that the cause of action in an apportionment complaint is simply that the apportionment defendant is or may be liable to the plaintiff for a proportionate share of damages. Neither party has appellate authority to support their positions.
NetJets bases its argument upon a treatise which asserts: "It appears from § 52-102b that the cause of action in an apportionment complaint is simply that the apportionment defendant is or may be liable to the plaintiff for a proportionate share of damages pursuant to C.G.S.A. § 52-572h. No further allegations seem to be necessary, especially when contrasted with the requirement in § 52-102b(c) that specific factual allegations be set forth in a notice seeking apportionment of the negligence of a party with whom the plaintiff has settled or whom the plaintiff has released." J. Kaye and W. Effron, 3A Connecticut Practice Series: Civil Practice Forms (4th ed. 2004), p. 124.
Diana supports his position with a Superior Court decision, Manafort v. Thibodeau, Superior Court, judicial district of Hartford, Docket No. CV 07 5007785 (May 30, 2007, Keller, J.) [43 Conn. L. Rptr. 513]. There the court found that the apportionment plaintiff did not sufficiently allege a negligence cause of action and consequently granted a motion to strike the apportionment complaint. The court accepted the plaintiff's argument that, reading § 52-102b and § 52-572h together, an apportionment complaint is cognizable only if it states a legally sufficient cause of action in negligence against the apportionment defendant for injury to the plaintiff. Judge Keller stated: "In this case, public policy requires this court to find that the facts alleged in the amended apportionment complaint are insufficiently vague and do not support a finding that [the apportionment defendant] owed a duty of care to [the plaintiff]. Furthermore, the allegations [in the apportionment complaint] that [the apportionment defendant's] conduct may have caused accidental or peripheral harm to [the plaintiff] fail to establish that [the apportionment defendant's] negligence was a proximate cause of [the plaintiff's] injuries."
A review of Superior Court cases reveals other support for Diana's position. "An apportionment defendant is a party for all purposes, and as such, the trier of fact may assign all or a portion of liability to it. General Statutes § 52-102b(a). For that reason, not only is it important that the pleadings clearly articulate the proper legal standard, but they must also set forth a theory of recovery that comports with the purpose of the statute." Oram v. DeCholnoky, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 05 4005513 (June 29, 2006, Shay, J.) [41 Conn. L. Rptr. 629]. (granting motion to strike apportionment complaint in medical malpractice action, where it failed to specifically allege that the apportionment defendant/hospital deviated from the standard of care and that the breach was the proximate cause of the plaintiff's injury.)
In Constantino v. First Union Bank of Connecticut, Superior Court, judicial district of New Haven, Docket No. CV 97 0405594 (September 18, 1998, Moran, J.), the apportionment defendant moved to strike the apportionment complaint, claiming that it did not allege any duty or breach of duty with respect to the apportionment defendants and that in order to be entitled to an apportionment of damages pursuant to § 52-572h, the apportionment plaintiff must allege and prove that the apportionment defendants were negligent and their negligence was the cause of the plaintiff's injuries. The apportionment plaintiff maintained that its apportionment complaint complied with the dictates of § 52-102b(b). What the apportionment plaintiff had filed was a summons naming the apportionment defendants as such and a word-for-word recitation of Diana's complaint. The apportionment complaint was devoid of any mention of the apportionment defendants, nor did it allege any duty, breach of duty or any negligence or fault on their part. The court, in granting the motion to strike, noted that the apportionment plaintiff had read § 52-102b(b) to mean the apportionment complaint shall be equivalent in all respects to the original writ summons and complaint. "Merely reciting the plaintiff's complaint does not satisfy the dictates of Conn. General Statutes § 102b(b). There must be AN original complaint which alleges duty, breach, causation and damages between the parties. Otherwise the apportionment plaintiff would not have any allegations to prove in order to implicate the provisions of Conn. General Statutes § 572h." (Emphasis in original.) Id. See also Northeast Hartford Affordable Housing, L.P. v. Lance Investigations Service, Inc., Superior Court, judicial district of Hartford, Docket No. CV 04 4004322 (February 1, 2006, Miller, J.) (facts alleged in apportionment complaint, if proved, would be sufficient to establish that apportionment defendant caused or contributed to plaintiff's losses and may thus be subject to apportionment); Saucier v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177767 (December 5, 2003, Matasavage, J.) (36 Conn. L. Rptr. 110) (court granted plaintiff's motion to strike defendants' apportionment complaint; facts as alleged in apportionment complaint did not indicate plaintiff's injuries would have been foreseeable to apportionment defendant, thus he did not owe plaintiff a duty and would not be liable to him in negligence as required by statute); Hayes v. Caspers Ltd, Superior Court, judicial district of New London, Docket No. 553769 (January 15, 2002, Martin, J.) (apportionment plaintiff alleged sufficient facts to indicate that apportionment defendant assumed a duty to act with reasonable care toward decedent and consequently, was potentially subject to liability).
NetJets argues that it should not be required to specify allegations of negligence against Lackman because the plaintiff is in a better position to know what Lackman did or did not do wrong. That argument falls short. By bringing the claim for apportionment against Lackman, NetJets, not the plaintiff, has taken on the burden of proving negligence on the part of Lackman. The other basis for NetJets' position that they need not specifically set forth allegations of negligence in the apportionment complaint — their reliance on the Kaye and Effron treatise — is misplaced; this court is of the opinion that apportionment complaints modeled on the Kaye and Effron form, such as that filed by NetJets, are insufficient to withstand a motion to strike.
NetJets alleges in its apportionment complaint that (1) NetJets filed an apportionment complaint against Lackman pursuant to § 52-102b; (2) Diana had commenced an action against NetJets which claimed damages for personal injuries; and (3) "[t]o the extent that the Plaintiff Scott Diana alleges a cause of action for negligence and recovers damages in the original action . . . the [apportionment defendant] is or may be liable for a proportionate share of such damages pursuant to Connecticut General Statutes § 52-572h." Diana's original complaint is attached to the apportionment claim as an exhibit. "A complaint includes all attached exhibits." Tracy v. New Milford Public Schools, CT Page 10889 101 Conn.App. 560, 566, 922 A.2d 280 (2007). Diana's complaint does mention Lackman in the negligence count against NetJets, but it merely alleges that she was Diana's flight instructor and that Diana was there for a flight lesson with Lackman when he was allegedly struck by the aircraft. The court takes the facts alleged in the complaint, including those facts necessarily implied from the allegations, and construes them in a mariner most favorable to the pleader. See Sullins v. Rodriguez, supra, 281 Conn. 132. Doing so, the court may infer that Lackman owed a duty to Diana as his flight instructor. The complaint does not, however, allege that she breached that duty or that there was a causal connection between such a breach and the harm to Diana. "A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence." (Internal quotation marks omitted.) Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 805, 817 A.2d 619 (2003). Viewing the apportionment complaint in the light most favorable to sustaining its legal sufficiency, the facts alleged therein, if proven, would be insufficient to establish that the apportionment defendant, Lackman, caused or contributed to Diana's losses and that Lackman is subject to apportionment.
For the foregoing reasons, Diana's motion to strike the apportionment complaint is granted.
B. NetJets' Motion to Strike Diana's Request for Leave to Amend Complaint
NetJets previously moved to dismiss Diana's negligence claim on the ground that the court does not possess subject matter jurisdiction because the claim is preempted by federal law. This court adopted the view that although the standard of care is preempted by federal law, the state remedy of a negligence claim is not, and, consequently, denied NetJets' motion to dismiss. Diana v. NetJets Services, Superior Court, judicial district of New Haven, Docket No. CV 07 5011701 (December 27, 2007, Bellis, J.) (44 Conn. L. Rptr. 813). In response to this court's December 27, 2007 decision, NetJets, on January 22, 2008, moved to strike the negligence count on the ground that it is not legally sufficient as it does not allege the federal standard of care. On February 4, 2008, Diana filed a request for leave to amend his complaint. The following day, Diana filed an objection to NetJets' motion to strike. On February 19, 2008, NetJets filed an objection to Diana's request for leave to amend his complaint.
A plaintiff who seeks to file an amended complaint more than thirty days after the return date must follow the procedures outlined in Practice Book § 10-60. Subsection (a)(3) of § 10-60 provides in relevant part that a party may file "a request for leave to file [an] amendment, with the amendment appended, after service upon each party . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party."
NetJets timely filed an objection to Diana's request for leave to amend his complaint. This court, however, is not called upon to decide whether a party may amend its complaint while a motion to strike is pending in light of Judge Robinson's order that the motion to strike must be decided before the court rules on the plaintiff's request for leave to amend his complaint.
Superior courts are split on this question. Some courts maintain that "[w]hen a motion to strike is pending, the party whose pleading is being attacked may not file an amended complaint to cure defects raised by the motion [to strike]." (Internal quotation marks omitted.) Harris v. Clinton, Superior Court, judicial district of Middlesex at Middletown, Docket No. 090095 (May 4, 2000, Gordon, J.). See also Curry v. Turek, Superior Court, judicial district of New Britain, Docket No. CV 02 0514544 (April 21, 2003, Quinn, J.); Flores v. Viveros-Velazquez, Superior Court, judicial district of Windham at Putnam, Docket No. 063971 (November 21, 2000, Foley, J.); Jordan v. Sabourin, Superior Court, judicial district of New London at New London, Docket No. 537041 (November 22, 1996, Hurley, J.T.R.) [18 Conn. L. Rptr. 269].
Other courts have taken the position that "the interest of justice is served by permitting the plaintiff to have the legal sufficiency of his claims adjudicated on the basis of his best expression of them." Baranowski v. St. Mary's Hospital, Superior Court, Judicial District of Waterbury, Docket No. CV 98 0148905 (August 16, 2000, Hodgson, J.) (28 Conn. L. Rptr. 79). In Baranowski, the court noted that the Practice Book does not impose any limitation on a court's discretion to grant leave to amend if a pending motion to strike is directed at the pleading the movant seeks to amend. The court also took judicial economy into consideration. "If [the defendant] succeeded on his motion to strike the plaintiff would be entitled . . . to file a new pleading, in which he would no doubt plead the content of the proposed amended complaint, and [the defendant] would no doubt move to strike the new complaint. No resources would therefore be conserved by ruling on the pending motion to strike and denying the plaintiff leave to amend." Id. See also Stromberg v. Hamilton Rehabilitation and Healthcare Center, Superior Court, judicial district of Hartford, Docket No. CV 04 0833616 (March 13, 2006, Shortall, J.); and Connecticut Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, Superior Court, judicial district of New London at Norwich, Docket No. 122084 (January 31, 2002, Martin, J.) [31 Conn. L. Rptr. 312].
In light of Judge Robinson's ruling, this court must consider the July 12, 2007 amended complaint to be the operative complaint when ruling upon NetJets' motion to strike. NetJets argues in its memorandum of law in support of its motion to strike that the negligence count should be struck because Diana does not allege a federal standard of care in accordance with this court's previous ruling. In opposing the motion to strike, Diana does not argue that the July 12, 2007 amended complaint alleges a federal standard of care, but instead argues that the motion to strike is moot in light of the plaintiff's filing of the proposed amended complaint. This argument was rejected by Judge Robinson, however, by virtue of her ruling that the motion to strike must be decided before the request to amend. As the July 12, 2007 amended complaint does not allege a federal standard of care, Diana's negligence claim is legally insufficient. Therefore, NetJets' motion to strike the first count of the amended complaint dated July 12, 2007 is granted.
Given this court's ruling on the motion to strike, the plaintiff is permitted under Practice Book § 10-44 to file a substitute pleading within fifteen days. The court cannot address the merits of the request to amend the complaint, as the count in question has been stricken by the court. The request to amend is denied without prejudice to the plaintiff to replead in a timely fashion.
CONCLUSION
For the foregoing reasons, Diana's motion to strike NetJets' apportionment complaint is granted, NetJets' motion to strike the first count of the plaintiff's amended complaint dated July 12, 2007 is granted, and Diana's request to amend the complaint is denied without prejudice.