Opinion
No. CV-08-5020589
January 30, 2009
MEMORANDUM OF DECISION ON APPORTIONMENT DEFENDANT'S MOTION TO STRIKE/DISMISS (#117, 118)
In this case, the plaintiff has brought suit for injuries sustained on the common area of the condominium unit that he owns, which is alleged to be controlled and maintained by the defendants. The plaintiff alleges that he was injured in a fall when a portion of the back deck to his condominium gave way.
The first named defendant, Raynham Hill Condominium Association, Inc. ("Raynham Hill"), is alleged to be the condominium association that controls and maintains the common and limited common areas of the association, including the wooden deck on the plaintiff's unit. The plaintiff alleges that Raynham Hill entered into contracts at different times with the two other named defendants, First Place Management and CCMS, LLC d/b/a The Concord Group, to maintain, control, inspect and repair the common and limited common areas. The complaint was filed on May 27, 2008, and its return date was June 10, 2008. On September 29, 2008, the defendants Raynham Hill and First Place Management filed an apportionment complaint against ABCO Contractors, Inc. On October 29, 2008, the plaintiff amended his complaint to add four counts directly against ABCO. He alleges that ABCO was employed by a contract with Raynham Hill to inspect and ensure the safety of the limited common areas, including his back deck.
The apportionment defendant ABCO has filed two motions to "dismiss/strike." The first motion, #117, is directed to counts nine though twelve of the plaintiff's amended complaint, arguing that the counts are barred by the statute of limitations. The second motion, #118, is directed to the apportionment complaint. That motion argues that the apportionment complaint is invalid. Both the plaintiff and the apportionment plaintiff's have filed objections to their appropriate motion. The court heard argument on December 22, 2008.
One preliminary matter must be addressed. The apportionment defendant has captioned its motions as "motion to dismiss/strike," yet no such hybrid motion exists under our Practice Book. A reading of the attached memoranda of law provides little assistance into which specific legal ground it relies upon. A motion to dismiss contests the court's jurisdiction, while a motion to strike contests the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Generally, motions to dismiss or strike are not the proper vehicles in which to raise the statute of limitations. See Practice Book § 10-50; Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006). An exception to this general rule does, however, exist: "Where . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993); Greco v. United Technologies Corp, supra, 344-45.
Apportionment defendant's motion #117
In this motion addressed to the plaintiff's amended complaint, the defendant seeks to dismiss/strike counts nine through twelve and argues that they are outside the statute of limitations for a negligence action. In a motion to strike, the movant admits all well-pleaded facts. Here, ABCO claims only that its motion to dismiss/strike the apportionment complaint should be granted, and if so ordered, that counts nine through twelve must fail because they were added after the two-year statutory time limitation for negligence claims. As a motion to strike, ABCO has failed to show how the counts are legally insufficient and on this ground, the motion fails. As a motion to dismiss, the argument is that personal jurisdiction is lacking. Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007), controls this claim.
In Pedro, our Supreme Court held that the provisions of General Statutes § 52-102b(a) are mandatory and that, subject to limited equitable exceptions, the apportionment complaint must be brought within 120 days of the return on the plaintiff's original complaint or personal jurisdiction is lacking. In the present case, that requirement was met. The original return date of plaintiff's complaint was June 10, 2008 and the apportionment complaint was filed September 29, 2008, on the one-hundred tenth day. The plaintiff then filed the amended complaint, bringing a direct action against the apportionment defendant, which he was within his right to do. See Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 661, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004). Therefore, jurisdiction lies in the present case and the motion to dismiss/strike #117 is denied and the objection to the motion sustained.
Apportionment defendant's motion #118
In this motion, ABCO argues that the apportionment complaint brought against it is deficient in that the statute does not permit an apportionment complaint against an independent contractor when the landowner has a nondelegable duty to maintain the premises and is vicariously liable for the consequences of the independent contractor's tortious conduct. The apportionment plaintiffs have objected, arguing that the breach of a nondelegable duty does not bar an apportionment claim. They argue that under Gazo v. Stamford, 255 Conn. 245, 256, 765 A.2d 505 (2001), an independent contractor owes a direct duty to a person who is injured by the independent contractor's negligence, and therefore, that reasoning extends to a defendant landowner and property manager who seeks to bring the independent contractor into the case for apportionment purposes.
"[I]t is not a necessary implication of the nondelegable duty doctrine that the contractor to whom the performance of the duty has been assigned may not, under appropriate circumstances, also owe the same duty to a party injured by its breach . . . Instead, we view the nondelegable duty doctrine as involving a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor. That vicarious liability, however, does not necessarily preclude liability on the part of the independent contractor." (Citations omitted.) Gazo v. Stamford, supra, 255 Conn. 256.
"Under the general rule, an employer is not liable for the negligence of its independent contractors . . . One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to `exercise ordinary care for the safety of such persons.' . . . The nondelegable duty doctrine is, therefore, an exception to the rule that an employer may not be held liable for the torts of its independent contractors." (Citations omitted.) Gazo v. Stamford, supra, 255 Conn. 256-57.
"The very essence of the nondelegable duty doctrine, however, is that the property owner is fully liable to a plaintiff who has been injured as a result of a breach of a nondelegable duty regardless of whether the property owner actually is at fault or the degree of fault. When a property owner's liability to the plaintiff for the wrongful conduct of an independent contractor legally cannot be apportioned, then there is no reason to apportion fault between the property owner and the contractor in an apportionment proceeding." (Emphasis in original.) Smith v. Greenwich, 278 Conn. 428, 461, 899 A.2d 563 (2006). "[W]hen one party is vicariously liable for another party's conduct, the appropriate remedy for an innocent party who has been held vicariously liable is a claim for indemnity rather than for apportionment." Id., 462.
The proper remedy for the would-be apportionment plaintiffs is a claim for indemnity rather than apportionment. As the court noted in Smith, "requiring the defendant to bring such an action would not constitute an additional burden on the courts, because defendant property owners can assert third-party claims for indemnification against contractors, thus enabling the indemnification claims to be tried in the same action as the plaintiff's original claims." Smith v. Greenwich, supra, 278 Conn. 463. Based on the principles enunciated by the Supreme Court in Smith, the court grants the apportionment defendant's motion to strike the apportionment complaint.