Opinion
No. CV03 0195032
March 1, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE CROSS CLAIM (#116)
On May 6, 2003 the plaintiff, Denise Gagne, filed a four-count complaint against the defendants, Jeffrey Dezso, Theodor's Inc. (Theodor's), Maria Lockwood, and Arthur Arnold, respectively. The action arises out of injuries and losses the plaintiff allegedly sustained as a result of a motor vehicle collision on May 17, 2001. The plaintiff alleges that she was a front-seat passenger when the vehicle in which she was riding, which was driven by Jeffrey Dezso and owned by Theodor's, collided with a vehicle driven by Lockwood and owned by Arnold. The plaintiff asserts negligence claims against each defendant.
On August 29, 2003, the plaintiff withdrew her claim against Theodor's. Lockwood and Arnold filed a joint answer on September 8, 2003, as well as a cross claim against their remaining codefendant, Jeffrey Dezso, the plaintiff's host driver. In their cross claim, Lockwood and Arnold allege that if the plaintiff sustained any injuries or losses, they were proximately caused, either in whole or in part, by Jeffrey Dezso's negligence. Because of Jeffrey Dezso's alleged negligence, Lockwood and Arnold seek apportionment of liability for any damages the plaintiff may be awarded.
On September 29, 2003, the plaintiff filed motion #116 to strike Lockwood and Arnold's cross claim. "A motion to strike may be filed when a party wishes to contest the legal sufficiency of the allegations of a complaint, including a cross-claim, to state a claim upon which relief may be granted." Rotini v. Scinto, Superior Court, judicial district of Fairfield, Docket No. CV 01 0381052 (January 14, 2003, Wolven, J.). "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleading at issue]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "The court must construe the facts in the [pleading] most favorably to the [nonmovant]." (Internal quotation marks omitted.) Id.
Appearing on the same short calendar is a motion (#118) by the plaintiff to strike an apportionment complaint. This motion is addressed in a separate memorandum of decision filed this date.
In support of her motion to strike the cross claim, the plaintiff argues that because General Statutes § 52-572h(b) provides for allocation of damages between all defendants according to their respective shares of negligence, there is no need for a defendant in a negligence action to bring a separate apportionment complaint against a codefendant. In opposition to the plaintiff's motion, Lockwood and Arnold argue that the plaintiff lacks standing to move to strike their cross claim. Specifically, they argue that because Jeffrey Dezso, the cross claim defendant, is already a party to this action, the plaintiff cannot claim prejudice as a result of the cross claim. In addition, Lockwood and Arnold argue that the cross claim is necessary to protect their interests if the plaintiff withdraws her claim against Dezso without releasing him, as she has already done with regard to Theodor's.
General Statutes § 52-572h provides in relevant part:
(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person . . . to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section . . .
(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person's percentage of negligence . . ."
(Emphasis added.)
The plaintiff contends that she has standing because if the cross claim is not stricken, the potential amount of a jury award may be reduced, thereby causing her injury. The plaintiff also argues that because General Statutes § 52-572h mandates a specific approach to apportionment, any other attempt to address apportionment is barred.
Before the court addresses the plaintiff's arguments, it must first determine whether she has standing to move to strike the cross claim, to which she is not a party. "When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . [S]tanding is] ordinarily held to have been met when a complainant makes a colorable claim of direct injury he . . . is likely to suffer . . ." (Citation omitted; internal quotation marks omitted.) Malerba v. Cessna Aircraft Co., 210 Conn. 189, 192, 554 A.2d 287 (1989). In Malerba, the plaintiff brought an action against the defendant aircraft manufacturer and sought damages for injuries he sustained in an airplane accident. Cessna filed a third-party complaint pursuant to Practice Book § 10-11 against both the aircraft's owner and its mechanic, and the plaintiff filed a motion to strike the third-party complaint in its entirety. Id., 190-91. The trial court granted the motion. Id., 191.
Upon appeal our Supreme Court held that the plaintiff had standing to challenge the sufficiency of the third-party complaint because the addition of the two defendants created at least a colorable claim of a likelihood of injury to the plaintiff. Id., 192-93. The court stated: "It is apparent that Practice Book § [10-11] arms a third party defendant with the full panoply of procedural options available to address not only the claim of the third party plaintiff but also the claim of the original plaintiff against the original defendant. The addition of two defendants with perhaps greater insights as to both the factual and legal ramifications of the original cause of action creates at least a colorable claim of a likelihood of injury to the plaintiff's cause of action. This being the case, we conclude that the plaintiff had standing to challenge the sufficiency of the third party complaint." Id., 193.
In support of her argument that she has standing, the plaintiff in the present case relies on Bialik v. Village at Brookfield Commons, Ltd. Partnership, Superior Court, judicial district of Danbury, Docket No. CV 02 0346730 (August 26, 2003, Upson, J.) ( 35 Conn.L.Rptr. 324). In that case the trial court held that the plaintiff there had standing to challenge an apportionment complaint that brought new parties into the action because "[t]he existence of an apportionment defendant has a potentially significant impact on [a] plaintiff's right and ability to satisfy a judgment." Id., 325.
The plaintiff's reliance on Bialik is not persuasive. Both Malerba and Bialik are distinguishable from the present case because the existing defendants in those cases commenced complaints against entities that were not already parties. It was the addition of the new third-party defendants that created the colorable claims of direct injury to the plaintiffs in those cases. The apportionment complaint in Bialik created a risk of a direct injury to the plaintiff because the determination of proportionate shares of liability between multiple tortfeasors, pursuant to General Statutes § 52-572h, could impact the plaintiff's recovery of damages.
In the present case, however, the cross claim defendant, Jeffrey Dezso, was originally named as a defendant in the plaintiff's complaint, and was therefore already a party whose proportionate share of damages would have been calculated pursuant to General Statutes § 52-572h. Consequently, the cross claim does nothing to change Jeffrey Dezso's status with respect to the plaintiff. The cross claim is a nullity as to the plaintiff because it cannot jeopardize any potential damages she may receive.
Because the plaintiff has failed to demonstrate at least a colorable claim of injury, she does not have standing to bring the pending motion to strike the cross claim. Consequently, the plaintiff's remaining arguments need not be addressed and her motion to strike the cross claim is denied.
So Ordered.
William B. Lewis, Judge.