Opinion
No. 396218
July 15, 1998
MEMORANDUM OF DECISION
The issue raised by the motion to dismiss before the court is whether the 120 period following the return day within which a defendant may serve an apportionment complaint on a non-party, pursuant to General Statutes § 52-102b, is jurisdictional. This court holds that the 120 day period is neither jurisdictional nor mandatory.
General Statutes " Sec. 52-102b. Addition of person as defendant for apportionment of liability purposes. (a) 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. 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 defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. 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.
"(b) The 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. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.
"(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
"(d) Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.
"(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
"(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action.
"(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section."
On January 15, 1997, the plaintiff, Samantha Ketchale, commenced this action against the defendants Edmund Unger and Barbara Unger. The action was made returnable on February 25, 1997. The amended complaint alleges that the plaintiff, Samantha Ketchale, was a passenger in a motor vehicle owned and operated by Marilyn Joyce. As the Joyce vehicle was exiting a private driveway on S. Hoop Pole Road, it was struck by a vehicle operated by the defendant Edmund Unger and owned by the defendant Barbara Unger. As a result of the collision, the plaintiff claims that she sustained personal injuries. In the first count of the amended complaint, the plaintiff alleges that the collision was caused by the negligence of the defendant Edmund Unger. In the second count, the plaintiff alleges that the collision was caused by the wilful, wanton and reckless actions of the defendant Edmund Unger.
The municipality in which the collision occurred is not disclosed in the complaint.
The defendants Edmund and Barbara Unger appeared and answered the complaint. On February 13, 1998, the Ungers served an apportionment complaint on Marilyn Joyce alleging that the collision and the plaintiff's injuries were caused by Joyce's negligence. Anticipating an issue as to the timeliness, the defendants alleged that they brought their apportionment complaint pursuant to General Statutes § 52-592, the accidental failure of suit statute.
The defendants had served an apportionment complaint on Joyce previously but had not returned the complaint to court.
General Statutes " Sec. 52-592. Accidental failure of suit; allowance of new action. (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.
"(b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action.
"(c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited.
"(d) The provisions of this section shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error."
Joyce has moved to dismiss the apportionment complaint, alleging that it was not brought within the time period prescribed by General Statutes § 52-102b. A motion to dismiss is the proper vehicle for challenging the court's jurisdiction. Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 625, 642 A.2d 1186 (1994).
Joyce's claim is based on the principle that "[w]here a cause of action has been created by statute, strict compliance with the prescribed procedure is essential. See Main v. North Stonington, 127 Conn. 711, 712, 16 A.2d 356 (1940). `The general rule is that 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.' DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916)." Rana v. Ritacco, 236 Conn. 330, 336 n. 4, 672 A.2d 946 (1996). Joyce's argument is flawed for two reasons.
First, General Statutes § 52-102b did not create any cause of action. "Prior to October 1, 1986, this state adhered to the rules of joint and several liability with no contribution among joint tortfeasors." Donner v. Kearse, 234 Conn. 660, 666-667, 662 A.2d 1269 (1995). This common law rule was generally abolished by the enactment of the Connecticut Tort Reform Act, No. 86-338, § 3 of the 1986 Public Acts; Id., 667; Biro v. Hill, 214 Conn. 1, 6 570 A.2d 182 (1990); nine years before the enactment of General Statutes § 52-102b. The rule requiring strict compliance with time requirements in a statute creating a cause of action which did not exist at common law has never been applied to a statute containing time requirements for a cause of action which, while not existing at common law, was statutorily created years earlier. See Rana v. Ritacco, supra, 236 Conn. 330 (statute providing for employer intervention in employee's third party action); Main v. North Stonington, supra, 127 Conn. 712 (highway defect statute); DeMartino v. Siemon, supra, 90 Conn. 528 (statute creating action for injuries resulting in death); Fresta v. Conn. Mason Contractors, Inc., 43 Conn. App. 732, 737, 685 A.2d 698 (1996) (transfer of workers' compensation claim to second injury fund); Johndrow v. State, 24 Conn. App. 719, 722, 591 A.2d 815 (1991) (statute providing for employer intervention in employee's third party action); Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384, 544 A.2d 673 (1988) (same); Police Department v. Giordano, 3 Conn. App. 450, 452, 488 A.2d 1293 (1985) (same); Norwalk v. Van Dyke, 33 Conn. Sup. 661, 664, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976) (same).
Second, the 120 day period in General Statutes § 52-102b(a) is directory, not mandatory. "In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute's essential purpose. [ Hall Manor Owner's Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989)]. The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory. Id. . . .' Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 446, 685 A.2d 670 (1996)." United Illuminating Co. v. New Haven, 240 Conn. 422, 465-66, 692 A.2d 742 (1997).
First, although the statute uses the word "shall," there is no language expressly invalidating an apportionment complaint that is brought beyond the 120 time period. See Doe v. Statewide Grievance Committee, 240 Conn. 671, 682, 694 A.2d 1218 (1997); Angelsea Productions, Inc. v. Commission on Human Rights Opportunities, 236 Conn. 681, 695, 674 A.2d 1300 (1996); Caron v. Inland Wetlands Watercourses Commission, 222 Conn. 269, 273-74, 610 A.2d 584 (1992); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975).
Second, the requirement that the apportionment complaint be brought within 120 days of the return date is stated in affirmative terms unaccompanied by negative words. See Stewart v. Tunxis Service Center, 237 Conn. 71, 78, 676 A.2d 819 (1996); Katz v. Commissioner of Revenue Services, supra, 234 Conn. 617-18); CT Page 7908 Winslow v. Zoning Board, 143 Conn. 381, 387-88, 122 A.2d 789 (1956); Harhay v. Board of Education, 44 Conn. App. 179, 184, 687 A.2d 1313 (1997); Merrell v. Southington, 42 Conn. App. 292, 295-96, 679 A.2d 404, cert. denied, 239 Conn. 98, 682 A.2d 1003 (1996); Brown v. Smarrelli, 29 Conn. App. 660, 664, 617 A.2d 905 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993); Shelby Mutual Ins. Co. v. Evans, 20 Conn. App. 1, 5, 563 A.2d 1041 (1989); Rowe v. Godou, 12 Conn. App. 538, 542, 532 A.2d 978 (1987), rev'd on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988); State ex rel, Perry v. Raacke, 19 Conn. Sup. 248, 252, 111 A.2d 37 (1953).
Third, elsewhere in the statute the legislature did employ negative words. See General Statutes § 52-102b(c) ("No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h."); General Statutes § 52-102b(g) ("In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section."). This evidences that when the legislature used negative words and when it omitted to use such words, it did so with deliberation and discrimination. See Bruttomesso v. Northeastern Conn. Sexual Assault Crisis Services, Inc., 242 Conn. 1, 13, 698 A.2d 795 (1997); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986); Spates v. Robinson, 179 Conn. 381, 384, 426 A.2d 776 (1979); Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978).
Fourth, subsection (b) of General Statutes § 52-102b provides, inter alia, that "[i]f the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitations shall be a defense or bar to such claim. . . ." Thus, if an apportionment complaint is not served with the prescribed time period, the statute of limitations may be a defense to such a claim. That there may be a statute of limitations defense to such a claim, however, strongly suggests that the 120 day time period itself is not mandatory and not jurisdictional. "[E]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one [part] to be construed." (Internal quotation marks omitted.) Sears, Roebuck and Company v. Board of Tax Review, 241 Conn. 749, 761-62, 699 A.2d 81 (1997).
The court recognizes that subparagraph (f) of § 52-102b provides: "This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action." That the statute provides the exclusive "means," that is, procedure, for adding an apportionment defendant does not, in light of the application of the foregoing tests, militate that the 120 day period is mandatory. Prior to the enactment of § 52-102b there was "a split in authority among the superior courts as to the proper method to bring additional parties into the action for apportionment." Stropparo v. Woodlot Associates, Superior Court, judicial district of New London at New London, No. 521379 (Jan. 12, 1995) ( 13 Conn. L. Rptr. 287); accord, Sheehy v. Bic Corporation, Superior Court, judicial district of New Haven, No. CV92 0328505S (Dec. 15, 1992) ( 8 C.S.C.R. 100). Subparagraph (f) underscores that this question of method is legislatively settled.
This court concludes that the 120 day period in General Statutes § 52-102b(a) is directory and is designed to avoid the filing of eve of trial apportionment complaints that would delay the trial or pretrial disposition of the case. The time period, therefore, is literally "designed to secure order, system and dispatch in the proceedings." This conclusion is further buttressed by the fact the 120 day time period runs not from a transactionally fixed fact, such as the date of the alleged negligence or the accrual of the cause of action, but from an item arbitrarily selected by the plaintiff's lawyer, the return date. Finally, there is no evidence in the legislative history of General Statutes § 52-102b that the 120 day time period within which a defendant may bring an apportionment complaint is mandatory. See 38 H.R. Proc., Pt. 9, 1995 Sess., pp. 3266-3276; 38 Sen. Proc., Pt. 8, 1995 Sess. pp. 2559-2560, 2606-2608; Connecticut Joint Standing Committee Hearings, Judiciary Committee, Pt. 6, pp. 1706, 1713-15, 1735-39, 1752-57, 1778, 1780, 2019-2022, 2026-27, 2121-22.
This court recognizes that other judges of this court have held that the 120 time period in General Statutes § 52-102b(a) is mandatory. For the foregoing reasons, I disagree and hold that it is not. The motion to dismiss is denied.
See Winiarski v. Hall, Superior Court, Judicial District of Hartford-New Britain at Hartford, No. CV96 0566277 S (Dec. 19, 1997); Witkin v. Schettino, Superior Court, Judicial District of Stamford, No. CV 950149015S ( 19 Conn. L. Rptr. 226) (April 1, 1997); St. Paul Fire Marine Insurance Co. v. Genesee Management, Inc., Superior Court, Judicial District of Danbury No. 322290 (1996); Stroud v. Pfeffer, Superior Court, Judicial District of Fairfield, No. 324804 ( 16 Conn. L. Rptr. 403) (1996).
Because of this disposition, it is unnecessary to determine whether the accidental failure of suit statute, General Statutes § 52-592, applies to apportionment complaints brought pursuant to General Statutes § 52-102b.
Bruce L. Levin Judge of the Superior Court