Opinion
LLICV1606014155S
07-17-2017
Frances Lanzara v. Henry M. Osowiecki & Sons, Inc.
UNPUBLISHED OPINION
RULING ON MOTION FOR SUMMARY JUDGMENT
Carl J. Schuman, Judge, Superior Court.
The principal question in this summary judgment motion is whether an original defendant can maintain an otherwise valid apportionment complaint against an apportionment defendant when the original plaintiff cannot plead over its complaint because, in this case, the apportionment defendant is a housing authority and the original plaintiff failed to provide the housing authority with timely notice of the claim as required by statute. The court answers the question in the affirmative.
I
In September 2016, the plaintiff, Frances Lanzara, filed suit for personal injuries against the original defendant, Henry Osowiecki & Sons, Inc. The plaintiff alleged that on February 13, 2015 she slipped and fell as a result of the defendant's negligence in removing snow and ice from the premises at the Green Manor Apartments in Thomaston. In November 2016, the defendant (hereinafter the apportionment plaintiff) filed an apportionment complaint against the Thomaston Housing Authority (housing authority or apportionment defendant) alleging that the latter negligently maintained control of the area where the plaintiff fell. In December 2016, the plaintiff amended her complaint to plead over against the housing authority. See Amended Complaint.
The housing authority now moves for summary judgment on the amended complaint on the ground that the original plaintiff failed to provide the housing authority with timely notice of the claim as required by General Statutes § 8-67. In addition, the housing authority moves for summary judgment on the apportionment complaint on the ground that the apportionment statutes, General Statutes § § 52-102b and 52-572h, do not permit apportionment when, as here, the plaintiff cannot recover from the apportionment defendant on the amended complaint. Both of these motions raise only questions of law. Accordingly, the court must decide whether the " moving party is entitled to judgment as a matter of law." Practice Book § 17-49.
II
The court first addresses the summary judgment motion against the original plaintiff. The housing authority relies on § 8-67, which requires that any person claiming injury at a housing authority may bring suit within two years, provided that " written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose." The plaintiff does not dispute that she failed to provide written notice in accordance with the statute. She argues that it is sufficient that the housing authority had actual notice of her injury as a result of a discussion with a claims representative.
Section 8-67 provides in relevant part: " Any person injured in person or property within boundaries of property owned or controlled by [a housing] . . . authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose."
The Appellate Court rejected this very argument in Fields v. Housing Authority, 63 Conn.App. 617, 619, 777 A.2d 752, cert. denied, 257 Conn. 910, 782 A.2d 133 (2001). Fields held that an injured pedestrian's conversations with the housing authority's employee and correspondence with its insurance company were not sufficient to satisfy § 8-67, even if those actions constituted actual notice. Id., 622-24. The plaintiff contends that the result in Fields is inequitable. The decisions of the Appellate Court, however, are binding on this court. See State v. Peeler, 321 Conn. 375, 441, 140 A.3d 811 (2016); State v. Fernando A., 294 Conn. 1, 97 n.21, 981 A.2d 427 (2009) (Palmer, J., dissenting). Given that the plaintiff raises no other argument in defense of her claim, the court grants summary judgment for the housing authority on the amended complaint filed by the plaintiff.
III
The more difficult question is whether the apportionment plaintiff can maintain its apportionment claim against the housing authority when, as here, the plaintiff cannot recover damages from the housing authority. The apportionment complaint seeks apportionment under General Statutes § § 52-102b and 52-572h. Because § 52-102b(a) explicitly refers to § 52-572h, the court begins its analysis with § 52-572h.
Section 52-102b(a) provides: " 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."
In Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), our Supreme Court explained the meaning of § 52-572h in a similar context. " Section 52-572h, which governs the apportionment of liability among multiple tortfeasors, provides in relevant part: '(c) . . . [I]f the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . . [Emphasis in Crotta opinion.] Thus, the language of § 52-572h(c) explicitly provides for apportionment of liability only among those parties from whom the plaintiff is entitled to recover damages. [Emphasis in Crotta opinion.] It is undisputed that, in the present case, the doctrine of parental immunity precludes the plaintiff from recovering damages from Crotta. Consequently, § 52-572h does not provide a basis for the defendants to assert a claim against Crotta for apportionment of liability in connection with his allegedly negligent supervision of the plaintiff." Id., 639.
As the court will explain, Crotta did not rely on § 52-102b. Section 52-102b(c), in relevant part, now explicitly provides for the same result: " 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."
The present case is comparable to Crotta because the original plaintiff here does not have a right of recovery against the apportionment defendant. Thus, if Crotta governs, the apportionment plaintiff cannot maintain its apportionment complaint in this case.
Crotta was originally filed in federal court in 1995, the year of enactment of § 52-102b, and certified to the Connecticut Supreme Court in 1998. See Id., 635; Viera v. Cohen, 283 Conn. 412, 424, 927 A.2d 843 (2007); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 25, 848 A.2d 418 (2004) (" it is apparent that the legislature intended § 52-102b to implement the right to apportionment that previously had been created in § 52-572h"). Perhaps for these reasons, Crotta arose solely under § 52-572h and did not cite § 52-102b.
The operative language of § 52-102b is different from that of § 52-572h. Section 52-102b(a) 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." In the present case, the apportionment plaintiff argues that the housing authority is, in the language of the statute, " 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."
This language is noteworthy because it provides for apportionment against a person or entity who " is or may be liable ." (Emphasis added.) General Statutes § 52-102b(a). In contrast, § 52-572h(c) allows for apportionment against " each party against whom recovery is allowed." (Emphasis added.) The difference in terminology is important. As the Supreme Court has explained: " [p]ursuant to § 52-102b(a), the demand for relief in an apportionment complaint seeks only an 'apportionment of liability.' 'Liability' refers to a legal obligation or responsibility; Black's Law Dictionary (6th Ed. 1990); whereas 'damages' refers to 'monetary compensation' for loss or injury. Id. The terms are not synonymous." Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 36. The same would seem to be true of the difference between " liability" and " recovery." Indeed, the Crotta court expressly linked " recovery" and " damages" as follows: " the language of § 52-572h(c) explicitly provides for apportionment of liability only among those parties from whom the plaintiff is entitled to recover damages ." (Emphasis added.) Crotta v. Home Depot, Inc., supra, 249 Conn. 639.
The issue in Lostritto v. Community Action Agency of New Haven, supra, 269 Conn. 10, was whether defendants in a personal injury case seeking to file an apportionment complaint alleging medical malpractice could seek an extension of time under General Statutes § 52-190a(a), which authorized an extension to obtain a certificate of good faith in a medical malpractice case in which a party seeks " to recover damages." The Supreme Court held that because an apportionment complaint does not seek to recover damages, § 52-190a(a) did not apply. Id., 35-38.
Thus, the apportionment plaintiff's argument is that § 52-102b(a) applies because the housing authority may be liable, or legally responsible, in whole or in part, for the injury in question, even if the plaintiff cannot recover damages from it. This argument has special application in a case involving noncompliance with the notice requirement of § 8-67 because, as the Fields Court specifically held, noncompliance with § 8-67 prevents recovery but not necessarily liability. See Fields v. Housing Authority, supra, 63 Conn.App. 621 (" In White v. Edmonds, 38 Conn.App. 175, 183, 659 A.2d 748 (1995), this court held that compliance with the notice provision of § 8-67 is not essential to a determination of liability, but concerns only whether the plaintiff has taken the proper steps to warrant recovery").
A possible obstacle to the apportionment plaintiff's efforts is that § 52-102b(a) expressly applies only to a " defendant in any civil action to which section 52-572h applies . . ." See footnote two of this opinion. As the Supreme Court has stated: " Indeed, by its own terms, § 52-102b operates only in conjunction with § 52-572h and its primary application is to effectuate the right to apportion liability." Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 25. Under the reasoning in Crotta, and based on § 52-572h(c) alone, the apportionment plaintiff in the present case could not maintain an apportionment complaint because it would not be a " civil action to which section 52-572h applies. "
However, § 52-572h does apply in a broader sense. The Supreme Court has explained that " 'a civil action to which section 52-572h applies, ' within the meaning of § 52-102b, means a civil action based on negligence." Allard v. Liberty Oil Equipment Co., Inc., 253 Conn. 787, 794-95, 756 A.2d 237 (2000). Because the present action sounds in negligence, it is " a civil action to which section 52-572h applies."
In Allard v. Liberty Oil Equipment Co., Inc., supra, 253 Conn. 798, the Supreme Court held that § 52-572h did not permit an apportionment complaint purportedly alleging negligence but actually sounding in product liability. Indeed, § 52-572h is entitled " Negligence actions. Doctrines applicable. Liability of multiple tortfeasors." See also General Statutes § 52-572h(o) (" Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556").
The issue remains complicated because § 52-102b conditions apportionment on liability while § 52-572h conditions apportionment on recovery. Although the legislature, in enacting § 52-102b, sought to " implement the right to apportionment that previously had been created in § 52-572h"; Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 25; it chose different language to do so and made apportionment dependant on liability rather than recovery. The question, of course, before the court " is not what the legislature actually intended, but what intention it expressed by the words that it used." (Citation omitted; internal quotation marks omitted.) Taravella v. Stanley, 52 Conn.App. 431, 439, 727 A.2d 727 (1999). The language that the legislature actually used in enacting § 52-102b conditions apportionment on liability. Because, as explained above, the apportionment defendant may have liability in this case, the apportionment plaintiff has a right to apportion this liability under § 52-102b, even if it could not apportion recovery under § 52-572h.
There are other differences between § § 52-102b and 52-572h that suggest that the legislature intended § 52-102b, rather than § 52-572h, to define the circumstances under which a defendant could file an apportionment complaint against a nonparty. Thus, § 52-102b(a) provides that a defendant may only file an apportionment complaint against " a person not a party to the action, " while § 52-572h(c) states that " each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share." (Emphasis added.) See Viera v. Cohen, supra, 283 Conn. 466 (Palmer, J., dissenting). If the reference in § 52-102b(a) to § 52-572h meant that apportionment complaints must comply in every way with § 52-572h, then it would be impossible to comply with the provision in § 52-102b(a) permitting an apportionment complaint only against a nonparty.
This case would be different if the apportionment defendant were immune from liability. In that event, § 52-102b(c) specifically provides that there can be no apportionment. See footnote 3 of this opinion. In that situation, the legislature has made a determination that the plaintiff should receive full compensation from the nonimmune defendant without reduction for apportionment. Viera v. Cohen, supra, 283 Conn. 436. In the present case, in contrast, the plaintiff created the problem by failing to provide statutorily-required notice to the housing authority. In this situation, the plaintiff has less entitlement to full recovery and the apportionment plaintiff should not have to pay more than its " fair share." Id. The apportionment plaintiff should have the opportunity to prove to the jury that the housing authority is " a person not a party to the action who is or may be liable . . . for a proportionate share of the plaintiff's damages"; General Statutes § 52-102b(a); even though, due to the plaintiff's own default, the plaintiff has no actual right of recovery against the housing authority. Accordingly, the court declines to enter summary judgment for the housing authority on the apportionment complaint.
The result here is not inconsistent with Viera v. Cohen, supra, 283 Conn. 412. In that case, the Court held that, when a plaintiff withdraws an action against a defendant without payment of a settlement or other consideration, there is no " release, settlement or similar agreement" that makes the defendant subject to apportionment by another defendant (or apportionment plaintiff) under § 52-572h. Although, as in the present case, the argument exists that the apportionment plaintiff should still have a remedy even if the original plaintiff could not recover from the apportionment defendant, it appeared that the apportionment plaintiff in Viera did not or could not file an apportionment complaint under § 52-102b(a) because the 120-day period for doing so under § 52-102b(a) had already expired. See Id., 467-68 (Palmer, J., dissenting.) The Court lamented that this " legislative gap leaves the defendant [or apportionment plaintiff] without recourse to obtain apportionment" and expressed the " hope that the legislature will be able to find a place on its busy agenda for inquiry into the consequences and the desirability of today's decision." (Internal quotation marks omitted.) Id., 442-43. Thus, the Viera Court appeared to believe that an apportionment plaintiff should have a remedy in the present situation, but was constrained by procedural requirements in that case.
For the foregoing reasons, the court grants the housing authority's motion for summary judgment against the plaintiff on the amended complaint but denies its motion for summary judgment against the apportionment plaintiff on the apportionment complaint.
It is so ordered.