Opinion
No. CV-05-4009467 S
May 10, 2006
MEMORANDUM OF DECISION ON REQUEST TO REVISE
This case has caused the court a great deal of difficulty involving as it does an interpretation of §§ 10-21 and 10-22 of the Practice Book which permit, under specified circumstances, a joinder of certain causes of action in one complaint. It is first necessary to set forth the facts of the complaint. In the first count the Administratrix of the Estate says that Mr. Lewis was a passenger in a van owned by the defendant Transit District on April 2, 2003 and was being transported from his home to the Veterans Administration hospital. As the vehicle turned a corner his wheelchair flipped backward allegedly causing Lewis severe injury. It is further alleged that the cause of the injury was the failure to secure the wheelchair inside the van, failure to operate the van in such a manner that the wheelchair would not flip over and failure to equip the van with an apparatus so the wheelchair would not flip over.
The second count alleges that Mr. Lewis was being driven to the same location by an agent of the defendant on May 13, 2003 and the wheelchair flipped over causing injury to Lewis for the very same reasons alleged in the first count.
The defendant then filed a request to revise asking that one of the two counts be deleted as two "separate and distinct tort actions" are improperly combined in one complaint; two accidents occurring on different dates are alleged. No memorandum of law accompanies the request to revise and procedurally speaking it is not properly before the court, since the proper vehicle for the defendant to raise its claim was a motion to strike under subsection (4) of Practice Book § 10-39. A request to revise should not be used to raise substantive issues for one very good reason at least — it does not have to be accompanied by a memorandum of law. In any event in opposing the request the plaintiff has discussed the substantive issues raised and the court will try to address the problem.
In the early case of Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551 (1893) the predecessor to Practice Book § 10-21 was described as an ameliorative statute. The court said the word "transaction" was not taken out "of a legal vocabulary of technical terms but comes from the common speech of men (and women)." Id., p. 561.
Here the same parties are involved and the mechanism causing injury is exactly the same. The accident and injury occurred on two separate dates but even if the two matters were severed it would appear to be true that in the trial of the second accident evidence of the first accident could be introduced into the trial to show notice.
What if separate actions had been brought, would not consolidation be in order? Section 9-5 of the Practice Book provides that "whenever there are two or more separate actions which should be tried together, the judicial authority may, upon the motion of any party or upon its own motion, order that the actions be consolidated for trial." Horton Knox commenting on Practice Book § 9-5 say that "generally, it is appropriate to consolidate where the actions arise out of the same transaction or involve identical parties." Here identical parties are involved, the mechanism of injury is the same, and evidence of how the accident occurred in the earlier incident in all likelihood can be introduced into the trial of the second case.
Admittedly reliance on § 9-5 involves after the fact reasoning but it does not seem to the court that under the circumstances of this case Practice Book § 10-21 should be defined in such a way that one of the counts should be deleted or stricken. What would this result in — filing a second suit followed by a motion to be consolidated that would be granted?
A well reasoned case cited by the plaintiff indicates, to this court at least, why one of the counts in this complaint need not be deleted and the dilemma faced by trial courts in trying to interpret Practice Book § 10-21 and its appropriate application.
In Bailey v. Thomas, 24 Conn. L. Rptr. 687 (1999) Judge Wagner granted a motion to strike two counts of a four-count complaint. Injuries were sustained in two separate auto accidents occurring one hour apart; there were two separate sets of defendants and the court struck the third and fourth counts against one of the defendants. Clearly the court had no alternative but to grant the motion. However, its reasoning underlines the problem presented in this area and, at least for this court, the problem presented by the case now under discussion. Judge Wagner said in reaching the result he did that:
In Connecticut it has long been held that distinct causes of action may not be joined in one complaint unless they arise out of the same transaction or transactions connected with the same subject of action and unless they affect the two different groups of defendants, are in no way connected with each other, form two separate bases of recovery and relate to and depend upon two separate breaches of duty. In Myers v. Long, supra, 23 Conn.Sup. 93-94 Judge Cotter sustained a demurrer to claims brought by two separate plaintiffs against two separate defendants for injuries sustained in immediately successive automobile accidents on the basis of misjoinder.
But then he tried to distinguish a case written by Judge Lager, Rivera v. Ingentio, 20 Conn. L. Rptr. 451 (1997), a lead paint case. He distinguished this lead paint case from the case before him by saying: "the court in Rivera placed substantial emphasis on the unique aspects of lead poisoning cases where the lack of joinder might greatly increase lead paint litigation, which may often involve successive exposures in separate residences, the owners of which are commonly cited in anyway for purposes of apportionment. These special circumstances of lead poisoning cases are not applicable to the separate automobile accidents in this case, where separate trials would not involve substantial duplication of effort for the parties or the court, since evidence, and testimony would necessarily be different and involve different parties, and the alleged injuries would be unrelated, although possibly similar and difficult to separate."
The difficulty is that if the rigid reading is given to the "same transaction" language relied upon in Bailey to support its motion to strike, the common sense approach of the court in Rivera cannot be right despite the existence of so-called "special circumstances" presented by lead paint cases. Both courts seem to recognize that a rigid reading is not always mandated.
Just so the particular circumstances of this case persuade the court to sustain the objection to the request to revise.