Opinion
CV126008771
11-24-2015
Craig Lower v. McKinney Mechanical Contractors
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THIRD-PARTY DEFENDANT CARRIER CORPORATION'S MOTION TO STRIKE (#131)
Elpedio N. Vitale, J.
The third-party defendant, Carrier Corporation (" Carrier"), moves pursuant to Practice Book § 10-39 to strike the First Count of McKinney Mechanical Contractors (" McKinney") third-party complaint dated June 26, 2015. Carrier alleges that the negligence claim brought in said count is barred by the statute of limitations. Carrier argues that McKinney's third-party complaint is dated June 26, 2015 and was filed four and a half years after the subject incident. In addition, Carrier argues that it was filed two and a half years after the December 11, 2012 return date of the original action. Therefore, according to Carrier, McKinney's allegations do not state a claim as the deadline had expired for a negligence claim or an apportionment complaint against Carrier.
McKinney objects and asserts that a " third-party complaint may be brought at any time before trial." Each party submitted a memorandum, and oral argument was heard on November 9, 2015.
Discussion
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) America Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). The court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120.
The motion to strike requires no factual findings by the court. Broadnax v. New Haven, 270 Conn. 133, 851 A.2d 1113 (2004). " In determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011).
" If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike"; Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991); but " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).
" The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint. A 'speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on motion to strike, court cannot resort to information outside of complaint).
The court begins with a brief discussion of third-party practice and apportionment of liability principles. Third-party practice, which is rooted in General Statutes § 52-102a(a), permits a defendant to implead a nonparty who may be liable to that defendant for damages incurred in the underlying action. Section 52-102a(a) provides in relevant part: " A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." If [a] defendant [believes] that a nonparty was responsible for some or all of the plaintiff's injuries it [is] his responsibility to implead that nonparty." Bradford v. Herzig, 33 Conn.App. 714, 724, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212, (1994). " Third-party practice is procedural and does not create, abridge, enlarge or modify the substantive rights of any litigant, but where there is a substantive basis for a right to reimbursement or indemnity, the rule expedites the presentation, and, in some cases, the accrual of such rights." Savings Bank of Manchester v. Kane, 35 Conn.Supp. 82, 88, 396 A.2d 952 (1978). Apportionment of liability is rooted in General Statutes § 52-102b(a), which permits " [a] defendant in any civil action [to] serve a writ, summons and complaint upon a person not a party to the action who is or may be liable . . . for a proportionate share of the plaintiff's damages . . ." Section 52-102b(a) also provides that an apportionment complaint " shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint." Section 52-102b(a) establishes a limit of 120 days from the return date specified in the original complaint within which defendants may serve an apportionment complaint on other persons who are not parties to the action, and who are or may be liable for a proportionate share of the plaintiff's damages." Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524, (2007).
Generally, " [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389, (1993). " In two limited situations, however, [the court] will allow the use of a motion to strike to raise the defense of the statute of limitations. The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer . . . The second is 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." (Citation omitted; internal quotation marks omitted.) Id., 239-40. A claim brought pursuant to General Statutes § 52-102b(a) falls within this second exception. See Jones v. Chapel Square Mall of New Haven, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 423606 (February 1, 2000, Alander, J.).
The Connecticut Supreme Court has addressed the question of whether the 120-day time limitation contained in subsection (a) of the same statute is mandatory or directory. In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), the Supreme Court construed as mandatory the limitation in § 52-102b(a) that requires a defendant to serve an apportionment complaint within one hundred twenty days of the return date specified in the plaintiff's original complaint, " absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Internal quotation marks omitted.) Id., 35-36. In reaching this conclusion, the Supreme Court relied heavily on the fact that " § 52-102b created rights that did not exist at common law [and, as a result] the statute's 120-day time limitation is a substantive limitation on the right to apportionment . . ." Id., 26.
Given the undisputed chronology of the pleadings at issue, the Motion to Strike the First Count of the Third-Party Complaint is granted.