Opinion
No. CV 09-5029882 S
July 15, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#115)
Facts and Procedural History
This action arises from the plaintiffs, Dennis McAuliffe's, fall on February 28, 2008. The plaintiff filed a three-count complaint against the town of Wallingford on June 17, 2009, alleging breach of statutory duties, negligence and nuisance. Subsequently, on October 21, 2009, the town of Wallingford filed an apportionment complaint, pursuant to General Statutes § 52-102b(a), against Joseph DiPalma. On January 29, 2010, the plaintiff filed a request for leave to amend and an amended complaint. In his amended complaint, the plaintiff added a fourth count alleging negligence against DiPalma, the apportionment defendant.
The apportionment defendant filed a motion to dismiss count four of the plaintiff's amended complaint, along with a memorandum in support, on March 12, 2010. The plaintiff filed his objection and memorandum in opposition on April 21, 2010. The apportionment defendant filed a reply on June 11, 2010. The plaintiff filed his surreply on June 22, 2010. The parties appeared for oral argument on June 28, 2010.
Discussion
The apportionment defendant argues that the fourth count of the plaintiff's amended complaint should be dismissed because, pursuant to § 52-102b(d), the plaintiff had sixty days from the return date of Wallingford's apportionment complaint to amend the complaint to assert a direct cause of action against him. The apportionment defendant claims that he is entitled to dismissal of count four because the plaintiff failed to file the amended complaint within this sixty-day period. The plaintiff counters that his claim against the apportionment defendant is timely because it was filed within the two-year statute of limitations in § 52-584. Specifically, the plaintiff argues that § 52-102b(d) creates a window for a plaintiff to file a claim against an apportionment defendant when that defendant is brought into the suit after the original two-year statute of limitations has passed. Because the plaintiff filed his amended complaint within the two-year statute of limitations, he argues that the sixty-day time period in § 52-102b(d) does not bar his claim.
Section 52-584, in pertinent part, states: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
A statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993). Decisions of the Superior Court have addressed claims by apportionment defendants as to the applicability of the time limitation contained in § 52-102b(d) by a motion to dismiss. See Schupp v. Golba, Superior Court, judicial district of New Haven, Docket No. CV 05 4005234 (February 15, 2006, Robaina, J.); Becker v. Cody, Superior Court, judicial district of Fairfield, Docket No. CV 97 0348815 (March 31, 1999, Nadeau, J.) ( 24 Conn. L. Rptr. 323). Therefore, the court will address the merits of the apportionment defendant's motion.
Section 52-102b(d) states: "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." The majority of decisions of the Superior Court have concluded that the sixty-day requirement in § 52-102b(d) is mandatory. See Ortiz v. Debbraccio, Superior Court, judicial district of New Haven, Docket No. CV 08 5019246 (August 26, 2009, Lager, J.) ( 48 Conn. L. Rptr. 423, 424-25); Kowalczyk v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 04 4000806 (September 11, 2006, Prescott, J.) ( 42 Conn. L. Rptr. 98, 100-01); Schupp v. Golba, supra, Superior Court, Docket No. CV 05 4005234; Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166813 (June 8, 2004, Matasavage, J.) ( 37 Conn. L. Rptr. 230, 231); Perazelli v. Tilcon Connecticut, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 99 0154903 (November 6, 2000, Rogers, J.); Becker v. Cody, supra, 24 Conn. L. Rptr. 324.
Of these decisions, the court notes that nearly all involved a plaintiff who filed an amended complaint both outside of the sixty-day period of § 52-102b(d) and outside of the two-year statute of limitations of § 52-584. See Kowalczyk v. New Milford Board of Education, supra, 42 Conn. L. Rptr. 99; Schupp v. Golba, supra, Superior Court, Docket No. CV 05 4005234; Demers v. Demers, supra, 37 Conn. L. Rptr. 231; Perazelli v. Tilcon Connecticut, Inc., supra, Superior Court, Docket No. CV 99 0154903. Nevertheless, in Ortiz v. Debbraccio, supra, 48 Conn. L. Rptr. 424, the plaintiff's revised complaint, which included an additional count against the apportionment defendant, was filed within the two-year statute of limitations of § 52-584. Despite this, the court sustained the apportionment defendant's objection to the plaintiff's revised complaint on the basis that it was filed outside the sixty-day period of § 52-102b(d). Id., 425. The court reasoned: "There is no rational reason for the clause `within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section' other than to set forth a mandatory time limit for asserting a direct claim." (Citation omitted.) Id., 424.
Other decisions of the Superior Court have acknowledged, however, that § 52-102b(d) is an extension of the statute of limitations. "The function of § 52-102b(d) is thus not to establish a special period of limitations for a new statutory cause of action, which must be strictly enforced as a jurisdictional bar to untimely claims, but rather to extend by the limitations period for the assertion of a negligence claim against any person who becomes an apportionment defendant in [a] pending negligence action at or near the expiration of the general limitations period for bringing such claims. By extending the limitations period for the assertion of a negligence claim against an apportionment defendant for sixty days after the return date on the apportionment complaint, § 52-102b(d) ensures that any plaintiff whose claim for damages is subject to reduction by a last-minute claim for apportionment does not lose the right to recover 100% of her proven damages from all persons, including the apportionment defendant, whom her jury finds to have proximately caused those damages by their negligence." Branford v. Commercial Flooring Concepts, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0826299 (March 10, 2004, Sheldon, J.) ( 36 Conn. L. Rptr. 673, 674).
"[T]he sixty-day period afforded a plaintiff by § 52-102b(d) was to enable the plaintiff to bring such a claim against an apportionment defendant even though the underlying statute of limitations may have expired, but not to preclude such claims when filed after the sixty-day period but prior to the expiration of the original statue of limitations." (Emphasis in original.) Ciaburri v. Shaws Supermarket, Superior Court, judicial district of New Haven, Docket No. CV 00 0442894 (May 15, 2001, Thompson, J.). "A complete reading of § 52-102b reveals no legislative words or intent to prevent a plaintiff from bringing independent causes of action against individual defendants at any time within the statute of limitations . . . The absurd result of a mandatory reading [of the statute] would be to artificially shorten the statute of limitations. It is patent to this court, part of the drafting/debate process for this statute, that § 52-102b(d) was to be an expansive act, lengthening the normal statute of limitations. The purpose of the statute was to allow a plaintiff to plead after the statute of limitations expired if the plaintiff became aware of a previously unknown party who should be a defendant. The applicable statute was meant to expand the statute of limitations if necessary. There never was and is not an interest to shorten the statute of limitations." (Emphasis in original.) Griffin v. Arduini, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 00 0377255 (March 30, 2001, Brennan, J. T.R.) ( 29 Conn. L. Rptr. 594, 595-96); see also Butlein v. 1220 WR Associates, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 00 03763535 (May 30, 2001, Skolnick, J.) (plaintiff's direct cause of action against apportionment defendant was timely as it was filed within the time period in § 52-584); Boland v. Frye, Superior Court, judicial district of New Britain, Docket No. CV 97 0483093 (October 15, 1998, Leheny, J.) ("The legislature provides the plaintiff with this small window of opportunity in which to file claims against the apportionment defendant because the plaintiff must be afforded an opportunity to protect herself and her interests").
Here, the plaintiff filed his amended complaint, which included a direct count against the apportionment defendant, on January 29, 2010. As the plaintiff's fall occurred on February 28, 2008, his direct action against the apportionment defendant is timely filed within the two-year period of § 52-584. The court agrees with the line of Superior Court decisions that hold that the legislature intended § 52-102b(d) to provide a plaintiff with a sixty-day window to amend his or her complaint to include an apportionment defendant when the statute of limitations has already expired. Because the plaintiff's action against the apportionment defendant was filed within the statute of limitations, § 52-102b(d) is inapplicable in the present case. To hold otherwise would require this court to read § 52-102b(d) as a statute that shortens or cuts off the applicable statute of limitations period, rather than one that extends it. The court is of the opinion that such an interpretation defies the legislative intent of the statute, its remedial purpose and common sense.
Conclusion
Accordingly, for the foregoing reasons, the apportionment defendant's motion to dismiss is hereby denied.