Opinion
No. CV 05 5000143 S
March 1, 2007
MEMORANDUM OF DECISION
The defendants, Tina Provencher and Kevin Provencher, request permission to amend their previously amended answer by adding a counterclaim which asserts that the plaintiff, Emile Ouellette, is liable to the defendants for negligently causing personal injury and property damage as a result of the same motor vehicle accident which is the basis of the plaintiff's complaint against the defendants. The plaintiff opposes this request on the ground that the two-year limitation to bring such action set by General Statutes § 52-584 had expired before this request was filed.
The pertinent procedural history of this litigation is as follows. The plaintiff began this lawsuit against the defendants on November 8, 2005. The motor vehicle accident at the center of the case occurred on December 17, 2004.
The defendants filed the original answer on December 30, 2005. This answer lacked any special defenses or counterclaims. On January 10, 2006, the defendants filed a purported amended answer but had never obtained written consent nor received leave of the court to do so as required by Practice Book § 10-60(a). The court regards this ersatz amended answer as a nullity.
On January 24, 2006, however, the defendants did request permission of the court to amend the original answer. The plaintiff never objected to this request which, therefore, caused the amended answer to be deemed to have been filed by consent by virtue of Practice Book § 10-60(a)(3). This amended answer added a special defense of contributory negligence, but still contained no counterclaim. The plaintiff has never replied to this answer and the special defense set forth therein. Consequently, the pleadings in this case remain open at present.
On December 13, 2006, the defendants filed, without consent or leave of the court, a freestanding "counterclaim" alleging that the plaintiff negligently caused the accident which resulted in injury and property damage. The court struck this purported pleading on February 26, 2007.
The plaintiff himself, on January 8, 2007, filed a request to amend the complaint to add common-law and statutory recklessness counts against the defendants. The defendants have objected to this request which has yet to be claimed for adjudication.
On January 31, 2007, the defendants filed a request for leave to amend their answer to add the counterclaim described above. The plaintiff objects to this request, and this dispute is the subject of this decision.
The plaintiff contends that the two-year time limit for negligence claims under § 52-584 had passed when this second request to amend the answer was filed in January 2007. Unquestionably, if the two-year limit controls, this request comes too late since the accident happened on December 17, 2004.
However, the defendants argue that this proposed counterclaim falls within the express exception provided in § 52-584 which allows a defendant to interpose a counterclaim, based on negligence, "anytime before the pleadings in such action are finally closed." The defendants assert that, because the plaintiff never replied to the special defense of the first amended answer, the pleadings were never "finally closed," and they are, therefore, within the counterclaim exception of § 52-584.
The plaintiff, on the other hand, responds that the pleadings were closed when the defendants filed their original answer in December 2005, which answer had no special defense. In the plaintiff's view, once the pleadings were closed in December 2005, the defendants were forever foreclosed from utilizing the counterclaim exception of § 52-584 despite the fact that the pleadings were reopened by the amended answer which was filed by consent less than a month later in January 2006.
Thus, this request for leave to amend the answer, requires the court to determine what is meant by the phrase "finally closed" in § 52-584. In Seletsky v. Roy, 23 Conn.Sup. 139 (1961), Judge Harry Lugg observed that, as of 1961, "the intendment of § 52-584" as to when pleadings are, "finally closed" remained undecided. Id., 144. This court's research discloses no appellate level decision clarifying this issue.
In the Seletsky case, supra, the trial court noted that the defendant, who was seeking permission to amend the answer to add a counterclaim, clearly acknowledged that the pleadings were previously closed because that same party had filed a jury claim predicated on the closure of the pleadings. Id., 145. That court held that the mere procedural possibility of a later amendment which might necessitate the reopening of the pleadings was insufficient to undermine the finality of the closed pleadings and to invoke the counterclaim exception of § 52-584. Id., 144-45. "To allow that [circular] argument to prevail . . . would be to reduce the Statute of Limitations . . . to a meaningless pulp." Id.
The procedural posture of the present case is quite different from that which existed in Seletsky v. Roy, supra. Here, the parties never treated the pleadings as fully closed. The plaintiff never objected to the defendants' request to amend their answer to add a special defense. The plaintiff never replied to that amended answer. Neither side certified the closure of pleadings under Practice Book § 14-8 nor did they file a jury claim. Indeed, the plaintiff has recently filed a request to amend his complaint by adding two more counts.
The adverb "finally" must modify the word "closed" in some meaningful way. Otherwise, the statute would have read "any time before the pleadings in such action are closed," rather than "any time before the pleadings in such action are finally closed." The court infers from the use of "finally" that the legislature recognized that pleadings often are closed temporarily but without having achieved a settled state of repose in the minds of the parties.
The procedural history in this case compels the conclusion that the parties regarded the pleadings as open despite the filing of the original answer on December 30, 2005. Less than a month later, the answer was amended by consent, and the pleadings have remained open since then.
It is significant to note that when the answer was amended to add the special defense, in January 2006, the two-year limitation period of § 52-584 had not yet run out. That is, the pleadings in this case never closed after the two-year limit expired.
The court holds that the state of flux in the pleadings in this case is such that they were never finally closed so as to bar use of the counterclaim exception of § 52-584.
The request for leave to amend the answer is granted.