Opinion
No. 564838
July 23, 2007
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION #14
This action arises out of an automobile collision. The following relevant facts and procedural history are not in dispute. The plaintiff Cristin Pedro, filed a one-count complaint, in negligence, against the defendants, Joseph Miller and Builders, Inc., on January 30, 2003, with a return date of February 18, 2003. In her complaint the plaintiff alleges that, on December 22, 2001, she suffered injuries as a result of a collision between the minivan she was driving and a vehicle owned by Builders, Inc., and operated by Miller, who was an employee of Builders, Inc., and that she suffered the following injuries as a result of the accident: pain in the left shoulder and arm, acute left trapezius muscle strain and sprain in her neck, shoulder stiffness, right leg pain, hip pain, low back pain, herniated or bulging discs and headaches. Soon after filing the complaint against the defendants, the plaintiff began treatment for her injuries with Edward Hargus, her physician. On June 29, 2004, the plaintiff filed an amended complaint, adding the allegation that, during her treatment for her other injuries, she suffered from a cerebrospinal fluid leak. On October 6, 2004, the plaintiff filed a second amended complaint. In response to the new allegation regarding the injuries the plaintiff alleged she had suffered during treatment, the defendants served an apportionment complaint on Hargus on October 22, 2004, and filed the complaint on November 16, 2004, pursuant to General Statutes §§ 52-102b and 52-572h.
On November 9, 2004, the plaintiff filed a complaint, in negligence, against apportionment defendant, Hargus, pursuant to General Statutes §§ 52-102b. In her complaint against Hargus, the plaintiff alleges, inter alia, the following facts. Hargus is a specialist in the field of anesthesiology and pain management. He treated the plaintiff since January 2003. The plaintiff sustained a cerebrospinal fluid leak and other injuries requiring surgical repair as a result of Hargus' negligence and carelessness.
On November 19, 2004, Hargus moved to dismiss the apportionment complaint and the plaintiff's direct complaint against him. The trial court granted Hargus' motion to dismiss the apportionment complaint and the plaintiff's direct complaint concluding that it lacked personal jurisdiction over Hargus because the apportionment complaint was served more than 120 days after the return date set forth in the original complaint and that the plaintiff's direct complaint against Hargus, filed pursuant to § 52-102(d), is derivative of the dismissed apportionment complaint. The defendants appealed the trial court's decision. The plaintiff did not appeal the dismissal of her complaint against Hargus. The Supreme Court reversed the trial court's decision to dismiss the apportionment complaint finding that a compelling equitable reason, i.e., the fact that the legal basis for apportioning liability arose only after the 120-day limit already had expired, justified excusal from compliance with the limit. Pedro v. Miller, 281 Conn. 112, 118-19, 914 A.2d 524 (2007). The Supreme Court remanded the case to the trial court with direction to deny Hargus' motion to dismiss the apportionment complaint. Id., 121.
The plaintiff filed a motion for reconsideration on February 15, 2007. Hargus filed an objection to the motion on March 1, 2007. The plaintiff filed a response to Hargus' objection on March 26, 2007. Hargus filed a surreply to the plaintiff's response on April 26, 2007. The plaintiff filed a "subresponse" to Hargus' surreply on April 30, 2007. The motion was heard on the short calendar on April 30, 2007.
DISCUSSION
In her motion for reconsideration, the plaintiff asks the court to reconsider its decision to dismiss the plaintiff's complaint against Hargus in light of the Supreme Court's decision in Pedro v. Miller, 281 Conn. 112, 914 A.2d 524 (2007). The plaintiff argues that the trial court's judgment dismissing her complaint should be vacated on the grounds that the Supreme Court has provided the courts with clarification of the law on equitable tolling of the statute of limitations on the apportionment claim and that her complaint was derivative of the defendants' apportionment complaint, the dismissal of which was reversed by the Supreme Court in Pedro v. Miller, supra, 281 Conn. 112. In his objection, Hargus argues that the motion should be denied because the plaintiff's motion, which is actually a motion to reargue, is untimely and because a collateral attack on a judgment is a procedurally impermissible substitute for direct appeal.
A motion for reconsideration is "a proper vehicle for the court to exercise its equitable discretion to reexamine its decision . . ." Mangiante v. Niemiec, 98 Conn.App. 567, 578, 910 A.2d 235 (2006). "The granting of a motion for reconsideration . . . is within the sound discretion of the court . . . Shore v. Haverson Architecture Design, P.C., 92 Conn.App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006)." (Internal quotation marks omitted.) Mangiante v. Niemiec, supra, 98 Conn.App. 575. "A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it." (Internal quotation marks omitted.) Id., 577. The trier has "the power to undertake reconsideration that the trier believes to be warranted on equitable grounds." Id. "[A] reconsideration hearing involves consideration of the trial evidence in light of outside factors such as new law, a miscalculation or a misapplication of the law." Jaser v. Jaser, 37 Conn.App. 194, 203, 655 A.2d 790 (1995).
"The standard of review regarding challenges to a court's ruling on a motion for reconsideration is abuse of discretion. As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did." (Internal quotation marks omitted.) Mangiante v. Niemiec, supra, 98 Conn.App. 575.
Hargus contends that the plaintiff's motion is a motion to reargue, governed by Practice Book § 11-12, not a motion for reconsideration, and therefore, is untimely because it was filed more than twenty days after the decision was rendered. Hargus' contention is without merit.
Practice Book § 11-12(a) provides in relevant part: "A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision . . ."
The plaintiff denominated her motion as a motion for reconsideration. In her motion, she asks the court to reconsider its previous decision in light of new law. Moreover, even it as Hargus contends, the plaintiff's motion were a motion to reargue, it would not be governed by Practice Book § 11-12. Practice Book § 11-12(d) provides in relevant part: "This section shall not apply to motions to reargue decisions which are final judgments for purposes of appeal." "The decision [granting a motion to dismiss] is rendered in the form of a final judgment dismissing the action . . . 1 E. Stephenson, Connecticut Civil Procedure (1971 Cum. Sup. 1982) § 153, pp. 615, 616." (Internal quotation marks omitted.) Southport Manor Convalescent Center Inc. v. Foley, 216 Conn. 11, 16-17, 578 A.2d 646 (1990). The trial court's decision granting Hargus' motion to dismiss was a final judgment for purposes of appeal to which Practice Book § 11-12 does not apply.
In her motion for reconsideration, the plaintiff asks the trial court to reconsider its decision based on new law set forth in Pedro v. Miller, supra, 281 Conn. 112. The plaintiff argues as follows. In Pedro v. Miller, supra, 281 Conn. 112, the Supreme Court has provided the courts with clarification of the law regarding equitable tolling of the time in which the apportionment complaint must be filed. The Supreme Court found that equitable considerations, other then waiver and consent, may toll the statute of limitations on apportionment claims. Similar equitable considerations apply to the present motion. The plaintiff's complaint against Hargus is derivative of the apportionment complaint and the trial court dismissed the plaintiff's complaint solely on the ground that the complaint, filed pursuant to § 52-102(d), is derivative of the dismissed apportionment complaint. Therefore, if the apportionment complaint is viable, as a matter of equity, the derivative complaint by the plaintiff should also be viable. The motion is based on equitable grounds, i.e., in light of the Supreme Court's ruling, which for the first time, applied equitable tolling of the statute of limitations to an apportionment complaint. The plaintiff's interests against Hargus are not only aligned with those of the defendants but her rights are derivative of the defendants' rights.
In his objection, the defendant argues that the plaintiff's motion should be denied because it is a collateral attack on a judgment, i.e., a procedurally impermissible substitute for direct appeal.
In the present case, the defendants filed an apportionment complaint pursuant to General Statutes § 52-102b(a). The plaintiff filed her complaint against Hargus pursuant to General Statutes § 52-102b(d), which provides: "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 trial court dismissed the defendants' apportionment complaint on the ground that it lacked personal jurisdiction over Hargus because the apportionment complaint was served more than 120 days after the return date set forth in the original complaint. Pedro v. Miller, Superior Court, judicial district of New London, Docket No. CV 03 0564838 (May 17, 2005, Hurley, J.T.R.) [39 Conn. L. Rptr. 369]. The court also granted Hargus' motion to dismiss the plaintiff's complaint against him concluding that, because the court lacked personal jurisdiction over him based on the untimely filing of the apportionment complaint, it also lacked personal jurisdiction over him for purposes of the plaintiff's complaint. Id. On appeal, the Supreme Court reversed the trial court's decision finding that because of the equitable tolling of the statute of limitation, the defendants' complaint was not untimely, and, therefore, the court has personal jurisdiction over Hargus. Pedro v. Miller, supra, 281 Conn. 121. Specifically, the Supreme Court agreed with the defendants that the trial court "improperly granted Hargus' motion to dismiss because there were compelling equitable considerations to toll the 120 day statute of limitations." Id., 116. The court concluded that "the fact that the legal basis for apportioning liability arose only after the 120 day limit already had expired constitutes an equitable reason justifying excusal from compliance with the limit." Id., 118-19. The court explained:
General Statutes § 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. 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 original complaint . . . provided the defendants with no basis to seek apportionment against Hargus pursuant to § 52-102b(a) . . . It was only when the plaintiff filed the amended complaint on June 29, 2004, more than sixteen months after the original return date, that she added allegations that she had suffered a cerebrospinal fluid leak during her treatment for her other injuries arising from the accident. Until she made this allegation in the amended complaint, the defendants had no factual or legal basis for seeking apportionment against Hargus. Therefore, the legal basis for the defendants to seek apportionment from him did not arise until after — indeed, long after — the 120 day limit already had passed. Consequently, it was impossible for the defendants to serve the apportionment claim upon Hargus within the 120 day limit established by § 52-102b(a). Such a circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute."
Id., 119. Therefore, by concluding that equitable reasons for tolling the statute of limitations are not limited to waiver and consent; id.; the Supreme Court clarified the law on equitable tolling of the statutes of limitations affecting personal jurisdiction.
Accordingly, the court finds that, because the plaintiff's claim against Hargus is derivative of the apportionment claim, the clarification of law on equitable tolling of the statute of limitations on apportionment claims by the Supreme Court provides equitable reason for restoring the plaintiff's complaint. In addition, the fact that the Supreme Court reversed the trial court's dismissal of the apportionment complaint and directed the court to deny Hargus' motion to dismiss, thereby recognizing that the court has personal jurisdiction over Hargus for purposes of the apportionment claim, constitutes another equitable reason for the court to find that it has personal jurisdiction over Hargus for purposes of the plaintiff's derivative action as well.
Hargus' argument that the plaintiff should have filed an appeal when the trial court dismissed her complaint against him is without merit as the plaintiff may not have had sound legal grounds for an appeal until the Supreme Court issued its decision clarifying the law on equitable tolling of the statute of limitations. The equitable reasons for filing the motion arose only after the Supreme Court released its decision reversing trial court's dismissal of the defendants' apportionment complaint.
CONCLUSION
Because the Supreme Court found that the apportionment complaint against Hargus was not untimely and, consequently, the trial court has personal jurisdiction over Hargus, the court finds that it has personal jurisdiction over Hargus for purposes of the plaintiff's claim against him which is derivative of the apportionment complaint. Accordingly, the court finds that there are sufficient equitable grounds in the present case to allow the plaintiff to restore her derivative claim against Hargus.
For the reasons stated above, the plaintiff's motion for reconsideration is granted.