Summary
In Phelan Judge Stevens granted the motion to strike the counterclaim premised on C.G.S. § 52-102b, that "applies only to the filing of an apportionment complaint against individuals who are not parties to the action," but signaled a substitute counterclaim would not be stricken.
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CV176024822S
09-11-2018
Paula PHELAN et al. v. Constance SOCHA
UNPUBLISHED OPINION
STEVENS, J.
STATEMENT OF THE CASE
On October 26, 2017, the plaintiffs, Paula Phelan and Brian Bates, instituted this action against the defendant, Constance Socha, seeking compensatory damages against Socha for injuries arising from a motor vehicle accident. Specifically, the complaint alleges that Phelan was a passenger on a motorcycle operated by Bates when Socha operated a motor vehicle through a stop sign causing a collision between the vehicles.
On February 21, 2018, Socha filed an answer and a special defense. In the answer, Socha denied that her negligence caused Phelan and Bates’ damages. In the special defense, Socha claimed that any damages sustained by Phelan and Bates were the result of the negligence and carelessness of Bates.
On March 14, 2018, the defendant filed an apportionment complaint against Bates purportedly under the provisions of General Statutes § 52-102b.
General Statutes § 52-102b is entitled "Addition of person as defendant for apportionment of liability purposes" and provides the following:
Pending before the court is the motion to strike Socha’s apportionment complaint filed by Phelan on March 14, 2018. The motion was filed with a supporting memorandum. On May 25, 2018, Socha filed a memorandum in opposition to the motion to strike. Oral arguments were heard on May 29, 2018. For the following reasons, the motion to strike is granted on the ground that the counterclaim is premised on § 52-102b.
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). "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). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Phelan’s motion to strike the defendant’s apportionment complaint presents an issue that has created a conflict among trial court decisions. Section 52-102b establishes the procedures under which a defendant in a civil action to which § 52-572h applies may add a person who is not a party to the action and who may be liable for a proportionate share of the plaintiff’s damages. See footnote 1 of this opinion. In her motion to strike, Phelan relies on a line of cases holding that the plain language of § 52-102b does not authorize a defendant to file an apportionment complaint against a person who is already a party to the action. "The majority of cases considering this issue ... have refused to allow a defendant to bring an apportionment claim against a plaintiff ... Many judges hold that since the language of the statute specifically refers to a person not a party, it does not permit such claims." DiMaggio v. Tuck, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-03-0285298-S (February 26, 2004, Wiese, J.) (36 Conn.L.Rptr. 579).
In her objection to the motion, the defendant relies on a line of cases holding that although § 52-102b concerns the adding of a person who is not a party to the action, the statute does not preclude an apportionment complaint against someone who is already a party to the action. "[T]he minority view concludes that the purpose of § 52-102b is not to bar the filing of apportionment complaints against existing parties, but rather to provide a statutory means by which defendants may add and seek apportionment from nonparties. These minority view opinions have determined that because § 52-102b is irrelevant to persons that are already parties to a suit ... the law does not preclude the filing of an apportionment action against existing parties." (Citations omitted; internal quotation marks omitted.) Prete v. Borrelli, Superior Court, judicial district of New Haven, Docket No. CV-11-6022696-S (May 22, 2012, Gold, J.) (54 Conn.L.Rptr. 88).
The court grants the motion to strike. Socha’s attempt to file her apportionment complaint under § 52-102b fails because the language of this statute is clear and unambiguous that its provisions only apply to adding a person who is not already a party to the action. On the other hand, for the same reason, the court rejects the plaintiff’s argument that § 52-102b precludes the defendant from filing any claim in this action to assert an apportionment determination under § 52-572h.
The issue before the court involves the interpretation of two statutes- General Statutes § § 52-572h and 52-102b. In this regard, the court is guided by the provisions of General Statutes § 1-2z: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Furthermore, "[w]hen the relevant statutory text and the relationship of that text to other statutes do not reveal a meaning that is plain and unambiguous, our analysis is not limited, and we look to other factors relevant to determining the meaning of [a statute], including its legislative history, the circumstances surrounding its enactment and its purpose ... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citations omitted; internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 421, 927 A.2d 843 (2007).
First addressing General Statutes § 52-572h, this statute accomplishes a legislative change of the common law regarding contributory negligence and joint and several liability. Under the common law, a plaintiff’s contributory negligence operated to preclude the plaintiff from any recovery notwithstanding the extent to which her negligence contributed to her damages. Section 52-572h(b) changed this rule of contributory negligence to a rule of comparative negligence so that a jury is now charged to compare any negligence found against the plaintiff with any negligence found against the defendant. The plaintiff’s damages are reduced by the percentage of the negligence attributed to her, except that her recovery is precluded if her negligence exceeds the defendant’s negligence. Consequently, under Section 52-572h(b), as compared to the common law, a defendant may now assert a special defense as to a plaintiff’s negligence claim and require the jury to engage in the comparative negligence analysis as provided under the statute.
General Statutes § 52-572h(b) provides: "In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section."
In this regard, General Statutes § 52-572h(e) provides: "In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party."
Connecticut common law also followed the rule of joint and several liability with no right of contribution among joint tortfeasors. Under this rule, if the negligence of two defendants proximately caused the plaintiff’s damages, the plaintiff had the right to recover all her damages from either of them and the defendant paying the damages would have no right of contribution against the other. General Statutes § 52-572h(c) accomplished a legislative change to this rule. Under § 52-572h(c), the liability of a joint tortfeasor is now apportioned so that he is liable only to the extent that his negligence proportionately contributed to the plaintiff’s damages. The apportionment of liability created by the statute is limited to individuals who are "parties to the legal action or who [are] specifically identified in § 52-572h(n)." Donner v. Kearse, 234 Conn. 660, 669, 662 A.2d 1269 (1995) (discussing how Tort Reform II, as compared to Tort Reform I, reduced and limited apportionment analysis from consideration of "universe" of potential tortfeasors to parties and statutorily identified individuals).
General Statutes § 52-572h(c) states the following: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
General Statutes § 52-572h(n) provides: "A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section."
Consequently, as compared to the common law, a defendant may now acquire an apportionment analysis based on the allegations of a plaintiff’s complaint and the special defense of contributory negligence asserted by the defendant. Additionally, under § 52-572h(c), a defendant may also assert an apportionment claim against another party to the action whose negligence may have contributed to the plaintiff’s damages, but against whom the plaintiff has not asserted a claim. In the present case, Socha may, therefore, assert a counterclaim for apportionment against Bates, the driver of Phelan’s vehicle, against whom Phelan has not asserted a claim. Such an apportionment claim by Socha against Bates is authorized and contemplated by the unambiguous language of § 52-572h(c) providing that if the claimant’s damages "are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable" damages. In short, "§ 52-572h created the right for a defendant to apportion liability to any party to the action ..." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 24, 848 A.2d 418 (2004).
As just explained, the right to apportionment created under § 52-572h(c) is limited to the parties of the action (and other individuals specifically identified in § 52-572h(n)). The legislature, however, addressed this limitation through the enactment of General Statutes § 52-102b. Section 52-102b authorizes a defendant in a civil action to which § 52-572h(c) applies to serve an apportionment 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 ..." General Statutes § 52-102b(a). Because the plain and unambiguous language of § 52-102b authorizes a defendant to serve an apportionment complaint only on a person who is "not a party to the action," the defendant here cannot utilize this statute as she claims to assert an apportionment complaint against Bates who is already a party to this action. Cf., Lieberman v. Reliable Refuse Co., 212 Conn. 661, 669, 563 A.2d 1013 (1989) (the term "party" refers "to those by or against whom a legal suit is brought ... the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons [internal quotation marks omitted]").
On the other hand, the court acknowledges and must reject the line of cases relied on by the plaintiff that looks to § 52-102b to conclude that a defendant cannot assert in any way an apportionment claim against another party to an action. See, e.g., Roklen v. Presnell, Superior Court, judicial district of New Haven at Meriden, Docket No, CV-04-0287569-S (March 15, 2006, Taylor, J.) (40 Conn.L.Rptr. 883); Rubbak v. Thompson, Superior Court, judicial district of Stamford, Docket No. CV-00-0180009-S (April 6, 2001, Lewis, J.) (29 Conn.L.Rptr. 316). For the reasons just explained, this reasoning fails because it involves a misconstruction of § 52-572h and § 52-102b.
There can be no bona fide dispute that § 52-572h changes the common law by establishing the rights of comparative negligence and apportionment. Although § § 52-572h(b) and (c) do not set forth the procedures under which comparative negligence and apportionment may be asserted, these provisions unequivocally state that these statutorily created rights are available to the parties to an action. A conclusion that a defendant cannot assert an apportionment claim against another party to the action operates to deprive the defendant of the very apportionment right established by the plain and unambiguous language of the statute.
Furthermore, § 52-102b cannot be construed to preclude a defendant’s right to assert an apportionment claim against another party under § 52-572h(c) because the documented history indicates that the design of § 52-102b was to broaden the apportionment evaluation created by § 52-572h(c) to persons not parties to the action, and not to restrict the assertion of an apportionment claim by a party to the action. See Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 24-26 (explaining that legislative concerns in enacting § 52-102b were to address means to make person party to action for purpose of apportioning liability under § 52-572h(c) and time period within which to do so). "A statute, such as § 52-102b, that governs how a defendant may add a party and assert an apportionment claim against him does not govern how to do so with respect to existing parties." Torres v. Begic, Superior Court, judicial district of Fairfield, Docket No. CV-00-423742 (June 4, 2000, Levin, J.) (27 Conn.L.Rptr. 403). Stated differently, § 52-102b operates to expand the right of apportionment to persons who are not parties to the action and this statute cannot be construed as the only means for a party to assert an apportionment claim in derogation of the express provisions of § 52-572h(c), which establish that an apportionment claim may be asserted against a party to the action.
Some of the other arguments accepted by trial courts to strike a defendant’s counterclaim asserting an apportionment claim against a plaintiff under § 52-572h(c) are not without weight but nevertheless fail under close analysis. For example, some courts reason that an apportionment counterclaim is procedurally insufficient because such a claim does not seek "affirmative relief" against the party to whom it is directed. See, e.g., Bowen v. Currier Trucking, Inc., Superior Court, judicial district of New Haven, Docket No. CV-02-0470230-S (October 21, 2003, Zoarski, J.T.R.) (35 Conn.L.Rptr. 679, 681); see generally, Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985) ("[a] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action" [internal quotation marks omitted] ).
Practice Book § 10-54 provides that a defendant may assert "a counterclaim, or right of set off, against the plaintiff’s demand." More specifically, Practice Book § 10-10 provides that "[a] defendant may also file a counterclaim or cross claim under this section against any other party to the action for the purpose of establishing that party’s liability to the defendant for all or part of the plaintiff’s claim against that defendant." "Neither the Practice Book, in any relevant provision, nor the Connecticut General Statutes, employ the term "affirmative relief." Torres v. Begic, supra, 27 Conn.L.Rptr. 403.
In any event, an apportionment counterclaim seeks affirmative relief. In the present case, Socha’s apportionment claim against Bates asserts that Bates should be held proportionately liable for Phelan’s damages based on the extent to which his negligence contributed to these damages, an affirmative claim that is clearly within the scope of the controversy and authorized by § 52-572h(c). "[A]sking a court to shift liability for a personal injury to another party is a sufficient request for "affirmative relief." Id. Any procedural definition of a counterclaim finds sufficient breadth and exception to encompass such a claim that involves the assertion of a statutorily created claim unavailable at common law. Accord, Sanon v. Paulin, Superior Court, judicial district of Fairfield, Docket No. CV-15-6053676-S (April 14, 2016, Wenzel, J.) (62 Conn.L.Rptr. 147); Prete v. Borrelli, supra, 54 Conn.L.Rptr. 88); Torres v. Begic, supra, 27 Conn.L.Rptr. 403; Yousef v. Naughton, Superior Court, judicial district of Fairfield, Docket No. CV-97-0323626-S (Oct. 31, 1997, Stodolink, J.).
The cases relied on by Phelan also reason that a counterclaim asserting apportionment is unavailable against a plaintiff driver such as Bates because a special defense denying causation and implicating apportionment may be asserted against the plaintiff passenger Phelan. See, e.g., DiMaggio v. Tuck, supra, 36 Conn.L.Rptr. 580. However, a special defense directed to Phelan’s complaint denying causation is not the same as a claim directed to Bates for apportionment as exemplified by the possibility that any apportionment of Bates’ negligence could become unavailable under § 52-572h(c) if Bates resolves his claims, withdraws his complaint and becomes a nonparty to the action before the time of trial.
In response to the point that apportionment would be unavailable if there were no counterclaim, and Bates withdrew his complaint and became a nonparty before the trial, one might argue that if there were such a withdrawal, the defendant could then file an apportionment complaint against Bates under § 52-102b in order to bring him back into the case. See, e.g., Iwanczuk v. Zhen, Superior Court, judicial district of New Haven, Docket No. CV-07-5002679-S (May 7, 2008, Taylor, J.) (45 Conn.L.Rptr. 546, 547). Such an apportionment complaint would most likely run afoul of the mandatory limitation of § 52-102b(a) requiring apportionment complaints to be filed within 120 days of the return date of the plaintiff’s complaint. Again, resort to such procedural machinations is unnecessary and avoidable by a defendant’s assertion of the apportionment claim created by § 52-572h(c) against a party to the action. As cogently explained eighteen years ago by Judge Levin in Torres v. Begic, supra, this argument and the others against a defendant filing an apportionment claim against another party "at rock bottom ... subvert the public policy behind the amendment to General Statutes § 52-572h in Tort Reform I and II abrogating joint and several liability and providing that a defendant should be liable only for that proportion of the damages for which he or she was responsible." (Citation omitted; internal quotation marks omitted.)
Although the Supreme Court’s decision in Viera v. Cohen, supra, 283 Conn. 412, is sometimes cited as well to support Phelan’s position, the facts and issues in that case are dissimilar to those here. In Viera, the plaintiff sued two defendants and prior to trial she withdrew her action against one of them without receiving consideration for the withdrawal. The Supreme Court held that the remaining defendant could not acquire apportionment against the other defendant because such a withdrawal did not constitute a "release, settlement or similar agreement" within the meaning of § 52-572h(n). Viera v. Cohen, supra, 442. The defendant claiming apportionment had not filed a cross claim against the other defendant. In the decision, the Supreme Court opined that a "legislative gap" exists because of the inapplicability of § 52-102b and because a defendant cannot "file an apportionment complaint against [another defendant] while [this defendant is] a party [to the action]." Id., 443. The court’s opinion in Viera does not provide a reasoned explanation for the statement that a defendant having a right to apportionment against a party to the action under § 52-572h(c) cannot assert this claim against such party outside the context of the circumstances of that case. In any event, because the facts in Viera did not involve a defendant’s assertion of an apportionment counterclaim or cross claim against another party to the action as the facts in the present case, this court concludes that this statement in Viera is obiter dictum and does not constitute binding precedent governing this court’s construction and application of § 52-572h(c). See State v. Iverson, 48 Conn.App. 168, 174, 708 A.2d 615 ("obiter dicta is not binding precedent"), cert. denied, 244 Conn. 930, 711 A.2d 728 (1998).
In summary, in order for a defendant to acquire an apportionment evaluation of another party’s negligence as provided under § 52-572h(c), the defendant must be able to assert an apportionment claim against the other party. A fundamental rule of statutory construction is that a statute should be interpreted and applied in a way that gives meaning and effect to its language. A statute, therefore, should not be construed in a manner that will "thwart its intended purpose or lead to absurd results." Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). Furthermore, the court "must avoid a construction that fails to attain a rational and sensible result that bears on the purpose the legislature sought to achieve." Id., 713. The plain and unambiguous language of § 52-572h(c) authorizes a defendant to acquire an apportionment evaluation of the negligence of another party in the action. An interpretation and application of § 52-572h(c) that precludes a defendant from asserting an apportionment claim against another party violates all these rules of statutory construction. Specifically, such an interpretation thwarts the intended purpose of the statute by actually achieving the exact opposite result contemplated by the statutory language, and thereby, achieves a result that is absurd, irrational, and nonsensical. Such an interpretation should be rejected because it operates to preclude the language, which creates this new, statutory right of apportionment, from having any legal or practical meaning or significance.
CONCLUSION
Therefore, the motion to strike Socha’s counterclaim filed by Phelan is granted on the ground that the counterclaim is premised on General Statutes § 52-102b, and this statute applies only to the filing of an apportionment complaint against individuals who are not parties to the action. Socha may plead further by filing a substitute pleading within fifteen days. See Practice Book § 10-44.
So ordered.
(a) 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 defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.
(b) The apportionment complaint shall be equivalent in all respects to an original writ, summons and complaint, except that it shall include the docket number assigned to the original action and no new entry fee shall be imposed. The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party. If the apportionment complaint is served within the time period specified in subsection (a) of this section, no statute of limitation or repose shall be a defense or bar to such claim for apportionment, except that, if the action against the defendant who instituted the apportionment complaint pursuant to subsection (a) of this section is subject to such a defense or bar, the apportionment defendant may plead such a defense or bar to any claim brought by the plaintiff directly against the apportionment defendant pursuant to subsection (d) of this section.
(c) No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff’s injuries or damage and the plaintiff has previously settled or released the plaintiff’s claims against such person, then a defendant may cause such person’s liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff’s claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiff’s injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action.
(d) 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.
(e) When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.
(f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff’s damages as a party to the action.
(g) In no event shall any proportionate share of negligence determined pursuant to subsection (f) of section 52-572h attributable to an apportionment defendant against whom the plaintiff did not assert a claim be reallocated under subsection (g) of said section. Such proportionate share of negligence shall, however, be included in or added to the combined negligence of the person or persons against whom the plaintiff seeks recovery, including persons with whom the plaintiff settled or whom the plaintiff released under subsection (n) of section 52-572h, when comparing any negligence of the plaintiff to other parties and persons under subsection (b) of said section.
Section 52-572h(f) provides: "The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant."
General Statutes § 52-572h(g)(1) states the following: "Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant’s percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that the portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant’s percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose liability is reallocated is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment."