Opinion
DBDCV186026048S
04-10-2019
Inez PITNER v. DANBURY MALL, LLC et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Apportionment defendant M & M Lawn Service, LLC ("M & M") has moved to dismiss the apportionment complaint against it on the ground that the apportionment plaintiff, C & W Facility Services, Inc. ("C & W"), is no longer a party to this action because the Court granted C & W’s motion for summary judgment dismissing the plaintiff’s claim against it in the underlying action. M & M argues that without C & W as a party, there is no one to prosecute the apportionment complaint. Defendants Danbury Mall, LLC (the "Mall") and MACW Property Management, LLC (the "Management Company") have objected to the dismissal of M & M as apportionment defendant. For the reasons stated below, the motion to dismiss is denied and the objection is sustained.
In the underlying action, plaintiff alleges she tripped over a line of loose bricks jutting out from an advertising display of fireplaces in the common area of the Danbury Mall and sued, inter alia, the Mall, the Management Company and C & W, the cleaning contractor. C & W brought an apportionment complaint against M & M, alleging that the advertising display was installed pursuant to a license agreement between M & M and the Mall, under which M & M had a duty to maintain, inspect and remedy any unsafe condition in the display, and alleging that the condition that caused plaintiff to trip and fall resulted from M & M’s negligence.
The dismissal of the claim against C & W was based on uncontroverted proof that the cleaning contractor was not in possession or control of the area where the fall occurred. This ruling has nothing to do with the potential apportionment liability of M & M. The question is whether the remaining defendants, which did not bring apportionment complaints against M & M, can keep M & M in the action for purposes of apportionment of liability now that C & W, the apportionment plaintiff, is no longer party to this action. The Court concludes that M & M remains "a party for all purposes, including all purposes under section 52-572h" as provided by C.G.S. § 52-102b.
* * * (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." C.G.S. § 52-102b. "(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 ... The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action ... 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.
To understand the apportionment scheme devised by the Legislature for negligence actions, it is necessary to read the apportionment provisions in C.G.S. § 52-102b in context together with the contribution provision in C.G.S. § 52-572h(c) which provides: "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 ..."
Once an apportionment defendant becomes a party to the action, the other defendants cannot bring apportionment complaints because defendants cannot bring an apportionment complaint against the apportionment defendant already party to the action because the apportionment statute is limited to "a person not a party to the action." C.G.S. § 52-102b. There is no requirement that the other defendants assert cross claims to receive the benefit of apportionment of any damages award. Significantly, the apportionment statute does not mention possible cross claims although it does refer to other rights and remedies: "[t]he 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." C.G.S. § 52-102b(b). If the Legislature had intended cross claims among defendants to preserve contribution rights it could have said so. The majority rule among the superior court opinions on the subject is that cross claims against apportionment defendants are not permitted. See Roklen v. Presnell, 2006 WL 829521 *2-3 (Conn.Super. 2006) (Taylor, J.) ("majority view" is that apportionment cross claims are precluded).
The "minority view" would permit cross claims against apportionment defendants on the theory that C.G.S. § 52-102b is irrelevant once the apportionment defendant has become party to the action and allowing cross claims would notify interested parties of the negligence asserted as a basis for contribution. See e.g., Roklen, 2006 WL 829521 *3-4 (and cases cited).
It would make no sense to grant the motion to dismiss and then require the other defendants to bring M & M back into the case by serving another apportionment summons and complaint. Once let out of the case the apportionment defendant no doubt would resist being brought back in arguing the 120-day period for commencing an apportionment has elapsed, which would place the matter in the hands of the court to determine whether equity would warrant tolling the period and further delay and complicate progress in the action. See Lexington Ins. Co. v. TJ Construction Corp., 2015 WL 5712612 *2 (Conn.Super. 2015) (Peck, J.), citing Pedro v. Miller, 281 Conn. 112, 118 (2007) (equitable tolling of 120-day period). Nor would it make sense to require separate apportionment complaints by different defendants, a practice probably precluded by the provision that when served the apportionment defendant becomes a "party for all purposes" and the limitation on apportionment to "a person not a party to the action" under C.G.S. § 52-102b(a). Compare Paparian v. Stew Leonards Danbury, LLC, 2012 WL 3518035 *2 (Conn.Super. 2012) (Woods, J.). See also Barabas v. Michaels, 2011 WL 3588269 *1 (Conn.Super. 2011) (Zoarski, J.) .
A race by defendants to be the first to summon in an apportionment defendant does not appear to have been within the contemplation of the Legislature; all defendants receive the benefit of apportionment once the apportionment defendant becomes party to the action. Neither C.G.S. § 52-102b nor C.G.S. § 52-572h distinguish between the apportionment plaintiff who brought the apportionment defendant into the action as a party and the other defendants for purposes of apportioning liability for damages. Apportionment is not based on liability of the apportionment plaintiff in the underlying action, but upon the liability of the apportionment defendant subject to contribution under C.G.S. § 52-572h. See Crotta v. Home Depot, Inc., 249 Conn. 634, 639 (1999); Lanzara v. Henry M. Osowiecki & Sons, Inc., 2017 WL 3671333 *3-4 (Conn.Super. 2017) (Schuman, J.) ; Saucier v. Wolcott, 2003 WL 23025462 *2 (Conn.Super. 2003) (Matasavage, J.) .
Dismissing the apportionment complaint because C & W is no longer party to the action would complicate and delay the progress of the action and encourage unnecessary, preemptive litigation the apportionment system is designed to avoid. In Pedro, 281 Conn. at 121, the Supreme Court held that equitable tolling of the 120-day period for commencing an apportionment action was consistent with: "... one of the primary purposes underlying the apportionment statutes, namely, to develop a uniform and predictable mechanism for the apportionment of liability. As we stated in Lostritto [v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 26 (2004)], ‘§ 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty.’" As Judge Nazzaro observed in Bostic v. Transportation General, Inc., 2014 WL 3511688 *3 (Conn.Super. 2014) , one goal of equitable tolling "is avoiding the cost and burden of unnecessary, preemptive litigation aimed at persons for whom there is no known basis in fact or law to bring an action simply to avoid the possibility that a later apportionment complaint will be time barred."
The same is true here; dismissal would encourage unnecessary, preemptive litigation contrary to the goals of the apportionment system. Once M & M became an apportionment defendant pursuant to C.G.S. § 52-102b(a), it became "a party for all purposes," including contribution under C.G.S. § 52-572h. Allowing M & M to escape liability because C & W is no longer in the case for reasons unrelated to M & M’s culpability would defeat the apportionment scheme and impose the cost and burden of unnecessary preemptive litigation as the other defendants seek to protect their right to contribution by M & M. The other defendants either would have to bring apportionment cross claims, not provided by statute, to guard against dismissal of the apportionment plaintiff or, after dismissal, they would be forced to bring M & M back into the case for apportionment purposes with a new apportionment complaint after the 120-day deadline had expired.
Courts that have adopted the majority rule that does not permit cross claims against an apportionment defendant have done so recognizing that the statute provides defendants with the remedy of proportionate contribution under C.G.S. § 52-572h. See Roklen v. Presnell, 2006 WL 829521 *3 (Conn.Super. 2006) (Taylor, J.). "The defendant ... is not left without a remedy. Since General Statutes § 52-572h(c) provides that all parties against whom recovery is permitted are liable only for their proportionate share of damages, and because [the proposed apportionment defendant] is a party, his percentage of negligence will be considered by the jury." Id., quoting Desmosthene v. Spignolio, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-01-0186972-S (July 24, 2002, Lewis, J.).
M & M argues that as a practical matter since C & W is no longer a party, there is no one to prosecute the apportionment complaint. Defendants clearly have standing to assert plaintiff’s injuries were caused by M & M’s negligence and to enforce apportionment rights against M & M as a party subject to apportionment and contribution under C.G.S. § § 52-102b and 52-572h(c). The motion to dismiss is denied.