Opinion
CV166035339S
08-08-2017
Michael Quagliaroli v. Progressive Casualty Insurance Company
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 110
PETER EMMETT WIESE, JUDGE.
I
PROCEDURAL HISTORY
The plaintiff, Michael Quagliaroli, alleges the following facts in his second amended complaint. On August 7, 2014, the plaintiff, a trooper with the Connecticut State Police, was dispatched to Interstate 91 in Hartford to assist the defendant, Aaron Altenhein (Altenhein), remove his " tonneau cover" from the highway, which had fallen off of Altenhein's vehicle. At this time, a third party, Ilona Gladu (Gladu), negligently and carelessly operated " her motor vehicle at a high rate of speed" and " suddenly changed lanes into the far left northbound lane on interstate 91" and " without warning struck [the plaintiff] with [her motor vehicle]."
In the second amended complaint, the plaintiff brings underinsured motorist claims against his underinsured motorist carriers, Progressive Casualty Insurance Company (Progressive) (count one), the Travelers Home and Marine Insurance Company (Travelers) (count two), and, the State of Connecticut (count three), and contends that the insurers have not paid the plaintiff underinsured motorist benefits for the losses he sustained on August 7, 2014. The plaintiff also brings a negligence claim against Altenhein (count four), alleging that Altenhein's negligence in his inspection, operation, and maintenance of his vehicle caused the plaintiff to suffer injuries and losses on August 7, 2014. The plaintiff claims damages for his injuries and losses.
On May 16, 2017, the plaintiff withdrew its action against Progressive and Travelers.
On December 20, 2016, the defendant, State of Connecticut, served an apportionment complaint on Altenhein for his negligence on August 7, 2014. On January 26, 2017, the plaintiff " plead over" against Altenhein and made Altenhein a defendant to the plaintiff's amended complaint. On March 6, 2017, the plaintiff filed a second amended complaint, which is the operative complaint in this action. Despite the foregoing, Altenhein now moves to strike the State of Connecticut's apportionment complaint against him on the ground the complaint " is legally insufficient as the right of apportionment liability is not available under [General Statutes] § 52-102b to an underlying contractual right for uninsured motorist benefits." The defendant, State of Connecticut, filed a memorandum of law in opposition. The court heard argument on the matter at short calendar on May 8, 2017.
II
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegation of any complaint . . . to state a claim upon which relief may be granted." Practice Book § 10-39(a)(1). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Sec. Servs. USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
In his memorandum of law in support of his motion to strike the apportionment complaint, the apportionment defendant, Altenhein, argues that the apportionment complaint is legally insufficient and distinguishable from the Supreme Court's decision of Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001) because the apportionment complaint only alleges negligence of Gladu, " does not name or seek to recover damages from apportionment defendant Aaron Altenhein, " or " involve an unidentified driver on whose behalf the defendant underinsured motorist insurer is acting as a surrogate."
In fact, paragraph seven of the apportionment complaint alleges that Gladu negligently and carelessly operated her motor vehicle on August 7, 2014. Paragraph nine of the apportionment complaint sounds in negligence against Altenhein. The apportionment complaint seeks to apportion liability " as to Aaron Altenhein with regard to the claims by Michael Quagliaroli." For the reasons advanced in this memorandum, this court holds that Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 718 applies and the State of Connecticut may bring its apportionment complaint against Altenhein pursuant to General Statutes § § 38a-336, 52-102b and 52-572h.
The apportionment plaintiff, State of Connecticut, counters in its memorandum of law that Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 718, is binding upon this court and the apportionment complaint is proper. The State of Connecticut explains the plaintiff had " plead over" his complaint on January 26, 2017 against Altenhein, so apportionment is permitted under Collins v. Colonial Penn Ins. Co., supra, 742, which found " if the plaintiff had filed claims against two tortfeasors and subsequently released or settled with one, the remaining defendant would still be allowed the opportunity, pursuant to General Statutes § 52-102b and 52-572h, to have the jury apportion the percentage of negligence of each tortfeasor."
The State of Connecticut further argues that " a UM/UIM claim is the functional equivalent of a negligence claim because the UM/UIM carrier's liability is premised on the negligence of the allegedly uninsured or underinsured tortfeasor, [so] there should be no bar to including additional tortfeasors in the action by way of an apportionment complaint. The fact that the plaintiff initially overlooked a potentially liable tortfeasor (now cured by way of an amended complaint) should not prevent the UM/UIM carrier from including such tortfeasors in the litigation since the UM/UIM carrier's role is to provide benefits only to the extent that the responsible tortfeasors do not have insurance or have insufficient insurance. See [General Statutes] § 38a-336. Barring the apportionment of Mr. Altenhein would be contrary to the purpose and concept behind underinsured motorist coverage."
A. Underinsured Motorist Benefits & Apportionment Under Collins v. Colonial Penn Ins. Co.
General Statutes § 38a-336(b) provides in relevant part: " An insurance company shall be obligated to make payment to its insured up to the limits of the policy's uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgment or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured's uninsured and underinsured motorist coverage, exceed the limits of the insured's uninsured and underinsured motorist coverage . . ."
General Statutes § 52-102b provides in relevant part: " (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 . . ." " Section 52-102b provides the exclusive mechanism by which a defendant may make a person the plaintiff has elected not to sue a party to the action so as to obtain consideration of that person's negligence in any apportionment of liability." Chambers v. Quiles, Superior Court, judicial district of Hartford, Docket No. CV-16-6071136-S (May 4, 2017, Noble, J.) [64 Conn.L.Rptr. 401, ] (referencing General Statutes § 52-102b(f), which provides " [t]his 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").
Our Supreme Court in Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 726, addressed the issue of whether the trial court " improperly refused to instruct the jury regarding the issue of apportionment" of negligence where the plaintiff sought recovery between multiple insurers for uninsured motorist claims. The Supreme Court in Collins v. Colonial Penn. Ins. Co., supra, 733, addressed its earlier holding in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 24-25, 699 A.2d 964 (1997), that " underinsured motorist payments are not purely contractual in nature because such payments operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor . . . [U]nderinsured motorist benefits arc sui generis. They are contractual, but depend on principles of tort liability and damages. Whether in any particular case underinsured motorist benefits should be treated as are other types of insurance must depend on a case-by-case analysis of the underlying purpose and the principles that apply to such benefits." (Internal quotation marks omitted.) The Supreme Court found " because the uninsured motorist carrier stepped into the shoes of, and acted as a surrogate for, the unidentified tortfeasor for purposes of characterizing payments under the uninsured motorist carrier, the relationship between the underinsured motorist carrier and the defendant may be viewed as analogous to that of joint tortfeasors, and thus that the general tort rule precluding double recovery from joint tortfeasors should apply." (Internal quotation marks omitted.) Collins v. Colonial Penn. Ins. Co., supra, 734.
" The uninsured [and underinsured] motorist statutes and regulations incorporate the negligence law of liability and damages involving claims where joint tortfeasors are present. The uninsured [and underinsured] motorist statute, General Statutes § 38a-336(a)(1), mandates uninsured [and underinsured] motorist protection of persons insured thereunder who are legally entitled to recover damages . . . Where, as here, more than one [statutory provision] is involved, [the Supreme Court] presumes that the legislature intended them to be read together to create a harmonious body of law . . . and [the Supreme Court] construe[s] the [statutory provisions], if possible, to avoid conflict between them . . . [The Supreme Court] conclude[s] that the legislature, in enacting § § 52-572h and 38a-336, did not intend to create a separate law of damages for uninsured [and underinsured] motorist claims different from that which exists for traditional negligence awards. An insured, therefore, is legally entitled to recover damages under § 38a-334-6(a), [his] damages after they properly are apportioned pursuant to the dictates of § 52-572h." (Citation omitted; emphasis omitted; footnotes omitted; internal quotation marks omitted.) Id., 742.
General Statutes § 52-572h describes the apportionment process. Section 52-572h provides in relevant part: " (c) In a negligence action to recover damages resulting from personal injury . . . or damage to property . . . 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 . . . (d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable . . . damages by a fraction in which the numerator is the party's percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury . . . including settled or released persons under subsection (n) of this section . . . (f) The jury or, if there is no jury, the court shall specify . . . the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred percent, 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 . . ." (Emphasis in original.) Collins v. Colonial Penn, supra, 257 Conn. 736-37.
In the present case, our Supreme Court's decision in Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 718, is dispositive of whether the State of Connecticut may bring its apportionment complaint against Altenhein to establish his negligence, when the payment of underinsured motorist benefits is at issue, and the plaintiff has released his claims against his underinsured motorist carriers, Progressive and Travelers. Our Supreme Court in Collins held it is appropriate to read the apportionment statute, § 52-572h, and the uninsured and underinsured motorist statute, § 38a-336, together. Id., 742. The plaintiff, therefore, may " legally [be] entitled to recover damages under [§ 38a-336], [his] damages after they properly are apportioned pursuant to the dictates of § 52-572h." See Id. For this reason, the State of Connecticut's apportionment complaint is legally sufficient under § 52-102b, and the court denies Altenhein's motion to strike the apportionment complaint.
III
CONCLUSION
For the reasons stated, the court denies Altenhein's motion to strike the apportionment complaint.
SO ORDERED.
" Subsection (n) of § 52-572h provides that '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 [§ 52-572h] . . . The underlying rationale of subsection (n) is that, rather than a settlement reducing the amount of the jury or arbitration award dollar-for-dollar . . . the amount of the award is reduced by the settling party's percentage of negligence. Thus, if a claimant settles with one potential tortfeasor, the plaintiff is allowed to keep the amount of that settlement, but the award against the remaining tortfeasor is reduced by the percentage of negligence attributable to the settling tortfeasor." (Emphasis in original; internal quotation marks omitted.) Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 734-35.