Opinion
No. CV08 501 73 53 S
May 13, 2009
MEMORANDUM OF DECISION
This action is based on a complaint filed by two purchasers of real estate in Norwalk, Connecticut, against the attorney who was retained to represent them in the sale. The plaintiffs, who live in England, granted the defendant a durable power of attorney to allow her to execute the necessary documents for them related to the purchase of the real estate. The plaintiffs "maintain that the Defendant was negligent in failing to warn the Plaintiffs of the existence of a water pipe easement to the Second Taxing District of the City of Norwalk" after the plaintiffs allegedly disclosed to the defendant prior to closing that they intended to make "extensive renovations" to the property. The plaintiffs argue that the easement negatively affected their ability to perform certain renovations, including the construction of a garage, and that "they were required to re-design their plans and to negotiate and pay for the relocation of the Easement." Importantly, the plaintiffs contend that they were "deprived of the full intended use of the property for a substantial period of time." The claim for loss of use is made in paragraph seventeen of the complaint, the recital of facts, and not in the three counts.
Counts one through three of the plaintiffs' complaint are for "professional negligence," "negligence as attorney-in-fact" and "breach of duty," respectively. The plaintiffs' claim money damages, costs and expenses, interest and such other relief in law or equity as the court may deem just and proper. The plaintiffs and three apportionment defendants have moved to dismiss the defendant's apportionment complaint for lack of subject matter jurisdiction.
"General Statutes § 52-102b is 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 . . . The statute provides, in pertinent part, [that] [a] defendant in any civil action to which § 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 . . ." (Citations omitted; internal quotation marks omitted.) Whitaker v. Erdos Maddox, Superior Court, judicial district of Fairfield, Docket No. CV 00 0371896 (November 14, 2000, Skolnick, J.).
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 . . ."
General Statutes § 52-572h provides in relevant part: "(b) 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 . . . (c) 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(k) provides: "This section shall not apply to breaches of trust or of other fiduciary obligation."
In Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 660, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004), the Appellate Court stated that "[t]he jurisdiction a trial court has over an apportionment claim differs from its jurisdiction over direct claims asserted by a plaintiff against an apportionment defendant. Here, the court lacked subject matter jurisdiction over the apportionment action because § 52-102b(a) limits apportionment to civil action[s] to which [General Statutes §] 52-572h applies . . . Section 52-572h(b) applies to causes of action based on negligence . . . to recover damages resulting from personal injury, wrongful death or damage to property . . . The court had no power to adjudicate the apportionment complaint based on a legal malpractice action . . ." (Emphasis in original; internal quotation marks omitted.) See also Brown, Paindris Scott v. Herbasway, Superior Court, judicial district of Hartford, Docket No. CV 030828210 (July 1, 2005, Shapiro, J.) (Granting motion for summary judgment on apportionment complaint where only economic loss, not loss of use of property, was claimed in legal malpractice setoff/counterclaim.).
In Shevlin v. Shafran, Superior Court, judicial district of Danbury, Docket No. CV 99 0337189 (November 6, 2001, Moraghan, J.), the court examined the Carpenter holding, stating that "[t]he court held that because, the plaintiff claims only economic loss and not physical damage to or loss of use of property, § 52-572h does not apply to the plaintiff's claims. The court further found apportionment to be inapplicable because § 52-572h(k) specifically states that [t]his section shall not apply to breaches of trust or of other fiduciary obligation." The court went on to strike the apportionment complaint because "[o]ur case law and public policy do not yet permit a plaintiff's former attorney, in a legal malpractice action, to seek apportionment from a successor attorney if indeed they ever will. Further, § 52-572h(k) states that apportionment is not available to breaches of trust or other fiduciary obligations and, here, Shevlin has alleged a cause of action for breach of fiduciary duty against Shafran." Id. Thus, the Shevlin court determined, in light of the Carpenter holding, that there are two independent grounds by which an apportionment complaint may be barred by § 52-572h: if only economic loss is claimed or if the cause of action is a breach of trust or other fiduciary obligation.
In Whitaker v. Erdos Maddox, supra, Superior Court, Docket No. CV 00 0371896, the court granted a motion to strike an apportionment complaint "on the ground that a claim for apportionment of liability, pursuant to General Statutes §§ 52-102b and 52-572h, by a predecessor attorney against a successor attorney in a legal malpractice action is barred as against public policy . . . In reaching this conclusion, the court examined, among other things, "the apportionment defendant['s] [contention] that the apportionment complaint should be stricken because under § 52-572h, an apportionment complaint cannot be brought in an action that is based on breach of a fiduciary obligation. General Statutes § 52-572h(k) provides [that] [t]his section shall not apply to breaches of trust or of other fiduciary obligations. The Supreme Court has stated that the relationship between an attorney and client must involve personal integrity and responsibility on the part of the lawyer and an equal confidence and trust on the part of the client . . . The relationship between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith . . . Accordingly, the court [found] the apportionment concept to be inapplicable to the present case." (Citation omitted; internal quotation marks omitted.) Whitaker v. Erdos Maddox, supra, Superior Court, Docket No. CV 00 0371896.
It must be noted that the Whitaker and Shevlin cases involved a successor attorney situation, where the successor attorney defendant attempted to apportion liability to a previous attorney. This situation is not applicable to the present case.
Likewise, in Burant Associates v. Alamar Associates, Superior Court, judicial district of Fairfield, Docket No. CV 05 4009081 (April 5, 2006, Gilardi, J.), this court followed the holding of Carpenter v. Law Offices of Dressler Associates, LLC, supra, 85 Conn.App. 655, when it granted a motion to dismiss an apportionment complaint based on a legal malpractice action.
The defendant argues that contrasting authority exists in the case of Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 582, 657 A.2d 212 (1995), where the Supreme Court recognized "that the phrase `damage to property' is susceptible to a broad interpretation and could be extended beyond its usual and ordinary connotation of physical damage to tangible property, so as to include purely commercial damage." The court concluded that "[r]eading § 52-572h(b) in light of its history . . . the legislature intended the phrase `damage to property' to encompass only its usual and traditional meaning in the law of negligence actions, namely, damage to or the loss of use of tangible property, as opposed to damages for personal injury . . . Furthermore, the legislative history of § 52-572h is silent regarding the legislative intent behind the use of the phrase `damage to property.' We can find no justification in that history, therefore, for reading that phase in other than its traditional sense of physical damage to tangible property. As a matter of statutory interpretation, therefore, we simply cannot stretch the meaning of `damage to property,' as used in § 52-572h(b), to include commercial losses unaccompanied by physical damage to or loss of use of tangible property . . . [T]he term `damage to property,' as used in § 52-572h, does not include purely commercial losses." (Citations omitted; internal quotation marks omitted.) Id., 583-84. The Supreme Court did not elaborate on the meaning of "loss of use of tangible property," which the defendant argues allows the apportionment complaint under § 52-572h(c), because the plaintiffs' underlying claims include "loss of use of property."
In the present case, the plaintiff alleges in its complaint dated July 3, 2008, causes of action arising under "professional negligence," "negligence as attorney-in-fact" and "breach of duty." The defendant seeks to apportion any liability under these causes of action to four apportionment defendants who were architects or surveyors involved in the acquisition of the subject property. The defendant has not directly taken up the issue raised by § 52-572h(k) in its memoranda.
Whether the plaintiff has claimed loss of use in its complaint is inconsequential in this matter under the law expressed in Carpenter v. Law Offices of Dressler Associates, LLC, supra, 85 Conn.App. 660, Shevlin v. Shaftan, supra, Superior Court, Docket No. CV 99 0337189 and Whitaker v. Erdos Maddox, supra, Superior Court, Docket No. CV 000371896, because the complaint is based on "professional negligence," "negligence as attorney-in-fact" and "breach of duty," i.e. a claim for legal malpractice, which is prohibited by § 52-572h(k). Authority does exist, as discussed above in Williams Ford, from which it may be inferred, although it is not clearly stated, that the court would allow an apportionment complaint for commercial losses accompanied by loss of use of tangible property under the auspices of "damage to property" in § 52-572h(b). Williams Ford is distinguishable, however, because it was not a case in which the apportionment complaint alleged legal malpractice, so as to come under the purview of § 52-572h(k). Accordingly, § 52-572h(k) is a bar to the defendant's apportionment complaint here.
The motion to dismiss is granted.