Opinion
No. CV 97 0482913 S
August 25, 1999
MEMORANDUM OF DECISION
Presently before the court are the defendant's motions to cite in an additional party and to disqualify. The following facts are relevant to the disposition of these motions. On September 3, 1997, Alyssa Rivera (plaintiff) brought the current legal malpractice suit against the defendants, Louis D. Ferreri (Ferreri) and Rubenstein Sendy, L.L.C. (Rubenstein Sendy). In her original and subsequently amended complaints, the plaintiff alleged that Ferreri and Rubenstein Sendy agreed to represent her in a personal injury claim against various defendants.
Evelyn Rivera, as mother and next friend, brought this action and the underlying personal injury action on behalf of her minor daughter, Alyssa Rivera.
On August 26 and 27, 1997, the plaintiff brought the underlying personal injury action to the Superior Court in the judicial district of New Haven at Meriden.
The facts of the underlying personal injury claim are as follows: In October, 1994, the minor plaintiff, Alyssa Rivera, was a preschool student enrolled in a school program for children with developmental delays in Meriden, Connecticut. Rivera was transported to and from school via a school bus, which was owned and operated by Double A Transportation. On October 14, 1994, unbeknown to the bus driver or school personnel, Rivera did not disembark at the school that morning. Consequently, she remained on the bus for several hours after the driver returned the bus to the company lot in Wallingford, Connecticut. Double A personnel discovered Rivera on the bus, however, after school officials made an inquiry with the bus company. Rivera allegedly suffered great emotional distress, which aggravated her underlying developmental delays, and associated pain and suffering as a result of the incident.
On August 26 and 27, 1997, suit was filed on the minor child's behalf against Double A Transportation, the city of Meriden, the Meriden Board of Education, and their agents, servants and employees. On the basis of the above events, "the plaintiff brought a four count complaint alleging one count of negligent infliction of emotional distress and one count of false imprisonment against Double A and the municipal employees." Rivera v. Double A Transportation, Inc., 248 Conn. 21, 23, 727 A.2d 204 (1999). The law firm of Cella, McKeon Williams, P.C., which represents the plaintiff in the present legal malpractice action, also represented the plaintiff at trial.
The trial court, Levine, J., entered summary judgment in favor of the defendants as to the two negligent infliction of emotional distress counts on the ground that they were not brought within the applicable two-year statute of limitations period and thus, were barred under General Statutes § 52-584. In ruling, the court rejected the plaintiff's argument that because the plaintiff suffered emotional injuries in the absence of physical injuries, the three-year statute of limitations period in General Statutes § 52-577 governed the case. "Following the defendants' motion for reconsideration and reargument, the trial court granted the motions for summary judgment as to the false imprisonment counts, thereby rendering judgment on the entire complaint for the defendants." Rivera v. Double A Transportation, Inc., supra, 248 Conn. 23. (Amended Compl. ¶¶ 16, 17.)
The plaintiff subsequently appealed. Attorney Louis D. Ferreri of Rubenstein Sendy, L.L.C., defendants in the present malpractice action, represented the plaintiff in her appeal of the underlying personal injury case.
In March, 1999, the Connecticut Supreme Court affirmed the trial court's judgment in favor of the defendants. Noting that it could not find a single case supporting the plaintiff's argument that the phrase "injury to person" applied solely to physical injury and not emotional injury unaccompanied by physical injury, Rivera v. Double A Transportation, Inc., supra, 248 Conn. 26, the court, Katz, J., held that the negligent infliction of emotional distress claims were governed by the two-year statute of limitations period in § 52-584. Id. 31. The court further held that the false imprisonment claims were also barred under § 52-584 for the same reasons. Id., 31-32. Without deciding whether to recognize a claim for negligent false imprisonment, the court reasoned that the plaintiff's argument rested "entirely on her proposed distinction [between emotional and physical injury which] we have already rejected." Id., 32.
The court refused to decide the plaintiff's third claim that summary judgment was improperly granted because there was "a material issue of fact as to whether the defendants' conduct constituted intentional false imprisonment, an intentional tort governed by § 52-577[,]" Rivera v. Double A Transportation, Inc., supra, 248 Conn. 32, because it was not properly preserved at the trial level. The court's decision not to entertain the plaintiff's third claim was based on the following events. First, the plaintiff's objection to the defendants' motions for summary judgment at trial was limited to the "injury to the person" argument. Second, since there was no request for oral argument or for testimony on the motions at the trial level, no transcript was filed with the appeal. Third, "the trial court did not have the opportunity to rule on the plaintiff's claim that there existed an issue of material fact as to the defendants' intent. Id., 33. Without an adequate record on which it could render a decision on review, the court refused to address the intent argument.
Count one of the amended complaint alleged that Ferreri negligently represented "the plaintiff mother and minor plaintiff in that he failed to bring lawsuits on their behalf . . . within the applicable two-year statute of limitations as set forth in Connecticut General Statutes § 52-584, to the legal and financial detriment of the plaintiffs." (Amended Compl. ¶ 18.) Count two realleged the foregoing allegations as against Rubenstein Sendy.
On November 9, 1998, the plaintiff withdrew count one of the amended complaint against Ferreri. Thus, Rubenstein Sendy is the sole defendant in the present case.
On July 28, 1998, Rubenstein Sendy filed an answer denying the allegations of legal malpractice contained in paragraph eighteen. Rubenstein Sendy further asserted two special defenses. The first special defense asserted that any failure of the plaintiff to recover in the underlying personal injury action "resulted in whole or in part from the negligence of the plaintiff or her legal representatives in that they failed to handle the underlying case with reasonable care and skill." (1st Special Def., 6/24/98.) In the second special defense, Rubenstein Sendy asserted that "the plaintiffs failed to mitigate damages in that they or their agents fraudulently took the underlying case from [Rubenstein Sendy] and intentionally lost [the case] for the purpose of preventing the pendency of or a successful result in the underlying case from serving as a bar to the maintenance of the instant case." (2nd Special Def., 6/24/98.)
On July 28, 1998, Rubenstein Sendy filed the motion to cite in Cella, McKeon Williams, P.C. (Cella, McKeon Williams) as party defendants which is presently before the court. Subsequently, on August 12, 1998, Rubenstein Sendy filed the motion to disqualify Cella, McKeon Williams from acting as plaintiff's counsel in the current action which is also presently before this court. The court will address Rubenstein Sendy's motion to cite in before proceeding to taking up the motion to disqualify.
DISCUSSION
Rubenstein Sendy moved to cite in Cella, McKeon Williams as a third party defendant on the ground that the present case cannot be fully adjudicated without consideration of all the causal factors which led to the trial court's entry of summary judgment against the plaintiff, including the intentional or negligent conduct of Cella, McKeon Williams in losing the underlying action at the trial level. In a supporting memorandum of law, Rubenstein Sendy cited General Statutes § 52-107 as the basis for citing in additional parties and argued that the court cannot make a complete determination of the issues without litigating the question of whether the intervening actions of Cella, McKeon Williams caused the plaintiff's losses.
In response, the plaintiff objected to the motion to cite in on the grounds that the motion was procedurally improper, inappropriate and without basis, and not necessary for a complete determination of the present controversy. In a supporting memorandum of law, the plaintiff argued that the sole procedural vehicle for citing in another defendant in the present action is via the apportionment statute, General Statutes § 52-102b. The plaintiff further argued that no additional defendants are necessary to adjudicate the relevant issues because Rubenstein Sendy's statute of limitations argument is a question of law, not a question of fact.
On August 13, 1998, Rubenstein Sendy filed a response to the plaintiff's objection to the motion to cite in an additional defendant. It argued that § 52-102b does not apply because the present "action claims pecuniary loss rather than personal injury or property damage." (Def.'s Resp. Re Mot. To Cite In, 8/13/98, p. 2.) It further argued that because the alleged negligence of the proposed defendant did not occur until after the statutorily prescribed time period had expired, it would not have been able to bring an apportionment complaint even if it so desired. In a subsequently filed supplemental memorandum of law in support of the motion to cite in and the motion to disqualify, Rubenstein Sendy argued that the Connecticut Supreme Court's decision in Rivera v. Double A Transportation, Inc., 248 Conn. 21, 727 A.2d 204 (1999), requires Cella, McKeon Williams to enter the action as an indispensable third-party defendant.
Rubenstein Sendy's motion to cite in Cella, McKeon Williams is denied without prejudice for the foregoing reasons. The admission of new parties into an action comes within the broad discretion of the trial court. Washington Trust Co. v. Smith, 241 Conn. 734, 740, 699 A.2d 73 (1997); Horton v. Meskill, 187 Conn, 187, 192, 445 A.2d 579 (1988); Investors Mortgage Co. v. Rodia, 31 Conn. App. 476, 480, 625 A.2d 833 (1993). "Factors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the applicant's presence will enable the court to make a complete determination of the issues." A. Secondino Son, Inc. v. LoRicco, 19 Conn. App. 8, 14, 561 A.2d 142 (1989); see also Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980).
As a consequence of the haphazard nature of the party's pleadings, not to mention the possible impact of the Supreme Court's recent decision in Rivera v. Double A Transportation, Inc. on the parties' positions on the present motions, it is not fully clear to the court for what purposes Rubenstein Sendy now seeks to cite in Cella, McKeon Williams.
Aside from the lack of clarity as to the factual underpinnings of the motion to cite in, Rubenstein Sendy has failed to follow the necessary procedures for bringing in an additional party for the purposes of indemnification and apportionment. General Statutes § 52-107, which Rubenstein Sendy cited in its accompanying memorandum of law, does not provide a basis for citing in Cella, McKeon Williams. Section 52-107 provides: "The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party." Thus, § 52-107 bestows authority on the court to admit additional parties and provides persons not parties to the action the right to intervene under certain circumstances, none of which are applicable to the present case. Washington Trust Co. v. Smith, 241 Conn. 734, 699 Conn. A.2d 73 (1997); Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1988). "[General Statutes § 52-107 and Practice Book § 9-18] do not provide for a motion by the [defendant] to add additional parties; rather, they refer to the court's own power to add parties on its own motion or on the motion of the interested party who wished to be made a party to the action." State v. Premises at 79 Lake Ave., Superior Court, judicial district of Danbury, Docket Nos. 311701, 311703 (November 12, 1996, Moraghan, J.) ( 18 Conn. L. Rptr. 216).
The court assumes that Rubenstein Sendy is seeking to bring in Cella, McKeon Williams for the purposes of indemnification and apportionment. See Def.'s Proposed Cross-Complaint, 7/24/98.
Practice Book § 9-18 [formally § 99], which is nearly identical to General Statutes § 52-107, provides: "The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party."
A claim for indemnification is appropriately brought pursuant to General Statutes § 52-102a and Practice Book § 10-11. Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989); see also Sims v. Honda Motor Co., 225 Conn. 401, 417, 623 A.2d 995 (1993) ("the legislature has enacted statutes allowing a tortfeasor to implead, in certain circumstances, potentially liable joint tortfeasors"); Branford v. Herzig, 33 Conn. App. 714, 724, 638 A.2d 608 (1994) ("if the defendant believed that a nonparty was responsible for some or all of the plaintiff's injuries, it was his responsibility to implead that nonparty") Section 52-102a provides in relevant part: "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." General Statutes § 52-102a (a). "Pursuant to section 52-102a, [t]he defendant . . . [does] not have a statutory right to implead a third party; the statute commits the decision of such motions to the sound discretion of the trial court." (Emphasis in original; internal quotation marks omitted.) Hajjar v. Frederick L. Bultman, Inc.,Superior Court, judicial district of Danbury, Docket No. 316244 (February 9, 1995, Leheny, J.) ( 13 Conn. L. Rptr. 434) (quoting Cupina v. Bernklau, 17 Conn. App. 159, 164, 551 A.2d 37 (1988)).
Practice Book § 10-11(a) [formally § 117] is nearly identical to General Statutes § 52-102a.
Rubenstein Sendy's proposed cross-complaint fails to comply with the requirements of § 52-102a. "As a fundamental and threshold requirement, a third party plaintiff must allege that the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff's claim against him." Commissioner v. Lake Phipps Land Owners Corp., 3 Conn. App. 100, 102, 485 A.2d 580 (1985). Nowhere in the proposed cross-complaint does Rubenstein Sendy allege that Cella, McKeon Williams are or may be liable to it for all or part of Rivera's claim against it. Rather, Rubenstein Sendy merely alleges that if Rivera suffered any damages, they were caused by Cella, McKeon Williams' actions. (Def.'s Proposed Cross-Complaint, 7/24/98, 6 ¶ 15.) Clearly, this sole allegation falls short of the requirements of § 52-102a. See Commission v. Lake Phipps Land Owners Corp., supra, 3 Conn. App. 100 (upholding dismissal of third party complaint on the ground the defendant failed to allege that the third party defendant was liable to the third party plaintiff for plaintiff's injuries); see also Clark v. Vin Agency, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 326940 (August 18, 1997, Skolnick, J.) ( 20 Conn. L. Rptr. 286) (defendant/third-party plaintiff apportionment complaint may not refer to indemnification)
Furthermore, General Statutes § 52-102b provides the exclusive method of bringing an apportionment defendant into a negligence action. General Statutes § 52-102b (f); Bhinder v. Sun Company, Inc., 246 Conn. 223, 231, 717 A.2d 202 (1998); Paul v. McPhee Electrical Contractors, 46 Conn. App. 18, 21, 698 A.2d 354 (1997). Section 52-102b provides in relevant part: "A defendant in any civil action to which section 52-172h 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 § 52-102b (a); see also Somma v. Gracey, 15 Conn App. 371, 378, 544 A.2d 668 (1988) (General Statutes § 52-572h applies to legal malpractice claims sounding in negligence); Center Capital Corporation v. Hall, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 452084 (February 24, 1994, Lavine, J.) ( 9 C.S.C.R. 342) (same); DeFusco v. Schweitzer, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 509663 (September 14, 1993, Hennessey, J.) ( 8 C.S.C.R. 1078) (same). Although Rubenstein Sendy's proposed cross-complaint includes a demand for apportionment of its liability, it was not served according to § 52-102b. See also Ketchale v. Unger, Superior Court, judicial district of New Haven at New Haven, Docket No. 396218 (July 15, 1988, Levin, J.) (holding that the 120 day period contained in § 52-102b is neither jurisdictional nor mandatory).
For all of the above reasons, Rubenstein Sendy's motion to cite in is hereby denied without prejudice. The court will not act on the pendent motion to disqualify in light of its denial of the foregoing motion to cite in.
Angela Carol Robinson Judge, Superior Court