Opinion
No. CV04 0287569-S
March 15, 2006
CORRECTED MEMORANDUM OF DECISION DEFENDANT'S MOTION TO STRIKE #109
FACTS
On April 14, 2004, the plaintiff, Olga Roklen, commenced this action by serving a summons and a two-count complaint against the defendants, Donna Presnell (Presnell) and Yvonne and Raymond McLaughlin (the McLaughlins). According to the complaint, this action arises out of injuries and losses sustained by the plaintiff as a result of a three-car accident, which occurred on July 29, 2002, in Woodbridge. Counts one and two allege negligence against Presnell and the McLaughlins, respectively, in that they failed to use reasonable care regarding the operation of their vehicles, and thereby, caused them first to collide with one another, and subsequently, with the vehicle that was driven by the plaintiff.
Yvonne McLaughlin was allegedly driving a vehicle owned by Raymond McLaughlin.
The McLaughlins filed an answer to the plaintiff's complaint on November 12, 2004, wherein they asserted an apportionment cross claim against Presnell pursuant to General Statues § 52-572h, alleging that she was responsible, in whole or in part, for the plaintiff's injuries. On November 22, 2004, Presnell filed a motion to strike the McLaughlins' cross claim and a memorandum of law. On February 17, 2005, the McLaughlins filed a memorandum in opposition.
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). "Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim . . . that party may do so by filing a motion to strike the contested pleading or part thereof . . ." Practice Book § 10-39(a). The role of the trial court in ruling on a motion to strike is "to examine the [pleading], construed in favor of the [pleading party], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
Presnell moves to strike the McLaughlins' cross claim on the ground it fails to state a claim upon which relief can be granted. While acknowledging that a split of authority exists in the Superior Court on this issue, Presnell urges this court to adopt the majority view that § 52-102b precludes a party from asserting an apportionment cross claim against a person such as Presnell, who is already a defendant in a lawsuit.
The McLaughlins counter by urging this court to adopt the view that § 52-102b does not apply to circumstances in which a party asserts an apportionment cross claim against another party. They insist that because the relevant portion of the statute only pertains to persons who are not parties to a pending claim, it does not shelter a named defendant, such as Presnell, from a cross claim for apportionment. The McLaughlins buttress their position by predicting that if this court grants Presnell's motion to strike, they will be unfairly limited at trial from raising facts and theories of negligence that are different from those alleged by Roklen. Moreover, the McLaughlins assert that Presnell would be unfairly disadvantaged at trial if the court granted the Presnell's motion to strike and then subsequently allowed the McLaughlins to raise facts and negligence theories that are different from those raised by Roklen.
General States § 52-102b(a) provides in relevant part: "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 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 . . . (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." (Emphasis added.) "General Statutes § 52-102b(a) is the procedural vehicle by which a defendant in a negligence action may bring in a party for apportionment of liability purposes." Henriques v. Magnavice, 59 Conn.App. 333, 337, 757 A.2d 627 (2000).
The Connecticut appellate courts have not ruled on the issue raised by this motion, and a split of authority exists at the trial court level. DiMaggio v. Tuck, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285298 (February 26, 2004, Wiese, J.) ( 36 Conn. L. Rptr. 579). "The majority of Superior Court decisions hold that General Statutes § 52-102b precludes a cross claim for apportionment against someone who is already a party to the action." Ayalon v. Breakstone, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0078878 (December 5, 2003, Cremins, J.); citing Lackard v. Vandecar, Superior Court, judicial district of Hartford, Docket No. CV 01 0806605 (January 7, 2002, Rittenband, J.T.R.); Rubbak v. Thompson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180009 (April 6, 2001, Lewis, J.) ( 29 Conn. L. Rptr. 316); Apicelli v. Indian Nations, Superior Court, judicial district of New London at Norwich, Docket No. 0119305 (December 11, 2000, Martin, J.).
Generally, the decisions of the court that adopt the majority rule do so on the basis of the plain language and legislative history of § 52-102b as well as the fact that apportionment is already available to parties to negligence actions. For example, adopting the majority view in DiMaggio, the court opined that, "[i]t is clear from the plain language of § 52-102b(a) that the statute applies only to persons not already parties . . . Where the words of a statute are clear and unambiguous courts are not free to infer a meaning other than that expressed in its plain language . . . Courts cannot, by construction, read into statutes provisions which are not clearly stated." Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn.App. 352, 355, 561 A.2d 981 (1989).
"This conclusion is further buttressed by a review of the legislative history of General Statutes § 52-102b. Seeking a clarification on whether the term party as used in the statute refers to someone who is party to the lawsuit . . . Representative Lawlor, one of the proponents of the bill replied: Yes. In fact, it would mean anyone who is actually a party to the lawsuit." (Citations omitted; emphasis original; internal quotation marks omitted.) DiMaggio v. Tuck, supra, 36 Conn. L. Rptr. 580.
This issue has also been raised in the context of cross claims. "Under General Statutes § 52-102b(a) apportionment claims may not be brought against parties to an action. The purpose of this provision is to allow a defendant to bring a non-party into the case for apportionment purposes. The logic underlying this restriction is evident in the language of [§ 152-102b(c), which provides that notice of apportionment is unnecessary where the person against whom apportionment is sought was previously a party to the action. The apportionment claim under § 52-102b is clearly designed to provide the court with notice that the defendant may not be wholly liable." Pouliot v. Paul Arpin Van Lines, Inc., 303 F.Sup.2d 135 (D.Conn. 2004) (holding apportionment cross claim precluded by § 52-102b).
"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." Desmosthene v. Spignolio, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0186972 (July 24, 2002, Lewis, J.).
"On the other hand, a minority of judges have held that apportionment complaints may be filed against existing parties. See, e.g., Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. 0429034 (March 27, 2001, Blue, J.) ( 29 Conn. L. Rptr. 311, 312) (allowing apportionment complaint against plaintiff); Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 0423742 (June 14, 2000, Levin, J.) ( 27 Conn. L. Rptr. 403, 404)." (Citations omitted; internal quotation marks omitted.) DiMaggio v. Tuck, supra, 36 Conn. L. Rptr. 580. The opinions that follow the minority view have articulated several grounds for doing so. Primarily, the minority view holds that § 52-102b(a) is irrelevant to persons that are already parties to a suit. "[Section 52-102b(a)] applies only to bringing new parties into a lawsuit for purposes of apportioning liability. It does not apply to the assertion of apportionment claims against existing parties . . . Hence, General Statutes § 52-102b is inapplicable [where the] defendant does not seek to add an additional party." Torres v. Begic, supra, 27 Conn. L. Rptr. 404. At least one opinion following the minority view has further observed, "the legislative history is strikingly silent on whether or how an apportionment claim may be asserted by a defendant against another party . . . The silence of § 52-102b and its legislative history is significant when viewed with reference to its `common law' antecedent. Prior to the enactment of the statute in 1995, judges routinely entertained apportionment complaints by defendants against other parties . . . If the legislature had intended to preclude apportionment claims by defendants against existing parties, it could have done so and would have done so in clear language. It did not." (Citations omitted.) Id., 405. Additionally, the minority view points out that "there is nothing preventing a defendant who seeks apportionment from asserting grounds of negligence different than those asserted by the plaintiff. If an apportionment complaint is not permitted or required against a present party, that party may have no notice of the claim for apportionment let alone the specifications of negligence until the end of the presentation of evidence. Nor may that party have any pretrial notice, in the way of discovery, of the evidence (including expert evidence) to be presented against him." Id., 406. Finally, unlike the majority view, the minority view ostensibly enables apportionment even in the case where a potentially liable co-plaintiff withdraws from a suit.
Although the minority view would lead to a preferred outcome in some circumstances, the reasoning employed by the majority view is more persuasive under the facts of this case. Consistent with the majority of opinions of the Superior Court that have decided this issue, the court therefore grants Presnell's motion to strike the McLaughlins' apportionment cross claim.