Opinion
CV156053676S
04-14-2016
Caroline Sanon et al. v. Albert F. Paulin
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION TO STRIKE COUNTERCLAIM
William J. Wenzel, J.
This action arises from an automobile accident in which the vehicle being operated by the defendant allegedly ran into the rear of the vehicle being driven by Plaintiff Sanon (" driver") and occupied by Plaintiff Choute (" passenger"). The action comes before the court on the motion of the plaintiffs to strike a counterclaim filed by the defendant, which counterclaim seeks apportionment of the liability between the driver and the defendant for the injuries and damages claimed by the passenger. The particulars of the alleged accident are not otherwise remarkable.
By an amended answer and special defenses and counterclaim for apportionment (" answer"), the defendant denied several of the relevant allegations in the count asserted by each plaintiff, asserted a special defense against the driver for her own alleged negligence, and then asserted a counterclaim, pursuant to General Statutes § 52-572h, which sought an allocation of liability as to the driver for the percentage of her negligence that proximately caused injuries to the passenger. The motion before the court seeks to strike the counterclaim on the basis that General Statutes § 52-102b(a) " precludes apportionment of individuals who are already a party to [the] action."
STANDARD OF REVIEW
" 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). " 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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). The court " construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 252.
DISCUSSION
Both sides readily acknowledge that this very issue has been the subject of numerous Superior Court decisions without resolution or consensus as to the proper outcome, and neither side cites any controlling authority. The plaintiff's claim a majority of these decisions support their position. The argument advanced by the plaintiffs is on the basis of the statutory language found in § 52-102b(a), which 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 plaintiff's reason that this subsection sets out the exclusive manner in which claims for apportionment may be asserted and, hence, precludes apportionment with persons already a party to the action. The defendant, on the other hand, argues that this section is irrelevant.
Whether a true majority of decisions still supports plaintiffs' position here has increasingly been called into question. See Stash v. Stevens, Superior Court, judicial district of New Haven, Docket No. CV-13-6038058-S, (November 6, 2013, Vitale, J.). Because these labels continue to be used to describe the two schools of thought, however, this court will continue to use them.
The court has reviewed many of the decisions cited by each side as to the majority and minority views. Ultimately, the court determines that the motion to strike should be denied. While this decision coincides with the minority view, the court will state its logic and reasoning rather than simply side with a particular camp.
Compilations of the Superior Court decisions which comprise these two schools of thought can be found in
The rationale advanced by cases in the majority camp rests principally on the argument that § 52-102b(a) " applies only to persons not already parties ." (Emphasis in original; internal quotation marks omitted.) DiMaggio v. Tuck, Superior Court, judicial district of New Haven, Docket No. CV-03-0285298-S (February 26, 2004, Wiese, J.) (36 Conn. L. Rptr. 579, 580). Few cases, however, seem to really address what that means or why that observation supports their conclusion. None of the parties here, nor those in the cases this court has examined, argues that the right of a defendant to seek apportionment depends for its existence upon § 52-102b(a). Many of those parties argue, as does the defendant here, that the right to seek apportionment is already afforded by § 52-572h(c). See DiMaggio v. Tuck, supra, 36 Conn. L. Rptr. 579. Indeed, § 52-102b(a) only speaks to the manner in which defendants may effect service on persons who are not a party to the action . . ." The procedural process described in § 52-102b(a), however, is not needed where the apportionment defendant is already present in the case as a party. Nothing in that statutory language suggests to this court that it has any application outside the set of circumstances where a defendant seeks to join a new party. In other words, when a party seeks apportionment as to persons already parties, § 52-102b(a) does not apply and is not pertinent at all.
If this reading is correct, then the observation in majority decisions that § 52-102b(a) applies only to persons not already parties, while tautologically correct, carries no real meaning as to why it should preclude a claim for apportionment when the subject of that claim is already a party to the suit. If, as plaintiffs argue here, § 52-102b(a) does not apply to persons currently parties, how can the statute be applied so as to preclude claims against them? This seems a strained and unduly procedural argument.
Majority cases have also found support for their conclusions by claiming they are following the " clear language" of the statute; see, e.g., Arevalo v. Pohlot, Superior Court, judicial district of Danbury, Docket No. CV-14-6015519-S, (March 23, 2015, Truglia, J.); and that the legislative history of the statute confirms it does not apply to parties. See, e.g., Roklen v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV-04-0287569-S (March 15, 2006, Taylor, J.) (40 Conn. L. Rptr. 883, 884); DiMaggio v. Tuck supra, 36 Conn. L. Rptr. 580. Yet, as noted above, if the statute says it only applies to nonparties, the courts should follow that language and not apply it to persons not discussed in the section. Indeed, this court would suggest that its reading of the statute more closely follows the clear language and legislative history of the statute; subsection (a) says it only applies to nonparties, and this court declines to apply it to existing parties, especially when to do so may preclude otherwise meritorious claims against them.
This construction also avoids the conclusion that the legislature left a " gap" in the right of any party to have a fair apportionment of responsibility determined. Compare Coelho v. Mattiaccio, Superior Court, judicial district of Fairfield, Docket No. CV-04-4003506-S(July 20, 2005, Radcliffe, J.) (30 Conn. L. Rptr. 666) (where the court identifies the potential procedural gap which may jeopardize a defendant's right to seek apportionment and avoids it by adopting the " minority" view), with Arevalo v. Pohlot, supra, Superior Court, Docket No. CV-14-6015519-S (where the court, following the " majority" view, acknowledges the same procedural gap but leaves it to the legislature to fix it). When the language of a statute can be read harmoniously with other statutes to avoid finding fault with the legislative branch, this court will first look to that path.
Other than what this court believes is an unduly strained interpretation of § 52-102b(a), the plaintiffs offer no other arguments or authorities as to why this section should be read to preclude apportionment claims against persons already party to an action. The plaintiffs have identified no danger or harm which might be occasioned by having this claim for apportionment heard and resolved at the same time as all other issues in this case.
It seems to the court that recognizing this defendant's counterclaim for apportionment makes the claims and issues in this case immediately apparent to all the parties. It will allow both the parties and the trier of fact to determine in a single proceeding the claims of both plaintiffs and apply the principles of comparative negligence and apportionment in parallel. This reduces the danger of inconsistent verdicts and will expedite discovery and resolution of the case. Moreover, allowing the claim for apportionment to be made in the form of a counterclaim protects the right of the defendant to seek apportionment and avoids procedural machinations which might jeopardize that right. See Coelho v. Mattiaccio, supra, 30 Conn. L. Rptr. 666.
It seems to the court that any negligence of the plaintiff which led to this accident, whether measured for the special defense of comparative negligence or the counterclaim for apportionment, will involve the same factual issues and determinations by the finder of fact. ---------
CONCLUSION
For these reasons, the plaintiffs' motion to strike is denied.
Stash v. Stevens, supra, Superior Court, Docket No. CV-13-6038058-S; Roklen v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV-04-0287569-S (March 15, 2006, Taylor, J.) (40 Conn. L. Rptr. 883); and DiMaggio v. Tuck, Superior Court, judicial district of New Haven, Docket No. CV-03-0285298-S (February 26, 2004, Wiese, J.) (36 Conn. L. Rptr. 579).