Opinion
FSTCV176031570S
12-04-2018
Heather ST. JOHN v. The CLASSIC CONDOMINIUMS
UNPUBLISHED OPINION
OPINION
POVODATOR, JTR
This is an action based on an alleged sexual assault that occurred in the apartment that the plaintiff shared with an unrelated male (who had no direct involvement in the events in question). The plaintiff originally sued her assailant, David Fogel, as well as three entities associated with management, operation and security in the building in which her unit was located. The claims directed to the corporate defendants all sound in negligence. The two counts directed to Mr. Fogel allege intentional sexual assault and wanton/reckless sexual assault. Approximately seven months after the return date, a withdrawal was filed with respect to claims directed to Mr. Fogel (# 121.00), reportedly based on a settlement that was reached. (This appears to have been shortly after he pleaded guilty to a number of criminal charges arising from this incident.)
Approximately 7 months after the withdrawal had been filed, a pleading was filed by defendants The Classic Condominiums, Inc. and Plaza Realty & Management Corp., characterized/captioned as a "Notice of Intent to Seek Apportionment of Liability Against David Fogel" (# 135.00). The one-page document is brief enough that it can be quoted in its entirety:
NOW COME The Classic Condominiums, Inc. and Plaza Realty & Management Corporation, Defendants in the above-captioned action, and pursuant to Connecticut General Statutes Sections 52-572(h) and 52-102b, hereby declare their intent to seek an apportionment of liability from David Fogel for any damages that may be awarded to Plaintiff Heather St. John.
The undersigned Defendants have denied the allegations of negligence asserted by Plaintiffs against them. However, they assert that, if, and only if, Plaintiffs’ injuries and losses were caused by negligence and carelessness, then it was more likely due to the negligence of David Fogel. As such, pursuant to Connecticut General Statutes Sections 52-572(h) et seq., 52-102(b), and other applicable laws, the undersigned Defendants hereby declare their intent to seek an apportionment of liability against David Fogel.
Less than two weeks later, the plaintiff filed a motion to strike the notice of apportionment, arguing that it was impermissible to apportion liability between negligent parties (such as the moving parties) and another party-in this case, a settled party-whose responsibility was predicated on intentional misconduct. In addition to citing the relevant statutes, the plaintiff also cites binding appellate authority, Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 801-04 (2000), which noted that the amendment to General Statutes § 52-572h-adding what is now subsection (o) -was a direct response to Bhinder v. Sun Co., 246 Conn. 223 (1998). In Bhinder, the Supreme Court had held that under the then-existing version of § 52-572h, apportionment could apply to intentional or willful/wanton misconduct; the amendment to the statute was the legislative response.
"(o) Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556.
Emphasizing the "legislative overruling" quality of the addition of subsection (o) to § 52-572h is the fact that it was made effective retroactively to the date of the Bhinder decision.
The defendants then filed a two-page response/objection to the motion to strike (# 144.00). After summarizing the factual and procedural history leading up to the filing of the notice, the defendants largely repeat the contentions set forth in the notice, supplemented by some additional arguments. The court will quote and address the components of the defendant’s argument, as presented in the objection.
After reciting the background for the motion in their objection to the motion to strike, they state:
At the start of this action, Connecticut General Statutes Section 52-102b(a) prevented the Defendants from filing a claim for apportionment against David Fogel because he was already a party to the action. Indeed, Section 52-102b(a) clearly states that apportionment claims can only be filed "upon a person not a party to the action who is or may be liable." As David Fogel was already a named-Defendant in this action, Defendants were prohibited from filing apportionment claims against him.
Regardless of whether the statutory language "clearly" prohibits filing an apportionment claim against an existing party, the court agrees that that is the intent.
The defendants then state:
Plaintiff subsequently withdrew her claims against David Fogel; said withdrawal was in consideration of a paid settlement after the expiration of the 120-day apportionment period. As explicitly outlined in Section 52-102b(c), Defendants can seek apportionment of their negligence claims against David Fogel, a former party to the action. Specifically, Section 52-102b(c) states that no "notice shall be required if such person with whom the plaintiff settled or whom the plaintiff was released was previously a party to the action." As such, Defendants may seek to apportion liability to David Fogel and no notice is required to do so. Out of an abundance of caution, the undersigned Defendants filed a notice of their intent to seek an apportionment of liability against David Fogel. Connecticut General Statutes do not require this notice; however, it was done as a courtesy to place Plaintiff on notice of Defendants intent to apportion liability against David Fogel. Plaintiff has only filed negligence counts against the undersigned Defendants; Defendants are seeking to apportion liability for those negligence counts to David Fogel.
While most of this argument is likely legally correct, as far as it goes, it does not address the issue set forth in the motion to strike-the legal prohibition against asserting apportionment as against someone whose conduct was not negligent in nature. As set forth in Allard, the legislative amendment of the statute did more than abrogate the holding of Bhinder, but instead was far more comprehensive in prohibiting anything other than negligence-based conduct as a basis for apportionment.
There are two statements in the above-quoted paragraph that are also somewhat problematic. The first clause of the last sentence states that the plaintiff has only asserted negligence counts against these defendants-that is sufficient to invoke possible applicability of § 52-102b and § 52-572h, but indirectly identifies the problem at hand. The issue before the court does not focus on the claims against these defendants but rather focuses on the absence of any allegations of negligence directed to Mr. Fogel, especially if the original complaint is the appropriate frame of reference-the only claims of tortious conduct by Mr. Fogel relate to intentional and willful/wanton acts.
Earlier in the passage quoted above is the following language: "Defendants can seek apportionment of their negligence claims against David Fogel." What negligence claims? As noted in the paragraph immediately above, the plaintiff had only asserted forms of conduct that are not negligent in nature and therefore outside the scope of apportionment. These defendants have not articulated any claims of negligence against Mr. Fogel.
The court now will return to the relevant statutory language. Immediately preceding the sentence in § 52-102b(c) indicating that it is not necessary to serve a notice with respect to a settled party to the litigation, the following sentence is set forth in the statute: "Such notice shall also set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiff’s injuries or damages." Part of the reason the court quoted the notice filed by these defendants is to demonstrate that that notice is devoid of any "factual basis of the [defendants’] claim that the negligence of [Mr. Fogel] was a proximate cause of the plaintiff’s injuries or damages."
The defendants may be correct that they were not obligated to file a notice relating to apportionment, based on Mr. Fogel’s prior status as a party to the litigation. The legislative choice of language may well have been a result of not contemplating a situation in which a plaintiff chose to rely only on aggravated forms of misconduct, but another party sought to evade the new statutory prohibition by claiming that that settled party’s conduct actually had been "only" negligent.
The court need not determine, in absolute terms, whether in the absence of a notice of apportionment, the defendants would be entitled to seek a charge on apportionment, as they seem to be claiming, as that issue is not before the court-the court can only address issues actually raised by the motion to strike; Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). (The court notes, however, that there is nothing in the record-nothing in the original complaint, and nothing in this notice of apportionment-that would provide a basis for the court to consider charging a jury on apportionment with respect to Mr. Fogel, given the total absence of any claims of negligence on the part of the purported apportionment party.) The issue before the court is whether the notice of apportionment should be stricken.
The only allegations descriptive of the conduct of Mr. Fogel, on the current court record, relate to aggravated forms of misconduct, and § 52-572h(o) prohibits any apportionment involving aggravated forms of misconduct (i.e., anything beyond negligence). The notice is defective (legally insufficient) in that it does not "set forth the factual basis of the defendant’s claim that the negligence of such person was a proximate cause of the plaintiff’s injuries or damages," and the omission is material to the issue of apportionment in this instance, especially given the absence of negligence allegations directed to Mr. Fogel by the plaintiff. Based on the current record, which is totally devoid of any claim that Mr. Fogel acted negligently, the claim of apportionment as set forth in the notice must be construed to be based on aggravated forms of misconduct-the only type of allegations in the record-in violation of the statute which has been amended to prohibit precisely such reliance.
For all these reasons, then, the motion to strike is granted.