Opinion
No. CV 09-5013453-S
October 1, 2009
MEMORANDUM OF DECISION RE COUNTERCLAIM DEFENDANT'S MOTION TO STRIKE, #104
On June 24, 2009, the plaintiff, State Farm Mutual Automobile Insurance Company, (State Farm), as the subrogee of Daniel Rivera, filed this action against the defendant, Angel Flores, seeking payment of property damage to the plaintiff insured's vehicle following a motor vehicle accident which took place on April 24, 2008. On July 23 2009, the named defendant filed an answer, special defense, and counterclaim, alleging that the accident was caused by the plaintiff's insured, and that the plaintiff is therefore responsible for compensating the defendant for personal injury damages. On September 1, 2009, the plaintiff filed a motion to strike the counterclaim, accompanied by a memorandum in support. On September 3, 2009, Flores filed an objection.
DISCUSSION
"A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985); see also Practice Book § 10-39(a). "[I]n determining the sufficiency of a [counterclaim] challenged by a [plaintiff's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.26 505 (2001). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the [counterclaim] alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 21, 25, 618 A.2d 25 (1992). "[I]f facts provable in the [counterclaim] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. 260.
State Farm moves to strike the counterclaim on the ground that there is no cause of action upon which relief can be granted. The named defendant seeks compensation for alleged personal injuries as a result of the alleged negligence of State Farm insured's vehicle, while the actual insured operator is not a party to this action. The named defendant counters that the counterclaim properly states a claim upon which relief can be granted because it arises directly out of the underlying automobile accident, and under Practice Book § 10-10, "any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim arises out of the transaction . . . which is the subject of the plaintiff's complaint." Although the defendant is correct that the complaint and the counterclaim each address the same incident, Practice Book § 10-10 goes on to state: "A defendant may also file a counterclaim . . . against any other party to the action for the purpose of establishing that party's liability to the defendant for all or part of the plaintiff's claim against that defendant." (Emphasis added.)
"The jurisdiction of the trial court is limited [however] to those parties expressly named in the action coming before it . . . [Thus] [a] court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. pp. 224, 234, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
The named defendant's counterclaim is based on acts and omissions of the plaintiff's subrogee, Daniel Rivera, not acts and omissions of the plaintiff. "[A]s a qualification to the concept that the subrogated insurer stands in the identical position as the insured subrogor, it may be held that the subrogee is not subject to counterclaims which the wrongdoer could have asserted had he been sued by the insured." 16 G. Couch, Insurance (2d Ed. 1983) § 61:236, p. 296. In both Seaco Ins. Co. v. Devine Bros., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0374721 (June 13, 2001), and Liberty Mutual Ins. Co. v Luna, 40 Conn.Sup. 89, 481 A.2d 427 (1984), the proposition that a defendant is entitled to assert a counterclaim against a subrogee for the tortious conduct of its insured was rejected. In the former case, in which the insured was not a party to the action, the court explained that while a subrogee succeeds to the rights of the insured and is subject to all defenses which would have been available against the insured, "a counterclaim is not one of these rights or defenses, and, cannot be asserted against a nonparty to the action." Seaco Ins. Co. v. Devine Bros., Inc., supra.
In Liberty Mutual Ins. Co. v. Luna, supra, 40 Conn.Sup. 89-90, a motor vehicle collision case, the defendant filed a counterclaim against the plaintiff, alleging that the plaintiff's insured was responsible for the collision. The court granted the plaintiff's motion to strike the counterclaim, concluding that "[w]hile the negligence of [the insured] may constitute a defense to the plaintiff's action, that is not to say that it provides the basis for [a counterclaim] against the plaintiff." Id., 90.
In Allstate Ins. Co. v Appell, 39 Conn.Sup. 85, 88, 469 A.2d 949 (1983), cited by the defendant, the court also rejected the proposition that a defendant is entitled to assert a counterclaim against a subrogee for the tortious conduct of its insured, albeit by implication. However, the court did order that the subrogee's insured be cited in to respond to the defendant's proposed counterclaim, adding, "[t]he allowance of the counterclaim will result in judicial economy and the avoidance of a multiplicity of litigation in that the actions will involve substantially the same issues and facts." This policy would appear to be consistent with the procedure enunciated in Practice Book § 10-10; ". . . [I]f necessary, additional parties may be summoned in to answer any such counterclaim or cross claim."
There is no question that State Farm as subrogee of its insured, Rivera, stands in his shoes and is subject to any and all defenses which would have been available against Rivera had he brought the suit in his own name; however, a counterclaim to an action is not a defense to an action. "A counterclaim is [however] not a defense . . . but is an independent cause of action and must be complete by itself" 80 C.J.S. 16 Set-Off and Counterclaim § 9 (2000). "Thus, while a subrogee may stand in the place of the insured and is subject to any and all defenses which would have been available against the insured had the insured brought suit in its own name, a counterclaim is not one of these rights or defenses and, therefore, cannot be asserted against a nonparty to the action." Seaco Ins. Co. v. Devine Brothers, Inc., supra.
CONCLUSION
Accordingly, the plaintiff's motion to strike the defendant's counterclaim is granted.