Opinion
No. CV05 4002646-S
June 6, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS # 115
FACTS
On April 1, 2005, the plaintiffs, Keith and Michele W. Stocking, filed a two-count complaint against the defendant, Richard E. Wiese. Keith Stocking brings count one and Michele W. Stocking brings count two. Both counts sound in negligence and allege the following. The plaintiffs were driving their vehicle in Meriden when the defendant suddenly and without warning turned his vehicle directly in front of the plaintiffs' vehicle. The plaintiffs allege that the defendant was negligently operating his vehicle and that, as a result, the plaintiffs suffered various physical, emotional and economic damages, some of which are likely to be permanent and recurring.
On July 22, 2005, the defendant filed an amended answer, special defenses and apportionment complaint. The apportionment complaint was filed pursuant to General Statutes § 52-572h and cites the original plaintiff, Keith Stocking, as the apportionment defendant.
On February 21, 2006, the apportionment defendant filed a motion to dismiss and, in the alternative, a motion to strike, the apportionment complaint, accompanied by a memorandum of law in support. On April 17, 2006, the apportionment plaintiff filed a memorandum in opposition.
DISCUSSION I. MOTION TO DISMISS
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003).
The apportionment defendant argues that the apportionment plaintiff's failure to serve the apportionment complaint by writ and summons bearing a return date, as required by General Statutes § 52-102b, deprives the court of subject matter jurisdiction. The apportionment plaintiff counters that failure to comply with § 52-102b implicates personal jurisdiction and, therefore, the motion must fail because it is based on the wrong ground.
General Statutes § 52-102b states in relevant part: "(a) 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 . . . The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court . . ." General Statutes § 52-102b(a).
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), the court held that "§ 52-102b is a service provision [and, therefore,] it implicates personal jurisdiction rather than subject matter jurisdiction." Id., 33. The court came to this conclusion in the context of determining that the time period for serving an apportionment complaint under § 52-102b(a) is mandatory rather than directory. Id., 23. Nonetheless, the court's broad statement that § 52-102b implicates personal jurisdiction is clear. See Carpenter v. Law Offices of Dressler Associates, 85 Conn.App. 655, 661-62, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004) (citing to Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 32, for the rule that § 52-102b implicates personal jurisdiction).
Although the apportionment plaintiff is correct in stating that the apportionment defendant's motion is based on the wrong ground, the court is not required to deny the motion for this reason. In Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 10, one of the apportionment defendants based its motions to dismiss on lack of subject matter jurisdiction while the other apportionment defendant based its motion on lack of personal jurisdiction. Id., 34. After concluding that § 52-102b implicates personal jurisdiction, the court affirmed the granting of both motions on the ground of lack of personal jurisdiction. Id. The court reasoned that despite the differences in nomenclature, both parties filed their motions within thirty days of service of the apportionment complaint, as required by Practice Book §§ 10-30 and 10-32, and both relied on late service as the underlying basis of dismissal. Id. Like the apportionment defendants in Lostritto, the apportionment defendant in the present case is essentially arguing that the apportionment plaintiff did not serve him as § 52-102b(a) requires.
Practice Book § 10-30 states in relevant part: "Any defendant, wishing to contest the court's jurisdiction, may do so . . . by filling a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30.
Practice Book § 10-32 states in relevant part: "Any claim of lack of jurisdiction over the person . . . or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed . . . within the time provided by Section 10-30." Practice Book § 10-32.
The court, however, is precluded from following Lostritto in this respect because the apportionment defendant has waived any objection to personal jurisdiction. Under §§ 10-30 and 10-32, "a party waives any objection to a court's personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance." Carpenter v. Law Offices of Dressler Associates, supra, 85 Conn.App. 661; see Practice Book §§ 10-30 and 10-32. In Lostritto, the court noted that each apportionment defendant timely filed their motions to dismiss. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 34. In Carpenter v. Law Offices of Dressler Associates, supra, 85 Conn.App. 655, the apportionment defendants failed to file their motion within the thirty-day period and, therefore, the court dismissed the motion. Id., 662. In the present case, the apportionment defendant filed his appearance to the apportionment complaint on January 17, 2006 and his motion to dismiss on February 21, 2006, thirty-five days after filing his appearance. This is five days more than § 10-30 allows. The motion to dismiss, therefore, is denied.
II. MOTION TO STRIKE
In support of his motion to strike, the apportionment defendant argues that § 52-102b applies only to those who are not a party to the action and, therefore, as the original plaintiff, he cannot be the apportionment defendant. The apportionment plaintiff counters that neither § 52-102b nor § 52-572h by their express terms prevent or preclude apportionment of liability on one who is already a party to the litigation.
General Statutes § 52-102b states in relevant part: "(a) 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. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint. The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint. 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."
General Statutes § 52-572h states in relevant part: "(b) In causes of action based on negligence, contributory negligence shall not bar recovery in any action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons . . ." General Statutes § 52-572h(b).
This court, Taylor, J., in Roklen v. Presnell, Superior Court, judicial district of Meriden, CV 04 0287569 (March 15, 2006, Taylor J.) ( 40 Conn. L. Rptr. 883), granted a motion to strike the apportionment complaint under the same essential facts in the present case. In Roklen, one defendant asserted an apportionment cross claim against the other defendant. Id. The apportionment defendant filed a motion to strike arguing that the court should adopt the majority view of the Superior Court, which holds that § 52-102b does not permit the filing of an apportionment complaint against a person who is already party to the action. Id. After considering the reasoning underlying the majority and minority views, as well as the legislative history of § 52-102b, the court sided with the majority view. Id. The court granted the motion to strike the apportionment complaint because it was filed against a person already party to the action. Id. Following this court's decision in Roklen, the court in the present case grants the apportionment defendant's motion to strike the apportionment complaint because it was filed against the original plaintiff.
In Roklen, the apportionment plaintiff served the apportionment complaint with the answer rather than by writ and summons as specified under § 52-102b. The apportionment defendant did not object to the apportionment complaint in this respect, so the court did not address this issue.
CONCLUSION
For the foregoing reasons, the court denies the apportionment defendant's motion to dismiss and grants the apportionment defendant's motion to strike.