Opinion
FSTCV156025581S
06-08-2016
Su Mi Oh v. Jessica Sefcik et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
Donna Nelson Heller, J.
The plaintiff Su Mi Oh commenced this action, returnable June 23, 2015, against the defendants Jessica Sefeik and Paula Sefeik (collectively, the Sefciks) and the defendant and apportionment plaintiff Margaret Reed (Ms. Reed) to recover for personal injuries that she allegedly suffered as a result of an automobile accident that occurred on August 9, 2013 on Interstate 95 in Westport, Connecticut, when a vehicle (the Reed vehicle) that was owned and operated by Ms. Reed allegedly struck the rear of a vehicle (the Sefcik vehicle) that was operated by Jessica Sefcik and owned by Paula Sefcik, causing the Sefeik vehicle to strike the rear of the plaintiff's vehicle.
On August 28, 2015, Ms. Reed filed a complaint for apportionment of liability against GEICO General Insurance Company (GEICO), the plaintiff's uninsured motorist policy carrier, in which she alleged that an unidentified motorist struck the rear of the Reed vehicle, causing it to collide with the Sefcik vehicle, which in turn was pushed into the plaintiff's vehicle, as alleged in the complaint. Ms. Reed alleges, as the apportionment plaintiff, that because the apportionment defendant GEICO provided uninsured motorist benefits to the plaintiff, it is liable to the plaintiff for the negligence of the unidentified motorist.
On November 19, 2015, GEICO filed a motion to strike the apportionment complaint together with a supporting memorandum of law (#112.00). Ms. Reed filed an objection to the motion to strike and a memorandum of law on January 28, 2016 (#114.00). The motion to strike appeared as a non-arguable motion on the February 22, 2016 short calendar. For the reasons set forth below, the motion to strike is granted.
I
" 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." (Citation omitted; 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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " A motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action." (Citation omitted; internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 47-48, 91 A.3d 412 (2014). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Citation omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
II
The defendant and apportionment plaintiff Ms. Reed seeks to apportion liability to the apportionment defendant GEICO pursuant to General Statutes § 52-572h and § 52-102b. General Statutes § 52-572h provides in relevant part that " [e]xcept 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 [General Statutes] section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to [General Statutes] section 52-556." General Statutes § 52-572h. Under General Statutes § 52-102b, " [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 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 § 52-102b(a).
GEICO has moved to strike the apportionment complaint on the ground that the apportionment complaint is insufficient as a matter of law because a defendant in a tort action arising from a motion vehicle collision may not seek apportionment against an uninsured motorist carrier when neither the insurance carrier nor the uninsured motorist have been named as defendants by the plaintiff in the underlying action. GEICO points out that the plaintiff's complaint sounds in negligence against the Sefciks and Ms. Reed only; there are no allegations of negligence against the unidentified driver who allegedly struck the Reed vehicle, causing the chain reaction of collisions that followed. Where the plaintiff did not bring suit against the unidentified driver or her uninsured motorist carrier GEICO directly, GEICO contends that Ms. Reed cannot maintain a claim against it for apportionment of liability on the basis that GEICO is the surrogate for the unidentified driver.
In Collins v. Colonial Penn Insurance Co., 257 Conn. 718, 778 A.2d 899 (2001), our Supreme Court held that when a plaintiff brings an action against multiple tortfeasors and includes his own uninsured motorist carrier as a surrogate for an unidentified negligent driver, the other defendants may seek apportionment against the plaintiff's carrier. The court concluded that " there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the underinsured carrier is named in the complaint to act as the unidentified driver's surrogate." Id. at 743-44. Where a plaintiff has not named his own carrier as a defendant, however, the trial courts are divided as to whether Collins is controlling. There is no appellate authority directly on point.
" [T]he majority of cases have granted a motion to strike where a defendant in a motor vehicle collision action seeks apportionment from the plaintiff's uninsured motorist carrier for an unidentified driver's negligence, when the plaintiff has not sued the insurer or the unidentified driver." Kirchhoff v. Mesallum, Superior Court, judicial district of New London, Docket No. CV-12-6014192 (February 19, 2013, Devine, J.) (56 Conn.L.Rptr. 9, ). See, e.g., Bergman v. Ares, Superior Court, judicial district of Hartford, Docket No. HHD-CV-14-6052485-S (May 11, 2015, Wiese, J.); Santos v. Jinete, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV-10-6007151-S (May 18, 2011, Jennings, J.T.R.) (52 Conn.L.Rptr. 11, ); True v. Stratton, Superior Court, judicial district of New Britain, Docket No. CV-10-6005127-S (January 26, 2011, Young, J.) (51 Conn.L.Rptr. 368, ); Mathews v. Blauvelt, Superior Court, judicial district of New London, Docket No. CV-10-6002940 (June 25, 2010, Martin, J.) (50 Conn.L.Rptr. 181, ); DiPaolo v. Rocco, Superior Court, judicial district of New Haven, Docket No. CV-09-5028530-S (April 6, 2010, Wilson, J.) (49 Conn.L.Rptr. 591, ; Massaro v. Craig, Superior Court, judicial district of New Haven, Docket No. CV-06-5007556-S (July 27, 2009, Wilson, J.) (48 Conn.L.Rptr. 314, ); Santana v. Tom, Superior Court, judicial district of Meriden, Docket No. CV-07-5002545-S (November 17, 2008, Rubinow, J.) (46 Conn.L.Rptr. 665, ). " All of these cases reason as such because apportionment complaints cannot be brought against unidentified persons and the uninsured motorist provider stands in the shoes of the phantom driver. Additionally, these cases hold that this type of apportionment complaint is legally improper because a defendant may not seek apportionment from a plaintiff's uninsured motorist provider because there is no privity of contract between the defendant and the plaintiff's insurance company." (Citation omitted; internal quotation marks omitted.) Levine v. Ward, Superior Court, judicial district of New Haven, Docket No. NNH-CV-12-6036640-S (April 21, 2014, Nazzaro, J. ). " Most of these cases . . . also distinguish Collins, by noting that [t]he critical distinction . . . is that [unlike Collin ] the named plaintiff did not serve a complaint upon his uninsured motorist carrier, or seek to recover damages from an unidentified driver directly or through a surrogate by naming that unidentified driver as a defendant in his original or amended complaint." Citation omitted; internal quotation marks omitted.) Kirchhoff v. Mesallum, supra, Superior Court, Docket No. CV-12-6014192, .
In a minority of cases, trial courts have denied motions to strike apportionment complaints against a plaintiff's uninsured motorist carrier even though the plaintiff did not name the carrier as a defendant in the underlying case. See, e.g., Daddana v. Soto, Superior Court, judicial district of Fairfield, Docket No. CV-14-6046499-S (April 10, 2015, Radcliffe, J.) [60 Conn.L.Rptr. 186, ] (finding that " [n]o credible basis exists for permitting apportionment where a 'surrogate' is named by the plaintiff in a complaint, while precluding apportionment against that same 'surrogate' in a claim for apportionment raised by a party defendant"); Shaffer v. Mindell, Superior Court, judicial district of Hartford, Docket No. CV-12-6028079-S (November 7, 2012, Scholl, J.) (54 Conn.L.Rptr. 908, ); Wheeler v. Wojtowicz, Superior Court, judicial district of New Britain, Docket No. CV-08-5009900-S (September 16, 2009, Zemetis, J.) (48 Conn.L.Rptr. 578, ); Luciani v. Berlingo, Superior Court, judicial district of New Haven, Docket No. CV-08-6001879-S (May 19, 2008, Licari, J.) (31 Conn.L.Rptr. 581, ); Leitkowski v. Safeco Insurance Co., Superior Court, judicial district of New London, Docket No. 566685 (July 29, 2004, Hurley, J.) (37 Coun. L. Rptr. 575, ) . " These cases . . . generally indicate that there is no requirement in Collins that such carrier be an original defendant. The apportionment plaintiffs assert their rights, not those of the original plaintiff. Such requirement would defeat the clearly expressed policy of tort reform that each person be responsible for only his/her proportionate share of damages . . ." (Citations omitted; internal quotation marks omitted.) Bergman v. Ares, supra, Superior Court, Docket No. HHD-CV-14-6052485-S, . As the court observed in Shaffer v. Mindell, supra, Superior Court, Docket No. CV-12-6028079-S, " by allowing a defendant to cite in a plaintiff's uninsured motorist carrier as a surrogate for an unidentified driver, a defendant is not exposing the carrier to any real liability unless the plaintiff determines to plead over against the carrier . . . § 52-102b, which permits a defendant to file a claim against a nonparty defendant for the apportionment of any liability resulting from the plaintiff's direct claim, does not implicate monetary damages, but rather merely the apportionment of liability . . . In other words, apportionment claims are claims for the apportionment of liability and are, therefore, separate and distinct from claims for monetary damages." (Citation omitted; internal quotation marks omitted.) Id.
This court finds the reasoning of the majority of Superior Court decisions on the issue to be persuasive and supported by the language of our Supreme Court's opinion in Collins . The plaintiff in this case has not alleged that the accident was caused in any respect by an unidentified driver. She did not name her uninsured motorist carrier GEICO or the unidentified driver as defendants in her complaint. Without having been named or joined as a defendant, GEICO cannot stand in the shoes of the unidentified driver and act as a surrogate in litigating the unidentified driver's portion of liability in the underlying action. Following the majority position, this court holds that the apportionment plaintiff Ms. Reed may not seek apportionment against the uninsured motorist carrier GEICO because GEICO is not named as a defendant in the underlying action.
III
For the reasons set forth above, the motion to strike (#112.00) is granted, and the objection thereto (#114.00) is overruled.