Opinion
No. CV 03 0090651S
February 26, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (#109) AND APPORTIONMENT DEFENDANT'S MOTION TO STRIKE (#111)
These are both motions to strike an apportionment complaint filed by the defendant, Blue Ridge Insurance Company (Blue Ridge), against the apportionment defendant, Theresa Mojon (Mojon). The plaintiff and Mojon both move to strike the apportionment complaint because it does not state a cause of action and is inappropriate under the provisions of C.G.S. Section 52-572h(c). The motions to strike must be granted.
52-572h(c) provides "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section."
This action arises out of an auto accident on May 24, 2000 in which the plaintiff was a passenger in a car driven by Mojon which was struck from the rear by another vehicle driven by Gary Brugnetti (Brugnetti). In a prior action [ Tedesco v. Brugnetti, Litchfield J.D. CV02-0087505] the plaintiff sued Brugnetti for personal injuries. Brugnetti filed an apportionment complaint against Mojon, and the plaintiff pleaded over against Mojon. Prior to trial the plaintiff settled with Brugnetti for the limits of his liability insurance. The plaintiff also filed a Withdrawal of Action against Moj on.
In the present action the plaintiff has sued for underinsured motorist benefits against her own auto carrier, Northern Insurance Company (Northern; also referred to as Zurich American Insurance Company), and the carrier insuring the Mojon vehicle, Blue Ridge. Blue Ridge filed an apportionment complaint against Mojon. Northern has not filed an apportionment complaint.
The two motions to strike raise the same issue: that the apportionment complaint against Mojon is unnecessary because the defendants are entitled to a jury instruction on apportionment as to the alleged liability of Mojon. The plaintiff's brief even states: "Plaintiff, Jill Tedesco, will stipulate that Defendant, Blue Ridge Insurance Company, is entitled to a jury instruction on apportiomnent, assuming evidence of negligence on the part of Theresa Mojon, is produced."
In Collins v. Colonial Penn Ins. Co., 257 Conn. 718 (2001), the Supreme Court made clear that the principles of apportionment set forth in Section 52-572h should be applied in uninsured/underinsured motorist trials. In that case the court decided that liability must be apportioned between the two identified negligent defendants and the defendant uninsured motorist carrier which was acting as surrogate for an unidentified negligent driver. Id., 743-74. The court recognized the "hybrid nature" of uninsured motorist coverage in order to allow ". . . for the principles of Tort Reform II to be applied equitably." Id., 742. Tort Reform II limited the universe of persons who could be considered negligent by the jury to ". . . only those individuals who were parties to the legal action or who were specifically identified in Section 52-572h(n)." Id., 731. Section 52-572h(n) provides:
A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of subsection (f) of this section.
The argument of Blue Ridge is that, in spite of the express stipulation by the plaintiff that it would be entitled to an apportionment instruction as to the negligence of Mojon, it would not be entitled to such an instruction because Mojon is not a "settled or released person." This argument derives from C.G.S. Section 52-572h(b) which provides:
In causes of action based on negligence, contributory negligence shall not bar recovery in an 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 under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
Blue Ridge argues that the plaintiff did not settle with Mojon. But, the plaintiff withdrew the case against Mojon without costs at the same time as the release of Brugnetti. Simply because no money changed hands does not mean that the case against Mojon was not "settled." The statute of limitations on the claim against Mojon had expired. Therefore, the withdrawal acted to release Mojon from any potential liability. In order that the principles of Tort Reform II be applied equitably I find that the withdrawal of the first action against Mojon after the expiration of the statute of limitations is sufficient to make Mojon a settled party whose presence as an apportionment defendant is unnecessary in order for the defendant to receive a jury instruction on apportionment. For the reasons set forth above, the motions to strike are granted.
BY THE COURT
Pickard, J.