Opinion
FBTCV156049870
12-09-2015
GEICO a/s/o Marigza Zapata v. Franciso Gonzalez et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO STRIKE
Richard E. Arnold, J.
The defendant, Francisco Gonzalez has moved to strike the plaintiff's complaint dated April 17, 2015, on the basis that the cause of action set forth therein is barred by the applicable statute of limitations, as provided by General Statutes § 52-584. The defendant has filed a memorandum of law in support of his motion. The plaintiff has filed an objection and opposing memorandum of law, in which the plaintiff argues that the legal basis for its action is equitable subrogation and General Statutes § 52-584 does limit such an action.
General Statutes § 52-584 reads in relevant part:
The plaintiff brought this action to recover damages paid out by GEICO for bodily injury damages in the amount of $11, 000.00, which arose from an automobile accident that occurred in Norwalk, Connecticut on April 15, 2011. The damages to the plaintiff's insured were caused by the defendant's negligent operation of their motor vehicle. By contract, GEICO alleges it is subrogated to the rights of its insured for the recovery of the amounts payable under their contract with Zapata, their insured and may now seek recovery under equitable subrogation, which is not subject to the statute of limitations.
" 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party'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.2d 505 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2005).
" [O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006); Practice Book § 10-50. " [T]he objection to [raising the statute of limitations defense in a motion to strike] is that it raises no issue and deprives the plaintiff of an opportunity to reply a new promise, or an acknowledgment . . . A motion to strike might also deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense." (Citation omitted; internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). In some circumstances, however, an argument that a claim is time-barred may be heard as a motion to strike, such as, " when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer." (Internal quotation marks omitted.) Id.
The defendant argues that it is clear from the summons and complaint that the subject action was commenced more than two years after the motor vehicle accident giving rise to this action, as the accident occurred on April 15, 2011, and the defendants in this matter were not served with process until April 29, 2015. The defendant argues that a subrogation action is no different than the original negligence action, as GEICO steps into the shoes of its insured and had the same limitation to commence this action in a timely manner. " Under the doctrine of equitable subrogation, " [a] subrogee has no rights against a third person beyond what the subrogor had." Allstate Ins. Co. v. Palumbo, 296 Conn. 253, 260, 994 A.2d 174 (2010). The plaintiff argues that its payment to its insured vests in GEICO a right of equitable subrogation to recover monies paid to its insured.
Allstate Ins. Co. v. Palumbo, supra, 296 Conn. 253, does not discuss the applicability of the statute of limitations for the commencement of an action brought under equitable subrogation, as that was not an issue in that case.
The general principles of equitable subrogation are discussed in Allstate Ins. Co. v. Palumbo, supra, 296 Conn. 259-60. " The object of [equitable] subrogation is the prevention of injustice. It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, injustice, equity, and good conscience, should pay it . . . As now applied, the doctrine of . . . equitable subrogation is broad enough to include every instance in which one person, not acting as a mere volunteer or intruder, pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter." (Citations omitted.) Id., 259. " Under the doctrine of equitable subrogation, a subrogee has no rights against a third person beyond what the subrogor had." Id., 260; see also, Continental Ins. Co. v. Connecticut Natural Gas Corp., 5 Conn.App. 53, 60, 497 A.2d 54 (1985); accord 16 L. Russ & T. Segalla, Couch on Insurance (3d Ed. 2005) § 222:5, p. 222-19 (" a subrogated insurer stands in the shoes of an insured, and has no greater rights than the insured, for one cannot acquire by subrogation what another, whose rights he or she claims, did not have"). Similarly, " [t]he insurer . . . is subject to any defenses the third party would have had against the insured." 16 L. Russ & T. Segalla, supra, p. 222-21. However, " [I]n an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired . . . Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations. Dunham v. Dunham, 204 Conn. 303, 326-7, 528 A.2d 1123 (1987). " Subrogation is a highly favored doctrine . . . which courts should be inclined to extend rather than restrict"; (internal quotation marks omitted) Wasko v. Manella, 269 Conn. 527, 543, 849 A.2d 777] (2004).
" Ordering subrogation depends on the equities and attending facts and circumstances of each case." Allstate Ins. Co. v. Palumbo, supra, 296 Conn. 260. " The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." Id.; Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981); Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 18-19, 420 A.2d 1142 (1979); Gager v. Gager & Peterson, LLP, 76 Conn.App. 552, 560, 820 A.2d 1063 (2003).
In utilizing its discretion to determine whether or not in the interest of justice to extend the statute of limitations in this equitable subrogation action, the court is instructed to balance the equities of a particular case. For a motion to strike, the court reviews the complaint, to ascertain if enough pertinent facts are apparent within the four corners of the complaint to allow the court to rule on the subject motion to strike, which is directed to the statute of limitations. See. Forbes v. Ballaro, supra, 31 Conn.App. 239.
The plaintiff's complaint, while sufficiently pleading a cause of action for subrogation, does not set forth sufficient information for the court to balance the equities in determining whether to extend the statute of limitations in the interest of justice. While the complaint reveals it was signed on April 17, 2015, more than four years after the date of the subject underlying motor vehicle accident of April 15, 2011, it does not reveal enough factual information for the court to equitably determine this issue of whether or not the action is time-barred.
The plaintiff alleges it paid $11, 000.00 to its insured Zapata, as a result of the of the negligence of the defendant operator, Bertha Gonzalez, who was operating a vehicle owned by the defendant Francisco Gonzalez. The complaint does not set forth the date of this payment by the plaintiff to its insured. The court is not aware if the defendants' vehicle was uninsured at the time of the accident or if the payment by the plaintiff to its insured was a payment based on underinsured motorist benefits. The court has no knowledge of whether or not Gonzalez the plaintiff's insured, pursued a timely legal action against the defendants and/or exhausted their policy limits prior to receiving $11, 000.00 from the plaintiff, GEICO, who was her insurer. The operative dates of any or all events would provide a clearer factual picture to the court to allow the court to ascertain why the plaintiff GEICO waited four years after the underlying subject accident to institute the present subrogation claim against the defendants. Without that information, it is not possible for the court to reasonably determine what is right in the interest of justice, regarding any equitable extension of the statute of limitations.
The court finds that the complaint does not set forth all the facts pertinent to the question of whether the action is time-barred. Therefore, a motion to strike is not the proper procedural vehicle to determine the question of whether or not the court should extend the statute of limitations for this equitable subrogation action. The defendants' claim that the action is barred by the statute of limitations must be pleaded as a special defense and not a motion to strike. See. Greco v. United Technologies Corp., supra, 277 Conn. 344 n.12; Practice Book § 10-50. The motion to strike is denied.
The defendant in support of its argument directs the court's attention to Castanada v. State Farm Mutual Automobile Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV116010957S,
(Aug. 6, 2013, Swienton, J.) This case involved a motion for summary judgment and not a motion to strike. The court in
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . .
Castanada was able to review and rule on facts outside the four corners of the operative complaint.