Opinion
HHDCV176079111S
10-15-2018
Betzaida AYALA v. PARAMOUNT PLAZA AT NEW BRITE, LLC et al.
UNPUBLISHED OPINION
OPINION
Matthew D. Gordon, J.
The apportionment, first party, and cross claim defendant, Premier Landscaping (Premier), has moved to strike the cross claim for apportionment filed against it by the defendant and cross claim plaintiff, G.F. Enterprise, LLC (G.F.). Premiere asserts that Conn. Gen. Stat. § 52-102b precludes a cross claim for apportionment against an existing party, and that apportionment cannot be asserted by an entity such as G.F. that has a nondelegable duty to maintain real property. This court joins the majority of other courts holding that the clear language of Conn. Gen. Stat. § 52-102b precludes the filing of an apportionment complaint against an existing party to the litigation. The court also concludes that G.F’s cross claim for apportionment is legally insufficient and must be stricken because G.F. remains vicariously liable for the acts and omissions of Premier.
Facts and Procedural History
This is a personal injury action in which the plaintiff claims to have been injured on or about February 5, 2016 when she fell on snow and ice in a parking lot that was in the possession and control of G.F. On or about July 17, 2017, G.F. filed an apportionment complaint against Premier alleging that Premier was contractually obligated to provide snow and ice removal services at the location where the plaintiff fell, and that if the plaintiff was injured in the manner she alleges, then Premier is liable for part or all of her damages. On or about January 8, 2018, the plaintiff filed an amended complaint asserting a direct claim of negligence against Premier, and on or about January 23, 2018, G.F. filed an answer to the plaintiff’s complaint and a two-count cross claim against Premier alleging apportionment of liability and common-law indemnification. Although Premier does not challenge G.F.’s cross claim for indemnification, Premier has moved to strike G.F.’s cross claim for apportionment on the grounds that Conn. Gen. Stat. § 52-102b precludes a cross claim for apportionment against an existing party. G.F. also claims that G.F.’s cross claim for apportionment must be stricken because G.F. had a non-delegable duty to maintain the property and therefore remains vicariously liable for the acts and omissions of Premier.
Standard
"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." (Citations 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." (Citations omitted; internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass’n v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "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 ..." (Citations omitted.) Coe v. Bd. of Educ. of Town of Watertown, 301 Conn. 112, 117, 19 A.3d 640, 643 (2011).
Analysis
Although our appellate courts have not addressed the specific issue of whether a defendant in a negligence action may file a cross claim for apportionment against an existing party, numerous trial courts have concluded that Conn. Gen. Stat. § 52-102b, entitled "Addition of person as defendant for apportionment of liability purposes," precludes such an apportionment claim based on the clear language of the statute, which provides, in pertinent part: "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." (Emphasis added.) See Paula Phelan et al. v. Constance Socha, No. CV 176024822S, 2018 WL 4839662 (Conn.Super.Ct. Sept. 11, 2018). In Phelan, the court granted the plaintiff’s motion to strike an apportionment complaint filed against him by the defendant on the grounds that the clear language of Conn. Gen. Stat. § 52-102b(a) precludes a party to a negligence action from filing a claim for apportionment against an existing party. According to the court, "[the defendant’s] attempt to file her apportionment complaint under § 52-102b fails because the language of this statute is clear and unambiguous that its provisions only apply to adding a person who is not already a party to the action." Id. In reaching its decision that an apportionment complaint is not permissible between existing parties to a negligence action, the court also noted that the comparative negligence and apportionment of liability of and between the parties is addressed under Conn. Gen. Stat. § 52-572h. According to the court, "[t]here can be no bona fide dispute that § 52-572h changes the common law by establishing the rights of comparative negligence and apportionment. Although § § 52-572h(b) and (c) do not set forth the procedures under which comparative negligence and apportionment may be asserted, these provisions unequivocally state that these statutorily created rights are available to the parties to an action." Id. The court is convinced that the reasoning of Phelan is correct and that the clear language of Conn. Gen. Stat. § 52-102b(a) bars G.F.’s cross claim for apportionment. The court therefore concludes that G.F.’s cross claim for apportionment is legally insufficient as a matter of law and must be stricken.
Premiere also argues that G.F.’s cross claim for apportionment must be stricken because G.F. had a non-delegable duty to remove snow and ice from the premises and that it therefore remains vicariously liable for the acts or omissions of Premier.
In Smith v. Town of Greenwich, 278 Conn. 428, 460, 899 A.2d 563, 583 (2006), the Supreme Court of Connecticut held that the owner or occupier of real property may not file an apportionment complaint against a contractor hired to maintain the premises on its behalf. According to the court, "the owner or occupier of a premises owes a nondelegable duty to keep the premises safe by protecting third persons from foreseeable slip and fall injuries. Should the owner or occupier of the premises hire a contractor to maintain the property, the owner or occupier is vicariously liable for the consequences arising from that contractor’s tortious conduct. Section 52-572h(c) does not apply to cases of vicarious liability, like the present one, where defendants are not potentially liable to the plaintiff in differing proportions. We conclude, therefore, that in such circumstances, a defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant’s nondelegable duties." Id.
The court concludes that the holding of Smith v. Town of Greenwich is applicable to the facts of this case and that G.F.’s cross claim for apportionment is legally insufficient as a matter of law and must be stricken.
Conclusion
After carefully considering the plaintiff’s complaint, Premier’s motion to strike, G.F.’s objection to the motion, and the various arguments advanced by the parties in their legal briefs and at oral argument, the court concludes that G.F.’s cross claim for apportionment is barred by the clear language of General Statutes § 52-102b, and by the Supreme Court of Connecticut’s holding in Smith v. Town of Greenwich. Premier’s motion to strike G.F.’s cross claim for apportionment is therefore granted.