Opinion
CV166032378S
08-31-2017
Breanna Banks v. Target Corporation dba
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S REQUEST TO AMEND COMPLAINT #142
PETER EMMETT WIESE, JUDGE.
I
DISCUSSION
" While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002).
In the present action, the plaintiff requests leave to amend her complaint to add a count against the third-party defendant, Snow Pro's LLC (" Snow Pro"). The plaintiff argues that even though her request to amend, filed on March 30, 2017, comes more than three years after her alleged February 14, 2014 slip and fall, and thus beyond the three-year statute of limitations prescribed by General Statutes § 52-584, the court is within its discretion to allow the amendment. The plaintiff argues that this is because General Statutes § 52-102a(c), which states that direct actions by plaintiffs against third-party defendants must be asserted " within twenty days after the third-party defendant appears in the action" extends the statute of limitations period required by § 52-584. The plaintiff admits that though she also failed to file her request to amend within twenty days as prescribed by § 52-102a(c), there is no controlling authority that states the twenty-day time limit should be strictly enforced.
Cariati Developers, Inc., the defendant which brought the third-party complaint against Snow Pro, withdrew its action against Snow Pro on August 15, 2017.
General Statutes § 52-584 states: " 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, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
Counsel for Snow Pro entered an appearance on January 25, 2017. The plaintiff requested to amend her complaint to add a count against Snow Pro on March 30, 2017, 64 days later.
In Vincent v. Litchfield Farms, Inc., 21 Conn.App. 524, 525, 574 A.2d 834, cert. denied, 215 Conn. 815, 576 A.2d 546 (1990), our Appellate Court ruled that the twenty-day filing requirement of § 52-102a(c) does not extend the statute of limitations under § 52-584. In Vincent, the plaintiff brought an action sounding in negligence, seeking damages for injuries she had sustained in a fall in the parking lot of a restaurant operated by the defendant. Prior to the expiration of § 52-584, the defendant filed a third-party complaint against its landlords seeking indemnification. Pursuant to § 52-102a(c), within twenty days after the landlords appeared, the plaintiff filed an amended complaint naming them as co-defendants in the original action. Id., 526-27. The plaintiff's complaint against the landlords, however, had been served after the statute of limitations pursuant to § 52-584 had run. Id.
In Vincent, the Appellate Court reaffirmed the provisions of § 52-102a(c) and Practice Book § 10-11, finding that " [t]he legislative history reveals that General Statutes § 52-102a(c) and, therefore, Practice Book § [10-11] are based upon Rule 14(a) of the Federal Rules of Civil Procedure. That history shows that there was no intent on the part of the legislature to enlarge the rights of an original plaintiff or to extend the time in which he or she might bring a direct action against a third-party defendant. Instead, the intent underlying the enactment of § 52-102a(c) was to adopt the federal impleader procedure for the purpose of judicial economy." Id., 527. Thus, the court held that the plaintiff's compliance with § 52-102a(c) did not insulate her against the defendant's claims that the amended complaint was timed barred pursuant to § 52-584. Id., 528.
The plaintiff next contends that her failure to abide by the twenty-day filing period required by in § 52-102a(c) is not fatal to her request to amend. The plaintiff cites to Tarzia v. Great Atlantic and Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999) to support this proposition. However, the court in Tarzia more accurately held that § 52-102a(c)'s twenty-day filing period should be strictly construed if not doing so would delay trial or prejudice the third-party defendant. Id., 144 (" On the facts of this case, the trial court abused its discretion in not allowing the plaintiff to amend his complaint because the length of the delay in seeking to amend did not prejudice the third-party defendant . . . and it would not have delayed the trial . . .").
In the present action, not only has the plaintiff failed to comply with the statute of limitations for tort actions provided by § 52-584, she failed to abide by the twenty-day filing requirement of § 52-102a(c) by filing the request to amend 64 days after Snow Pro filed its appearance. Further, the third-party action brought against Snow Pro has been withdrawn. Allowing the plaintiff leave now to amend would be unfair to the opposing parties, especially Snow Pro, which is no longer a party to the litigation, and would unreasonably delay trial. Consequently, the plaintiff's request for leave to file an amended complaint is denied.
II
CONCLUSION
For the reasons stated, the request to amend is denied.
SO ORDERED.