Opinion
No. CV 01 0166813 S
June 8, 2004
MEMORANDUM OF DECISION
This matter is before the court on a motion for summary judgment brought by defendant, Wilfred T. Demers. The defendants have filed this motion for summary judgment, dated December 12, 2003, claiming that the second count of the second revised complaint is barred by the applicable statute of limitations. The plaintiff has objected to the motion and filed a memorandum dated December 22, 2003, and the court heard oral argument on February 9, 2004.
This motion arises in the context of a civil action in which a defendant has filed an apportionment complaint. A brief recital of the procedural history of the case is necessary for the decision to be rendered.
On July 9, 2001, the plaintiff, Wilfred Demers, filed a one-count complaint sounding in negligence against the defendant, Fernande Demers. The plaintiff alleges that he was injured on July 1, 1999, when he fell from a ladder while making repairs on the defendant's porch. Pursuant to General Statutes § 52-102b, the defendant filed an apportionment complaint against Wilfred T. Demers, with a return date of December 4, 2001. It is undisputed that the plaintiff, despite the provisions of § 52-102b(d), did not assert any claims against the defendant until September 22, 2003.
General Statutes § 52-584, the statute of limitation for negligence actions, provides in relevant part: "No action to recover damages for injury to the person . . . shall be brought but within two years from the date when the injury is first sustained . . ." The plaintiff commenced this action with service of process on the defendant on June 26, 2001; thus, the plaintiff's action is timely.
General Statutes § 52-102b provides: "Addition of person as defendant for apportionment of liability purposes (a) 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 defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment 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."
The plaintiff Wilfred Demers and the apportionment defendant Wilfred T. Demers are different individuals and will be referred to as the plaintiff and the apportionment defendant, respectively.
General Statues § 52-102b(d) provides: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
On September 22, 2003, the plaintiff filed a motion to cite in the apportionment defendant "as an additional defendant" and moved "that his Complaint be amended to state facts showing the interest of [the apportionment defendant] in this action and that he be named herein as an additional defendant pursuant to the attached Second Revised Complaint." This court granted the plaintiff's motion to cite in over the objection of the apportionment defendant and further denied the apportionment defendant's motion to reargue noting: "The court finds no prejudice to the parties. Any claim of statute of limitation defense may be raised properly by the defendant by way of special defense."
Upon further consideration of these procedural matters in the course of addressing the pending motion, the court concludes that it improvidently granted the plaintiff's motion to cite in the apportionment defendant. Practice Book § 9-22 and General Statutes § 52-102, which govern motions to cite in, provide a means to admit "new" parties to an action. The apportionment defendant by virtue of his status as an apportionment defendant is a "party for all purposes." See General Statutes § 52-102b(a). It was therefore unnecessary for the plaintiff to move to cite in the apportionment defendant as an "additional defendant." Furthermore, had the motion to cite in been the vehicle that conferred party status on the individual who is the apportionment defendant, the two-year statute of limitations found in General Statutes § 52-584 would bar the claims brought by the plaintiff on September 22, 2003, for injuries sustained on July 1, 1999. Notwithstanding these procedural irregularities, the apportionment defendant is a defendant for all purposes, and the plaintiff has filed a revised complaint asserting claims against the apportionment defendant in count two of its second revised complaint. The apportionment defendant moves for summary judgment on count two on the grounds that count two is barred by the statute of limitation set forth in § 52-584 and that the plaintiff failed to avail himself of the opportunity to assert claims against the apportionment defendant within the sixty days provided in § 52-102b(d). The plaintiff argues in opposition that the time requirement in § 52-102b(d) is directory and that "§ 52-102b clearly allows the right of apportionment despite the statute of limitations."
In deciding that the court improvidently granted the plaintiff's motion to cite in the apportionment defendant as an additional defendant, this court holds that § 52-584 would bar the plaintiff's claims.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 514, 825 A.2d 72 (2003).
"The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 18 (2004), quoting Public Acts 2003, No. 03-154, § 1. The court therefore must first determine if the plain text of § 52-102b(d) indicates whether the sixty-day time limitation contained therein is mandatory or directory. Section 52-102b(d) states: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint."
The use of the auxiliary "may" in the statute indicates that a plaintiff has a choice of whether to assert claims against an apportionment defendant. A plaintiff can assert claims against an apportionment defendant or the plaintiff may choose not to do so. The court finds that the use of the word "may" denotes the choice afforded a plaintiff to assert a claim against an apportionment defendant. It does not, however, affect the time limitation within which that choice must be made. The statute explicitly provides that a plaintiff has sixty days to exercise this choice.
In Commission on Human Rights Opportunities v. Truelove Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996), the court noted that "the word `may,' unless the context in which it is employed requires otherwise, ordinarily does not connote a command Rather, the word generally imports permissive conduct and the conferral of discretion."
The plaintiff argues that the sixty-day time requirement in the statute is directory, rather than mandatory. Such a construction would permit his assertion of claims against the apportionment defendant at any time within the court's discretion, without any regard for the two-year limitation period of § 52-584. To allow such discretionary filing of claims disregards the dual purposes of § 52-102b, which were to "establish the relationship between the time line for bringing an apportionment claim and the underlying statute of limitations . . . [and] to bring uniformity to the apportionment process. Injecting discretion into § 52-102b . . . completely ignores the fact that it was enacted to ensure uniformity of result and process at the trial level." Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 27-28.
Our Supreme Court has repeatedly stated that "[i]n construing statutes, [the court] presumes that there is a purpose behind every sentence, clause or phrase used in an act and that no part of a statute is superfluous"; Rocco v. Garrison, 268 Conn. 541, 550 (2004); and that "in cases in which more than one [statutory provision] is involved, [the court presumes] that the legislature intended [those provisions] to be read together to create a harmonious body of law." (Internal quotation marks omitted.) Cardenas v. Mixus, 264 Conn. 314, 326, 822 A.2d 321 (2003).
The plaintiff's injuries occurred on July 1, 1999, and any direct action by the plaintiff against the apportionment defendant would have been barred by the two-year statute of limitation contained in § 52-584 after July 1, 2001. The plaintiff, who did not bring a direct action against the defendant, was presented with another opportunity to assert claims against the apportionment defendant within sixty days by virtue of the apportionment complaint filed by the defendant. The plaintiff has failed to do so.
The recent decision of the Supreme Court in Lostritto v. Community Action Agency of New Haven, Inc., supports as well as directs this court's conclusion that the sixty-day time limitation contained in § 52-102b(d) is mandatory. In Lostritto, the court construed as mandatory the limitation in § 52-102b(a) that requires a defendant who elects to serve an apportionment complaint to serve such complaint "within one hundred twenty days of the return date specified in the plaintiff's original complaint," absent an equitable reason for excusing compliance, including waiver or consent by the parties. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 35-36. In so finding the court noted: "[Section 52-102b delineates] the proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h." Id., 26. This court finds no logical reason to hold that the time limitation of § 52-102b(a) is mandatory, but that the time limitation of § 52-102b(d) is directory.
See footnote 2.
For the same reasons relied upon by the Lostritto court in finding the time requirement of 52-102b(a) mandatory, this court finds the time requirement of 52-102b(d) to be mandatory. To interpret the sixty-day time requirement of subsection (d) to be directory would be in direct contradiction of the purpose of § CT Page 9090 52-102b. Furthermore, the plaintiff has not argued that waiver or consent apply. Although he states that the defendant made substantial revisions to his second amended apportionment complaint, the mere fact that the apportionment complaint was amended does not raise a genuine issue of material fact regarding consent, waiver or equitable tolling.
The plaintiff has failed to meet the sixty-day time limitation contained in § 52-102b(d) for asserting claims against the apportionment defendant, and the apportionment defendant's motion for summary judgment on count two of the plaintiff's second revised complaint is therefore granted.
Matasavage, J.