Opinion
No. CV03 0285298-S
February 26, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE APPORTIONMENT COMPLAINT #106
I PROCEDURAL HISTORY
The plaintiffs, Barry DiMaggio and Caitlyn DiMaggio (a minor), filed a two-count complaint dated August 1, 2003, against the defendant William Tuck. The plaintiffs allege in these two counts that on October 18, 2002, the defendant negligently operated a motor vehicle causing the front end of his vehicle to collide with the rear end of the plaintiff's motor vehicle. In turn, the front end of the plaintiff's vehicle collided with the rear end of the vehicle operated by Nichols. The plaintiffs suffered injuries and other damages. Barry DiMaggio was the operator of the vehicle and Caitlyn, the passenger. On October 6, 2003, the defendant filed an answer and special defenses, which claim that the injuries caused to the plaintiffs were the result of Barry DiMaggio's failure to give a warning or provide an appropriate signal to the defendant prior to stopping suddenly.
The defendant filed an apportionment complaint dated December 10, 2003, against Barry DiMaggio in which he claims that "any injuries, losses, or damages allegedly sustained [by] Caitlyn DiMaggio were caused in part by the negligence and carelessness of the defendant of this apportionment complaint, Barry DiMaggio." Barry DiMaggio filed a motion to strike and memorandum of law on January 15, 2004. He argues that, based on a clear majority of Superior Courts that have interpreted. General Statutes § 52-102b, a defendant is not entitled to bring an apportionment complaint against a plaintiff already in the action. The defendant has filed a memorandum of law in response. The defendant argues that this court should follow the rationale of those decisions by the Superior Courts which allow an apportionment complaint brought by the original defendant against an existing plaintiff on the basis that if Barry DiMaggio were to withdraw his complaint, which he may do so any time beyond the 120-day time frame set forth in § 52-102b, "the defendant would be prejudiced as he would not be able to seek an apportionment of liability as to [Barry] DiMaggio under § 52-102b and would not be entitled to an apportionment of damages under § 52-572h."
Section 52-102b provides in relevant part: "(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."
II DISCUSSION
"There is a split of authority in Connecticut at the Superior Court level as to whether a defendant may bring an apportionment claim against a plaintiff. The majority of cases considering this issue . . . have refused to allow a defendant to bring an apportionment claim against a plaintiff. Evans v. Spinelli, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0279651 (February 10, 2003, Wiese, J.) ( 34 Conn. L. Rptr. 52, 53). Many judges hold that since the language of the statute specifically refers to a person not a party, it does not permit such claims. Id. See also Lackard v. Vandecar, Superior Court, judicial district of Hartford, Docket No. CV 01 0806605 (January 7, 2002, Rittenband, J.); Wright v. Ludwig, Superior Court, judicial district of Danbury, Docket No. CV 99 0335959 (November 2, 2001, Moraghan, J.T.R.); Delmonica v. Paint World, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276085 (August 16, 2001, Booth, J.); Pryce v. Keane Thummel Trucking, Superior Court, judicial district of Hartford, Docket No. CV 00 0800961 (July 20, 2001, Berger, J.); Rubbak v. Thompson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0180009 (April 6, 2001, Lewis, J.) ( 29 Conn. L. Rptr. 316, 316)." (Internal quotation marks omitted.) Bowen v. Currier Trucking, Inc., Superior Court, judicial district of New Haven, Docket No. CV 02-0470230 (October 21, 2003, Zoarski, J.T.R.) ( 35 Conn. L. Rptr. 679).
"For instance, in Delmonica v. Paint World, Inc., [ supra], Superior Court . . . Docket No. CV 01 0276085 . . . an automobile collision case, the defendants raised a special defense alleging negligence on the part of the plaintiff driver as the cause of the plaintiff passenger's alleged injuries and also filed an apportionment complaint against the plaintiff driver. The court found that the apportionment complaint and the special defense filed by the defendants serve the same purpose: to apportion liability pursuant to General Statutes § 52-572h(c), and granted the plaintiff driver's motion to strike the apportionment complaint. The court reasoned that the bringing of an apportionment complaint under these facts is directly contrary to the explicit language of § 52-102b(a). The purpose of that section is to bring into court a party not already before the court in some capacity." (Citations omitted; internal quotation marks omitted.) Evans v. Spinelli, supra, 34 Conn. L. Rptr. 52.
"On the other hand, a minority of judges have held that apportionment complaints may be filed against existing parties. See, e.g., Sharif v. Peck, Superior Court, judicial district of New Haven, Docket No. 429034 (March 27, 2001, Blue, J.) ( 29 Conn. L. Rptr. 311, 312) (allowing apportionment complaint against plaintiff); Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 423742 (June 14, 2000, Levin, J.) ( 27 Conn. L. Rptr. 403, 404) (holding that General Statutes § 52-102b does not apply to the assertion of apportionment claims against existing parties); Farmer v. Christianson, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 00 71954 (May 4, 2000, Sullivan, J.) ( 27 Conn. L. Rptr. 197) (allowing apportionment complaint against plaintiff-operator)." (Internal quotation marks omitted.) Bowen v. Currier Trucking Inc., supra, 35 Conn. L. Rptr. 679.
"This court adopts the majority view. It is clear from the plain language of § 52-102b(a) that the statute applies only to persons not already parties. (Emphasis [in original.]) Pryce v. Keane Thummel Trucking, supra, Superior Court, Docket No. CV 000800961. Where the words of a statute are clear and unambiguous courts are not free to infer a meaning other than that expressed in its plain language . . . Courts cannot, by construction, read into statutes provisions which are not clearly stated. Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn. App. 352, 355, 561 A.2d 981 (1989)." (Citation omitted; internal quotation marks omitted.) Evans v. Spinelli, supra, 34 Conn. L. Rptr. 52.
"This conclusion is further buttressed by a review of the legislative history of General Statutes § 52-102b. Seeking a clarification on whether the term party as used in the statute refers to someone who is a party to the lawsuit . . . Representative Lawlor, one of the proponents of the bill replied: Yes. In fact, it would mean anyone who is actually a party to the lawsuit. Marconi Construction Co. v. D'Addeo's, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0551848 (January 28, 1998, Wagner, J.T.R.)." (Internal quotation marks omitted,) Ayalon v. Breakstone, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 078878 (December 5, 2003, Cremins, J.).
In the present case, the defendant has raised a special defense and is bringing an apportionment complaint against Barry DiMaggio alleging that his negligence was the cause of Caitlyn's injuries and seeking an apportionment of liability. As a result, the assertion of the special defense and filing of the apportionment complaint serve the very same purpose. Because Barry DiMaggio is a party to the action and because any apportionment of liability necessarily will be accomplished pursuant to § 52-572h(c), the apportionment complaint is improper. "Since General Statutes [§] 52-572h(c) provides that all parties against whom recovery is permitted are liable only for their proportionate share of damages, and because [the plaintiff driver] is a party, his percentage of negligence will be considered by the jury . . . Moreover, a defendant need only plead a special defense of contributory negligence to ensure that the issue of a plaintiff's contributory negligence is before the jury." Lackard v. Vandecar, Superior Court, judicial district of Hartford, Docket No. CV 01 0806605 (January 7, 2002, Rittenband, J.T.R.)." (Internal quotation marks omitted.) Evans v. Spinelli, supra, 34 Conn. L. Rptr. 52.
III CONCLUSION
For the above reasons, the court grants the plaintiffs' motion to strike the defendant's apportionment complaint.
So ordered.
BY THE COURT
Peter Emmett Wiese, Judge.