Opinion
No. FST CV 07 5003284 S
August 30, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS APPORTIONMENT COMPLAINT (116.00)
Federal Insurance Company (Federal) commenced this civil action as subrogee to recover monies paid out, or to be paid out, to its insured Roger Willbanks (Willbanks) pursuant to a property insurance policy for damage to a 1936 Delahaye Figoni automobile (Delahaye) owned by Willbanks. Federal's complaint alleges that the negligence of the defendants Mariano Brothers, Inc. (Mariano Brothers) and Red Line Restorations, LLC (Red Line) caused the damage to the Delahaye obligating Federal to pay out over $350,000 to date.
According to the Federal complaint, an order of prejudgment remedy in the amount of $5.6 million had been issued by the Connecticut Superior Court against Red Line and one of its members. On January 7, 2005 Connecticut State Marshal James Sullivan (Sullivan) acting pursuant to the Superior Court order of prejudgment remedy took possession of certain property at Red Line's garage in Stamford, Connecticut, including the Delahaye which was there for purposes of repairs or other work. Mariano Brothers was engaged to lift, move or transport the property seized by Sullivan and during this process the Delahaye was damaged. The complaint alleges Mariano Brothers was negligent in handling or moving the Delahaye. More pertinent to the matter presently before the court, the complaint also alleges that the negligence of Red Line caused the damage in that it failed to protect the Delahaye which was not subject to the seizure because it was not the property of Red Line. Specifically, it is alleged that Red Line failed to warn Willbanks and give him an opportunity to remove his vehicle, failed to identify the Delahaye as the property of someone other than Red Line, and failed to properly supervise the attachment of the Delahaye.
Red Line has served an apportionment complaint against Sullivan. In that apportionment complaint Red Line alleges that upon entering the Red Line premises on January 7, 2005 Sullivan knew the Delahaye was not subject to attachment and knew it was not property of Red Line, but property of a customer. It is further alleged that Sullivan, "acting completely outside his capacity as a state marshall [sic] . . . [and] in his individual capacity . . . seized the 1936 Delahaye Figoni and removed it from the premises." Apportionment Complaint ¶ 7 (115.00). Red Line alleges that if it is found responsible to Federal it is entitled to an apportionment of damages against Sullivan for his share of negligence in failing to properly secure and store the Delahaye.
Sullivan has moved to dismiss Red Line's apportionment complaint. Sullivan contends that he is immune from suit pursuant to General Statutes § 6-38a which states that state marshals have authority to provide legal execution and service of process and states further in Section 6-38a(b) that state marshals "in the performance of execution or service of process functions have the right of entry on private property and no such person shall be personally liable for damage or injury, not wanton, reckless or malicious, caused by the discharge of such functions."
In its brief memorandum opposing Sullivan's motion to dismiss, Red Line points to its allegation that Sullivan was "acting completely outside his capacity as a state marshal [sic] . . . in his individual capacity." Therefore, Red Line argues that while Sullivan may deny this allegation, there are no grounds to dismiss the apportionment complaint.
II. Standard of Review
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 454, (2003).
When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in manner most favorable to the pleader
Cos v. Aiken, 278 Conn. 204, 211 (2006) (Internal quotation marks omitted.)
III. Discussion
The apportionment complaint filed by Red Line is done so pursuant to General Statutes § 52-102b allowing such complaints against persons not a party to an action who may be liable for a proportionate share of the plaintiff's damages pursuant to General Statutes § 52-572h. However, there is no apportionment of liability or damages between parties who are liable for negligence and parties liable on any basis other than negligence including intentional, wanton or reckless conduct. General Statutes § 52-572h(o). Allard v. Liability Oil Equipment, 253 Conn. 787 (2000) (discussing P.A. 99-69 which added subsection (o) to Section 52-572h).
While a court must construe an apportionment complaint in a light most favorable to the apportionment plaintiff, it may not ignore blatant inconsistencies. In contrast to the above-quoted allegations in Paragraph 7, the apportionment complaint also alleged that Sullivan appeared at Red Line's premises "in his capacity as a state marshall." Apportionment Complaint, ¶ 5. Therefore, the pleading must be construed that some time between appearing at the Red Line premises and seizing the Delahaye, Sullivan lost his capacity as a state marshal. Since there is no allegation of retirement, resignation or discharge from that position the pleading can only be construed that Sullivan's actions were so far beyond the pale as to constitute a relinquishment of his status as a state marshal. Nevertheless, Red Line characterizes these actions as merely "carelessness and negligence."
The apportionment complaint stretches too far in different directions in an effort to avoid a dilemma. In light of Section 6-38a(b) Sullivan is immune from suit for negligence in his capacity as a state marshal entering and executing court orders. However, apportionment complaints are only available for apportioning liability based on negligence. In order to satisfy the apportionment statutes Red Line has alleged Sullivan was negligent and to avoid Sullivan's immunity from negligence suit Red Line has alleged that Sullivan somehow lost his status as a marshal while performing actions that only marshals are authorized to perform. The court determines this effort must fail because any action Sullivan might have undertaken sufficient to strip him of his status as a marshal would ipso facto have to be beyond mere negligence and into the realm of wanton, reckless or intentional conduct.
IV. Conclusion
The motion to dismiss is granted.