Opinion
No. TTD CV 07-5001528-S
August 21, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE
This case is a motor vehicle accident case in six counts by the plaintiffs, Dawn Green and her minor daughters, Nicole and Alexia Green. The First, Third and Fifth Counts are against the defendant, Judith Blanchard, over an accident that occurred on July 8, 2005, in Manchester, CT. The Second, Fourth and Sixth Counts are against the defendant, Amanda Carney, over a different accident that occurred on August 18, 2005, again in Manchester, CT. Blanchard has moved to strike the Complaint, and Carney has moved to dismiss the Complaint, both on the same grounds: misjoinder. For the following reasons, the Motion to Strike is granted, and the Motion to Dismiss is denied as moot.
I
The exclusive remedy for misjoinder of parties is by Motion to Strike. Practice Book § 11-3; Hilton v. New Haven, 233 Conn. 701, 723, 661 A.2d 973 (1995). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint favorably to the plaintiff." (Internal quotation marks omitted; citations omitted.) Faulkner v. United Technologies, Inc., 240 Conn. 576, 580, 693 A.2d 293 (1997).
II
General Statutes § 52-97 and Practice Book § 10-21 both provide for the joining of several causes of action in the same complaint. The joinder statute and, with minor differences of no significance, the practice book both provide as follows:
In any civil action the plaintiff may include in the complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover, either (1) upon contract, express or implied, or ( 2) for injuries, with or without force, to person and property, or either, including a conversion of property to the defendant's use, or (3) for injuries to character, or (4) upon claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same, or (5) upon claims to recover personal property specifically, with or without damages for the withholding thereof, or (6) claims arising by virtue of a contract or by operation of law in favor of or against a party in some representative or fiduciary capacity, or ( 7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action. The several causes of action so united shall all belong to one of these classes, and, except in an action for the foreclosure of a mortgage or lien, shall affect all the parties to the action, and not require different places of trial, and shall be separately stated; and, in any case in which several causes of action are joined in the same complaint, or as a matter of counterclaim or setoff in the answer, if it appears to the judicial authority that they cannot all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be expunged from the complaint or answer.
General Statutes § 52-97 (emphasis added).
The joinder statute permits any number of counts to be joined in one complaint if they fall within one of the categories. Category (2) emphasized above applies here because both counts involve personal injury. However, "[i]n addition to the requirement that all claims must fall within a single one of the categories listed, the rule of joinder of actions requires that all plaintiffs and all defendants must be common to all the claims and that all counts be triable at the same place under the rules as to venue." 1 Stephenson's Connecticut Civil Procedure (3rd Ed., 1997) § 47(c) citing Practice Book § 133 (now 10-21) (sentence emphasized above following category 7). Commonality does not exist here, as there are two different events with different defendants.
Category (7) emphasized above then becomes relevant and applicable, provided the joined claims arise out of the "same transaction or transactions connected with the same subject of action." Id. For example, joinder was permitted under this category in a case where a defendant was alleged to have injured a plaintiff twice in the same evening in two motor vehicle accidents, first in Connecticut and later, following a chase, in Massachusetts. Our Supreme Court found no misjoinder, stating, "While the complaint alleges two separate torts, one in this state and the other in Massachusetts, they are acts having some connection with each other, in which both parties are concerned . . ." Groggins v. Fawcett, 145 Conn. 709, 710-11, 147 A.2d 187 (1958). That case involved "a group of related acts which went to make up one entire course of conduct and constituted a single transaction within the meaning of the statute" and "connected with the same subject of action, that is, the operation of the defendant's vehicle." Groggins v. Fawcett, supra, 145 Conn. 711. On the other hand, where a plaintiff was allegedly involved in two separate automobile accidents occurring one hour apart but against two different groups of defendants in matters that were "in no way connected with each other, form two separate bases of recovery, and relate to and depend upon two separate breaches of duty" there is a misjoinder and a Motion to Strike should be granted. Bailey v. Thomas, Superior Court, judicial district of Hartford, Docket No. CV 98-0577916 (June 18, 1999, Wagner, J.) [ 24 Conn. L. Rptr. 687]; accord, Thompson v. Dean, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 00-181527 (June 28, 2002, Adams, J.) [ 32 Conn. L. Rptr. 410] (two different falls at different locations with different defendants). The instant case is more like the Bailey v. Thomas case. There is no connection between the two motor vehicle accidents. There is no justification for joining them in one complaint under the joinder statute and practice book rule.
Plaintiff argues that it would promote judicial efficiency and economy to join the two accidents for trial because the cases involve the same plaintiffs and the same medical expert for plaintiffs. Economical use of judicial resources is an underlying policy in many different permissive joinder statutes and practice book rules. See, e.g. Jackson v. Conland, 171 Conn. 161, 167, 368 A.2d 3 (1976); Arnold v. Thermospas, Inc., 49 Conn.Sup. 103, 106, 863 A.2d 250 (2004). However, we must follow the text. General Statutes § 1-2z.
Plaintiff also points to the case of Termini v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV 05-5000171 (November 29, 2005, Taylor, J.) [ 40 Conn. L. Rptr. 424], wherein the court permitted joinder of two separate accidents involving different defendants that occurred one month apart. In that case, however, the court was apparently persuaded that joinder was necessary because the plaintiff claimed her expert was unable to apportion her specific injuries and damages within a reasonable degree of medical certainty. The court reasoned, "In the present case, if separate actions were required, the plaintiff might very likely be left without a remedy, absent damages specifically and separately attributable to the negligence of individual defendants by an expert to a reasonable medical certainty." There is no allegation in this complaint to this effect, and, at argument, it was not yet known whether plaintiff's expert would be able to apportion the injuries or not. Accordingly, the concerns of the court in Termini v. Taylor are not present in this case at this point in time.
Moreover, the court in Termini v. Taylor relied upon a case involving three auto accidents in a row which were not joined in one complaint, but were consolidated for trial, and where the appellate court ruled, "In the rare case where damages cannot be apportioned between two or more accidents, the plaintiff who can prove causation should not be left without a remedy. One judicial response to situations in which a jury is unable to make even a rough apportionment of damages is to apportion damages equally among the various accidents." Card v. State, 57 Conn.App. 134, 144, 747 A.2d 32 (2000). The court has very broad inherent authority to consolidate cases for trial. Practice Book § 9-5; Rode v. Adley Express Co., Inc., 130 Conn. 274, 277, 33 A.2d 329 (1943). The joinder rules are more strict. "When separate actions do not qualify for joinder under the rule, but should be tried together, the court may, upon its own motion or that of a party, order that the actions be consolidated for trial." 1 Stephenson's Connecticut Civil Procedure (3rd Ed., 1997), supra, § 47(c).
III
For all of the foregoing reasons, the Motion to Strike is granted. Motion to Dismiss is denied as moot.