Opinion
No. FBT CV 10-6006792
September 9, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE APPORTIONMENT COMPLAINT
Preliminary Statement
This action arises out of an automobile accident involving the defendant and the plaintiffs. The plaintiff Elizabeth Hilarion was a passenger in a vehicle driven by plaintiff Wilfrid Hilarion. Defendant Malcolm Yank filed an apportionment complaint against plaintiff Wilfrid Hilarion seeking apportionment of damages which may be found owing to Elizabeth Hilarion, his passenger. Wilfrid Hilarion filed a motion to strike the apportionment complaint on the grounds that it is not authorized by Conn. Gen. Stat. § 52-102b. The defendant objects and argues that the statute does not preclude such an apportionment complaint. For the reasons set forth below, the motion to strike is DENIED.
Standard of Review
The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994). The court must "examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action. (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc., supra, at 383 n. 2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).
Facts
The complaint sounds in two counts of negligence — count one on behalf of Wilfrid Hilarion and count two on behalf of Elizabeth Hilarion. Wilfrid Hilarion was the operator of a motor vehicle in which Elizabeth Hilarion was a passenger. Both plaintiffs allege negligence on the part of the defendant in the manner in which he operated his motor vehicle. Both plaintiffs allege that the defendant's negligence caused the accident and their respective injuries. The defendant filed a special defense asserting contributory negligence as to Wilfrid Hilarion's claims. By way of an apportionment complaint, the defendant seeks to offset any recovery by Elizabeth Hilarion to the extent of Wilfrid Hilarion's negligence in causing her injuries.
Discussion
At issue is whether a defendant can file an apportionment complaint against an existing plaintiff or whether such a complaint is precluded under the provisions of Conn. Gen. Stat. § 52-102b. On this issue, there is a no appellate authority and disparate conclusions among the superior courts.
General Statutes § 52-102b is titled: "Addition of person as defendant for apportionment of liability purposes." (Emphasis added.) Subsection (a) provides in relevant part: "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." (Emphasis added.) Section 52-102b(a) is the procedural vehicle by which a defendant in a negligence action may bring in a party for apportionment of liability purposes." Henriques v. Magnavice, 59 Conn.App. 333, 337 (2000).
As indicated, the appellate courts have not determined whether a defendant can bring an apportionment claim against someone who is already a party to the action, in this case the plaintiff driver. One view, oft referred to as the "majority view" expressed by our courts is that General Statutes § 52-102b precludes a claim for apportionment against someone who is already a party to the action. "Courts adopting the majority view have generally done so on the basis of the plain language and legislative history of § 52-102b as well as the fact that apportionment is already available to parties in negligence actions." Vallejos v. Santiago, judicial district of New London, Dkt. No. CV 10 6006089 (Cosgrove, J. May 23, 2011) [ 52 Conn. L. Rptr. 49], citing, Blazer v. Gil, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5003123 (June 15, 2007, Tobin, J.) ( 43 Conn. L. Rptr. 619, 620). The other view, oft referred to as the "minority view," is that apportionment complaints may be filed against existing parties. Judge Cosgrove recently discussed these conflicting views:
This court's review of the most recent case law suggests that the division among the superior court judges is approaching an even split.
The opinions that follow the minority view have articulated several grounds for doing so. Primarily, the minority view holds that § 52-102b(a) is irrelevant to persons that are already parties to a suit." Id.; see Torres v. Begic, Superior Court, judicial district of New Haven, Docket No. 423742 (June 13, 2000, Levin, J.) ( 27 Conn. L. Rptr. 403).
The minority view treats the separate claims by the multiple plaintiffs as separate causes of action. In Sharif v. Beck, Superior Court, judicial district of New Haven, Docket No. 429034 (March 27, 2001, Blue, J.) ( 29 Conn. L. Rptr. 311), Judge Blue performed a "functional analysis" in a case that is nearly identical, factually, to the present case. He determined that although the driver and the passenger of one car decided to sue the driver of the other car together, the case is functionally two separate cases, and the plaintiff driver was not a "party" to the plaintiff passenger's negligence claim against the defendants. Id., 312.
In another factually similar case, Judge Levin, in following the minority view, concluded that treating the plaintiff driver as a party to the plaintiff passenger's personal injury claim "would elevate form over substance." Orengo v. Barksdale, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 09 5026062 (January 26, 2010, Levin, J.) ( 49 Conn. L. Rptr. 357, 357), quoting Gerlt v. South Windsor, 284 Conn. 178, 192, 931 A.2d 907 (2007).
Id. As further noted by Judge Levin:
"Appellate courts of our jurisdiction have long eschewed the practice of elevating form over substance." Diamond 67, LLC v. Planning and Zoning Commission, 117 Conn.App. 72, 84, 978 A.2d 122 (2009); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). Each plaintiff has a separate and distinct cause of action under the Connecticut definition of that term. See Veits v. Hartford, 134 Conn. 428, 434, 58 A.2d 389 (1948) (defining cause of action). "A single tortious act resulting in personal injury to more than one person may give rise to as many causes of action as there are persons injured, so as to permit a separate action for damages against the wrongdoer by each injured person.
"The right of a person to recover for his or her own personal injuries received in an accident and for the death of another resulting from the same accident are based on separate causes of action." 1 Am.Jur.2d, Actions § 116 (2005). Indeed, here, each plaintiff has stated his or her causes of action in separate counts. Each could have brought a separate lawsuit by different counsel.
Orengo v. Barksdale, judicial district of Fairfield at Bridgeport, Dkt. No. CV 09 5026062(January 26, 2010, Levin, J.) ( 49 Conn. L. Rptr. 357, 357). See also, Blazer v. Gil, 43 Conn. L. Rptr. 619 (Tobin, J., Jun. 15, 2007) (Court allowed apportionment complaint against driver/plaintiff); Jackson v. Dennis, 43 Conn. L. Rptr. 436 (Gallagher, J., May 14, 2007) (same).
The facts in this case are indistinguishable from the circumstances presented in several of the cases cited above. This court is persuaded by the minority view. "Each plaintiff has essentially asserted a separate negligence claim against the defendants. While the majority view considers the filing of an apportionment complaint against an existing party to be a counterclaim, that is not what the defendants have done under the present set of facts." Villejos, supra. As was the case in Vallejos, the defendant has filed a special defense of contributory negligence against Wilfred Hilarion with respect to his claims. Separate and distinctly, the defendant seeks to offset Elizabeth Hilarion's claims with Wilfred Hilarion's contributory negligence through an apportionment complaint.
In accepting the minority view, this court holds that section 52-102b is not a bar to the defendant's efforts to seek apportionment from Wilfrid Hilarion.
"When two constructions are possible, courts will adopt the one which makes the statute effective and workable, and not one which leads to difficult and possibly bizarre results . . . In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." (Citation omitted; internal quotation marks omitted.) Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). The purpose of § 52-102b is to effectuate a sharing of the responsibility between potential tortfeasors, as set forth in the legislative directive and the public policy of General Statutes 52-572h(c).
Villejos, supra. Insofar as Elizabeth Hilarion determined not to sue Wilfrid Hilarion as a result of the injuries she allegedly sustained in the car accident, the defendant would be left with no recourse if his apportionment complaint were to be stricken. Under those circumstances, the very purpose of Conn. Gen. Stat. § 52-572h would be thwarted.
The motion to strike is DENIED.