Opinion
No. CV 07 5002679-S
May 7, 2008
MEMORANDUM OF DECISION PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' APPORTIONMENT COUNTERCLAIM
Pursuant to Practice Book § 10-39, the plaintiffs, Beata Iwanczuk and Alex Krysteli through his mother Beata Iwanczuk, move to strike the defendants' counterclaim for apportionment of liability filed on March 19, 2008. The plaintiffs claim that (1) the defendants cannot bring a counterclaim for apportionment against the plaintiff, Beata Iwanczuk, because she is already a party to this action, and (2) "the defendants' counterclaim does not seek affirmative relief as required by Practice Book § 116 (sic)."
I. FACTUAL BACKGROUND
The plaintiffs filed this action on October 24, 2007 against the defendants for injuries and losses sustained as a result of a motor vehicle accident that occurred on October 12, 2005 in Meriden, Connecticut. The plaintiffs filed an eight-count revised complaint on December 7, 2007. The defendants filed an answer, special defenses and counterclaim to the plaintiffs' complaint. The first special defense raises contributory negligence of the plaintiff driver, Iwanczuk, and the defendants' counterclaim further seeks apportionment of liability as to Iwanczuk. The plaintiffs now move to strike the defendants' apportionment counterclaim.
In the first and third counts, Iwanczuk alleges negligence by the defendants Zhen (the operator of the vehicle) and by East West Company (the vehicle owner), respectively. In the second and fourth counts, Iwanczuk alleges recklessness by the defendants Zhen and by East West Company, respectively. In the fifth and seventh counts Krysteli alleges negligence by Zhen and by East West Company, respectively. In the sixth and eighth counts, Krysteli alleges recklessness by Zhen and by East West Company, respectively. The defendants previously moved to strike the second, fourth, sixth and eighth counts on the ground that each count failed to sufficiently allege facts to support a claim for recklessness. The plaintiffs voluntarily withdrew the fourth and eighth counts. The defendants' motion to strike the second and sixth counts was denied by the court. (February 19, 2008, Gilligan, J.).
II. DISCUSSION A. Standard Applicable to Motions to Strike
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). The role of the trial court in ruling on a motion to strike is "to examine the [pleading], construed in favor of the [pleading party], 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, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
B. The Apportionment Statute
General Statues § 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 . . . 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 . . . (f) This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff's damages as a party to the action." (Emphasis added.) "General Statutes § 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, 757 A.2d 627 (2000).
A split of authority exists at the trial court level on the issue raised by this motion. DiMaggio v. Tuck, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285298 (February 26, 2004, Wiese, J.) (36 Conn. L. Rptr. 579). "The majority of Superior Court decisions hold that General Statutes § 52-102b precludes a cross claim for apportionment against someone who is already a party to the action." Ayalon v. Breakstone, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0078878 (December 5, 2003, Cremins, J.), citing Lackard v. Vandecar, Superior Court, judicial district of Hartford, Docket No. CV 01 0806605 (January 7, 2002, Rittenband, J.T.R.); 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); Apicelli v. Indian Nations, Superior Court, judicial district of New London at Norwich, Docket No. 0119305 (December 11, 2000, Martin, J.).
"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 0429034 (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. 0423742 (June 14, 2000, Levin, J.) (27 Conn. L. Rptr. 403, 404)." (Citations omitted; internal quotation marks omitted.) DiMaggio v. Tuck, supra, 36 Conn. L. Rptr. 580.
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. "[Section 52-102b (a)] applies only to bringing new parties into a lawsuit for purposes of apportioning liability. It does not apply to the assertion of apportionment claims against existing parties . . . Hence, General Statutes § 52-102b is inapplicable [where the] defendant does not seek to add an additional party." Torres v. Begic, supra, 27 Conn. L. Rptr. 404. At least one opinion following the minority view has further observed, "the legislative history is strikingly silent on whether or how an apportionment claim may be asserted by a defendant against another party . . . The silence of § 52-102b and its legislative history is significant when viewed with reference to its `common law' antecedent. Prior to the enactment of the statute in 1995, judges routinely entertained apportionment complaints by defendants against other parties . . . If the legislature had intended to preclude apportionment claims by defendants against existing parties, it could have done so and would have done so in clear language. It did not." (Citations omitted.) Id., 405. Additionally, the minority view points out that "there is nothing preventing a defendant who seeks apportionment from asserting grounds of negligence different than those asserted by the plaintiff. If an apportionment complaint is not permitted or required against a present party, that party may have no notice of the claim for apportionment let alone the specifications of negligence until the end of the presentation of evidence. Nor may that party have any pretrial notice, in the way of discovery, of the evidence (including expert evidence) to be presented against him." Id., 406. Finally, unlike the majority view, the minority view ostensibly enables apportionment even in the case where a potentially liable co-plaintiff withdraws from a suit.
Although a counter claim may be factually and procedurally distinguishable from a cross claim, the distinction appears to be meaningless in the context of General Statutes § 52-102b, which refers to " a person not a party to the action who is or may be liable . . ." (Emphasis added.)
The reasoning of the majority view is that the purpose of apportionment under General Statutes § 52-102b(a) "is to allow a defendant to bring a non-party into the case for apportionment purposes. The logic underlying this restriction is evident in the language of [§ ]52-102b(c), which provides that notice of apportionment is unnecessary where the person against whom apportionment is sought was previously a party to the action. The apportionment claim under § 52-102b is clearly designed to provide the court with notice that the defendant may not be wholly liable." (Emphasis added.) Pouliot v. Paul Arpin Van Lines, Inc., 303 F.Sup.2d 135, 138 (D. Conn. 2004) (holding apportionment cross claim precluded by § 52-102b).
The majority view has previously been adopted by the court in Roklen v. Presnell, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0287569 (March 15, 2006, Taylor, J.) (40 Conn. L. Rptr. 883). Generally, the decisions of the courts adopting this view of the apportionment pleading process do so on the basis of the plain language and legislative history of § 52-102b, as well as the fact that apportionment is already available with respect to parties in actions based upon negligence under General Statutes § 52-572h. Id. The problem with this rationale, according to the defendants, is that their apportionment complaint must be filed within 120 days; otherwise they will be foreclosed from pursuing apportionment against the plaintiff, Iwanczuk, should she choose to withdraw her action after the 120-day limitation on apportionment complaints. This scenario, the defendants contend, would thwart the policy of Tort Reform because it results in the elimination of individuals who may be held liable for apportionment purposes and would represent a return, although incremental, to joint and several liability.
The defendants therefore challenge the assumption that, by granting the plaintiffs' motion to strike, "[t]he defendant . . . is not left without a remedy. 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 proposed apportionment defendant] is a party, his percentage of negligence will be considered by the jury." Demosthene v. Spignolio, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0186972 (July 24, 2002, Lewis, J).
C. Recent Supreme Court Decisions
Recent Supreme Court decisions concerning apportionment and the application of General Statutes § 52-102b must be taken into consideration by the court. For instance, in Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007), the Supreme Court specifically allowed courts to consider equitable extensions of the mandatory 120-day limit for apportionment complaints under General Statutes § 52-102b. Reflecting upon Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), the court reiterated that "§ 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty . . . Allowing for exceptions to the 120 day limit for equitable reasons is consistent with that goal. The concept of `reasonable' certainty embodies the concept that the ideal of predictability cannot be so rigidly adhered to that the apportionment system must tolerate inequities that are easily avoided by allowing exceptions where equity demands them." (Citation omitted; emphasis in original; internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 121, 914 A.2d 524 (2007).
Thus, in Pedro, the court found an equitable basis for tolling the statutory mandate of 120 days where the plaintiff alleged an injury at the hands of her physician during treatment for other injuries arising from an accident involving the defendants, which treatment had occurred more than sixteen months after the original return date. The court found that the legal basis for an apportionment complaint against the physician did not arise until "long after the 120 day limit already had passed. Consequently, it was impossible for the defendants to serve the apportionment claim upon [the physician] within the 120-day limit established by § 52-102b(a)." Pedro v. Miller, supra, 281 Conn. 119.
The holding of Pedro does not specifically address the question of a party's option to bring an apportionment complaint against someone who was once a party to the litigation, but who has settled or has been withdrawn from the action. As Pedro may not satisfactorily ensure that an equitable basis for tolling the 120 day rule will be found in all cases, an apportionment plaintiff may therefore be motivated to file apportionment complaints against all other parties as a standard practice, to ensure the opportunity of apportioning their liability in the event a party is released after 120 days have passed. This approach, however, would result in a costly and largely unnecessary preemptive practice. Following the logic of Pedro, the filing of a withdrawal of a complaint may be an equitable reason to toll the 120-day rule where liability has been disputed.
The Supreme Court in the case of Viera v. Cohen, 283 Conn. 412, 435, 927 A.2d 843 (2007) partially addresses the specific issue of whether an apportionment complaint may be brought against a former party. In Viera, the estate of an injured child brought an action against an obstetrician to recover damages for injuries sustained during childbirth. The Supreme Court affirmed a ruling of the trial court that precluded the defendant from pursuing an apportionment complaint against another party, against whom the plaintiff had withdrawn its case shortly before the trial had commenced.
There are two important and relevant issues addressed by the court in Viera. First, Justice Katz clearly states in the majority opinion that, with respect to General Statutes § 52-102b, "under the procedural scheme prescribed by the legislature, the defendant could not file an apportionment complaint against [another defendant] while he was a party." (Emphasis added.) Viera v. Cohen, supra, 283 Conn. 443. This view is similarly reflected in Justice Palmer's dissenting opinion in Viera, where he also clearly states that "McNamee could not have filed an apportionment complaint against Cohen while Cohen was still a defendant because § 52-102b applies only to nonparties." (Emphasis added.) Viera v. Cohen, supra, 283 Conn. 467. Although these statements are not within the specific holding of the case, they are critical elements of the majority and minority opinions.
The specific holding in Viera, relevant to the present case, is that an apportionment complaint may not be brought against a party who has been released without consideration. The court found that, under General Statutes § 52-572h(n), a party to whom apportionment applies is limited to instances involving "[a] release, settlement or similar agreement," which the court interpreted to mean a release involving consideration. Id. By implication, the court in Viera would allow apportionment complaints to be brought against parties who had settled for consideration and had withdrawn. This conclusion is further supported by the language of General Statutes § 52-102b(c). In addition to excluding immune persons from apportionment, § 52-102b(c) requires defendants to provide notice of claims against persons who have settled with the plaintiff who were not made parties to the action, but dispenses with this notice requirement if a "person with whom the plaintiff settled or whom the plaintiff released was previously a party to the action." Presumably the notice of injuries proximately caused by released parties, otherwise required to be alleged, is met by the originally submitted pleadings in the case.
General Statutes § 52-572h(n) provides: "A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person's percentage of negligence determined in accordance with subsection (f) of this section."
General Statutes § 52-102b(c) provides: "No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h. If a defendant claims that the negligence of any person, who was not made a party to the action, was a proximate cause of the plaintiff's injuries or damage and the plaintiff has previously settled or released the plaintiff's claims against such person, then a defendant may cause such person's liability to be apportioned by filing a notice specifically identifying such person by name and last known address and the fact that the plaintiff's claims against such person have been settled or released. Such notice shall also set forth the factual basis of the defendant's claim that the negligence of such person was a proximate cause of the plaintiff's injuries or damages. No such notice shall be required if such person with whom the plaintiff settled or "whom the plaintiff released was previously a party to the action."
Although the holding in Viera empowers plaintiffs to be the sole arbiters of who should be considered liable among the original parties in a lawsuit, apportionment appears to remain available against parties who have settled their claims for value. Read together with CT Page 7629 Pedro, such an apportionment complaint may properly be brought more than 120 days after the return date of the complaint has passed, so long as an equitable reason has been established.
For these reasons, the motion to strike the defendants' counterclaim is granted, but without prejudice. In the event of a withdrawal by Iwanczuk, the court may consider appropriate equitable reasons for allowing an apportionment complaint against her at that time, to determine whether the circumstances are similar to the exception found to the 120-day rule by the court in Pedro. However, the defendants' apportionment counterclaim against Iwanczuk is legally insufficient at this time. Viera v. Cohen, supra, 283 Conn. 443.
The court notes that General Statutes § 52-572h's and Tort Reform's purpose of apportioning liability may nonetheless be met by calling a settled or released party as a witness for purposes apportioning liability under General Statutes § 52-572h(f), which provides: "The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant." (Emphasis added.) See Viera v. Cohen, supra, 283 Conn. 435 (discussing the intent of Tort Reform II, as expressed in Public Acts 1987, No. 87-227).
D. Failure to Claim Affirmative Relief
The plaintiffs' second ground in support of their motion to strike is that the counterclaim does not "seek affirmative relief as required by Practice Book § 116 (sic)." They argue that the apportionment counterclaim is legally insufficient on the ground that it could not stand alone as its own suit because the defendants could not obtain relief. The defendants reply that neither the rules of practice nor the General Statutes use the term "affirmative relief," and that apportionment is a sufficient demand for relief.
"Numerous Superior Court decisions have held apportionment counterclaims legally insufficient because of their failure to seek affirmative relief . . . These decisions . . . are predicated on Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 160, 459 A.2d 525 (1983), where the Supreme Court stated that [u]nder [Practice Book § 10-10] a counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." (Citation omitted; internal quotation marks omitted.) Torres v. Begic, supra, 27 Conn. L. Rptr. 406.
In Blazer v. Gil, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5003123 (June 15, 2007, Tobin, J.) (43 Conn. L. Rptr. 619, 621-22), the court adopted the reasoning of Torres v. Begic in finding that "[n]either the Practice Book, in any relevant provision, nor the Connecticut General Statutes, employ the term `affirmative relief.' Indeed, the clear implication of the final sentence of Practice Book § 10-20 is that money damages are only one form of relief that a complaint may seek . . . In any event, asking a court to shift liability for a personal injury to another party is a sufficient request for `affirmative relief.' Obviously, it is the obligation to pay money damages that the defendant seeks to deflect. Adding the words `money damages' to the defendant's claim for relief is unnecessary and would be inaccurate." (Internal quotation marks omitted.) Id.
The court adopts the reasoning of Torres v. Begic and Blazer v. Gil, as applied to the present case. The motion to strike the defendants' counterclaim is therefore denied on this basis.
III. CONCLUSION
The plaintiffs' motion to strike the defendants' counter claim is granted, but without prejudice in the event there is a withdrawal.