Opinion
NNHCV156054222S
01-12-2016
Christopher Kusmit et al. v. Douglas Mahoney, Esq
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO STRIKE #114
Brian T. Fischer, Judge.
FACTS
This wrongful death action arose out of a motor vehicle accident that occurred on August 29, 2012, resulting in the death of Connor Kusmit (the decedent), who was the son of the plaintiffs, Christopher and Kelly Kusmit. The plaintiffs, who were appointed as co-administrators of the decedent's estate, solicited the defendant, Douglas Mahoney, Esq., to commence a wrongful death suit against the alleged tortfeasor, Christina Groumousas. The plaintiff's became dissatisfied with the defendant's services, and on May 7, 2014, obtained a different attorney, John Mills (Mills) of Mills Law Firm, LLC, to represent them in the decedent's wrongful death action.
On April 27, 2015, the plaintiffs, through Mills, filed a negligence and a legal malpractice action against the defendant, and filed a revised complaint on October 6, 2015. In their complaint, the plaintiff alleged the following facts. The decedent was operating his bicycle when he was struck by a car being operated by Groumousas, causing him to suffer serious injuries, which ultimately resulted in his death. During the course of representation, the defendant was negligent and committed legal malpractice when, among other things, he: (1) failed to file a complaint against Groumousas or conduct an investigation prior to instructing the plaintiffs to release Groumousas from liability in exchange for a $50,000 payment from her auto insurance carrier; (2) failed to resolve the wrongful death action in a timely manner; (3) failed to obtain economic relief for the plaintiffs in a timely manner; and (4) failed to answer the plaintiffs' inquires in a timely manner.
The defendant then filed an apportionment complaint against the apportionment defendants, Mills and Mills Law Firm, LLC, on August 6, 2015. In his complaint, the defendant alleges the following facts. On May 7, 2014, the apportionment defendants began representing the plaintiffs in lieu of the defendant. On that same date, the apportionment defendants directed the defendant to " take the final steps needed to wrap up the $50,000 settlement" with Groumousas and further advised the defendant that the plaintiffs " would appreciate it very much." Additionally, while representing the plaintiffs in the underinsured motorist action against the plaintiffs insurance carrier, Liberty Mutual, the apportionment defendants obtained a $200,000 settlement check, which they failed to distribute to the plaintiffs in an orderly and timely way and failed to pay the defendant an equitable percentage of the contingency fee for resolution of the underinsured motorist claim. The defendant further alleges that if the plaintiffs suffered damages as alleged in their October 6, 2015 complaint, such damages were proximately caused by the negligence of the apportionment defendants in that they deprived the plaintiffs of an orderly and timely resolution of their claims resulting from the death of the decedent. Thus, the apportionment defendants are liable to the plaintiffs for their proportionate share of negligence in settling the underlying action.
In the present case, the defendant refers to the plaintiffs' negligence and legal malpractice complaint as " Exhibit A" throughout the apportionment complaint, and served a copy on the apportionment defendants in accordance with Practice Book § 10-29(a). Thus, the court, in its discretion, can consider the plaintiffs' complaint in the apportionment defendants' motion to strike because it was properly incorporated into the apportionment complaint. The defendant incorporated a copy of the plaintiffs' negligence and legal malpractice complaint into the apportionment complaint and it is referred to as " Exhibit A" throughout. " [A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion . . . Nonetheless, [a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party . . . A complaint includes all exhibits attached thereto." (Citations omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
The apportionment defendants continue to represent the plaintiffs in this matter.
On August 17, 2015, the apportionment defendants filed the present motion to strike the apportionment complaint, along with a supporting memorandum of law, on the grounds that the apportionment complaint is legally insufficient because: (1) Connecticut law provides that successor counsel in a legal malpractice action may not be joined for the purposes of apportionment; (2) there can be no apportionment claim under General Statutes § 52-572h because this is not a personal injury action; and (3) apportionment of liability is not permitted in an action based upon a breach of a fiduciary obligation. The defendant filed an objection on September 16, 2015, along with a supporting memorandum of law, to which the apportionment defendants filed a reply on September 29, 2015. This matter was heard at the short calendar on October 5, 2015.
" [General Statutes] § 52-102b is the exclusive means by which a defendant may add a person who is or may be liable pursuant to § 52-572h for a proportionate share of the plaintiffs' damages as a party to the action." Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 792-93, 756 A.2d 237 (2000). Section 52-102b provides in relevant part: " (a) A defendant in any civil action to which [§ ]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." Section 52-572h provides in relevant part: " (c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property . . . if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . ."
DISCUSSION
" [A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). " 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). " A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC, 312 Conn. 662, 670, 94 A.3d 622 (2014). " The role of the trial court in ruling on a motion to strike is to 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.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).
In the apportionment defendants' memorandum of law in support of their motion to strike, and in their reply brief, they argue that Connecticut law unambiguously provides that successor counsel in a legal malpractice action may not be joined for the purposes of apportionment because it violates public policy. In the alternative, the apportionment defendants argue that regardless, there can be no claim for apportionment liability pursuant to § 52-572h because this is not a personal injury action, but rather an action seeking economic loss suffered by the decedent's estate, which is outside the purview of § 52-572h. The apportionment defendants further assert that apportionment of liability is not permitted in an action based upon a breach of a fiduciary obligation and because the plaintiffs are claiming that the defendant failed to properly represent the estate as the estate's attorney, it involves a breach of fiduciary obligations. Therefore, they argue that the action is not within the scope of § 52-572h. Thus, the apportionment defendants argue that based on the foregoing reasons, the apportionment complaint must be stricken in its entirety.
In the defendant's objection to the apportionment defendants' motion to strike, the defendant counters that first, sister states have held that successor counsel may be impleaded for contribution on a claim of legal malpractice and there is no public policy in Connecticut that prevents naming successor counsel as an apportionment defendant. Second, the defendant contends that the plaintiffs' negligence and legal malpractice complaint expressly pleads personal injury, specifically where the plaintiffs allege that they suffered " frustration, anger, and emotional distress" as a result of the defendant's negligence, which are non-economic damages. Lastly, the defendant argues that the plaintiffs have pleaded legal malpractice sounding in negligence, not a claim for a breach of a fiduciary duty, and therefore, the claim is within the scope of § 52-572h. Thus, based on the foregoing reasons, the defendant asserts that the apportionment defendants' motion to strike the apportionment complaint should be denied.
The defendant argues that courts in Maryland, Illinois, New York, Washington, and Wisconsin recognize actions for contribution against successor counsel. See Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 756 A.2d 526, 538 (Md. 2000).
I.
PUBLIC POLICY
The apportionment defendants argue that the apportionment complaint is legally insufficient because Connecticut law provides that successor counsel in a legal malpractice action may not be joined for the purposes of apportionment because it violates public policy. The apportionment defendants cite to two Connecticut Superior Court cases, both with facts similar to the present case, to support this contention. In Gauthier v. Kearns, Superior Court, judicial district of Hartford, Docket No. CV-99-0592136-S (May 16, 2001, Rittenband, J.T.R.) (27 Conn. L. Rptr. 201, 204-05, 47 Conn.Supp. 166, 780 A.2d 1016), the court stated, " [t]here is no specific public policy set forth in Connecticut, under statutory or common law, as to whether successor counsel in a legal malpractice action can be sued for apportionment. The public policy of California, however, is that successor counsel coming into a case to correct the malpractice of prior counsel may not be made a party to a malpractice action by the defendant against the successor counsel . . . The highest court in Minnesota concurs with California . . . The court, therefore, finds that it violates public policy in Connecticut to permit successor counsel . . . entering a case to correct the alleged malpractice of prior counsel to be made a party to a malpractice action by the defendants in a malpractice action against them." (Citation omitted; internal quotation marks omitted.) Similarly, the court in Whitaker v. Erdos & Maddox, Superior Court, judicial district of Fairfield, Docket No. CV-00-0371896-S, (November 14, 2000, Skolnick, J.), in applying the Gautheir analysis, found that " the apportionment defendant's motion to strike the apportionment complaint on the ground that a claim for apportionment of liability, pursuant to General Statutes § § 52-102b and 52-572h, by a predecessor attorney against a successor attorney in a legal malpractice action, is barred as against public policy is granted."
While the court has carefully considered these two cases, the Connecticut Supreme and Appellate Courts have not yet ruled on the issue of whether public policy prohibits a former attorney from maintaining an apportionment claim against successor counsel in a legal malpractice action. Trial court cases do not establish binding precedent, but instead, can serve as persuasive authority for other trial courts. See McDonald v. Rowe, 43 Conn.App. 39, 43, 682 A.2d 542 (1996); see also State v. Dehaney, Superior Court, judicial district of Hartford, Docket No. CR-95-481648-S, (December 24, 1998, Barry, J.) (stating that cases cited by defendant are not binding because decisions were rendered by trial courts). Absent controlling authority in this state, this court declines to adopt a minority position that has been based upon California and Minnesota public policy. As a result, because the two Connecticut Superior Court cases cited by the apportionment defendants rely on public policy in California and Minnesota, and trial court decisions are not binding upon this court, the apportionment defendants' motion to strike shall be denied on this ground.
II.
FIDUCIARY OBLIGATION
The apportionment defendants also argue that apportionment of liability is not permitted in an action based upon a breach of a fiduciary obligation. General Statutes § 52-572h(k) provides that: " This section shall not apply to breaches of trust or of other fiduciary obligations." See also Whitaker v. Erdos & Maddox, supra, Superior Court, Docket No. CV-00-0371896-S (finding that § 52-572h(k) prohibits apportionment of damages in legal malpractice claim based on breach of fiduciary duty). " [T]o prove any legal malpractice claim, a plaintiff must establish the four necessary elements: (1) an attorney-client relationship; (2) a wrongful act or omission by the attorney; (3) proximate cause; and (4) legal damages." (Internal quotation marks omitted.) Lukas v. McCoy, 157 Conn.App. 384, 391, 116 A.3d 827 (2015). " Professional negligence alone, however, does not give rise automatically to a claim for breach of fiduciary duty. Although an attorney-client relationship imposes a fiduciary duty on the attorney . . . not every instance of professional negligence results in a breach of that fiduciary duty. A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty." (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56-57, 717 A.2d 724 (1998). A breach of fiduciary duty claim requires allegations " of fraud, self-dealing, conflict of interest or the like." Sherwood v. Danbury Hospital, 278 Conn. 163, 197, 896 A.2d 777 (2013).
In the present case, the apportionment defendants argue that apportionment of liability is not permitted in an action based upon a breach of a fiduciary obligation and because the relationship between an attorney and his client is highly fiduciary in nature, § 52-572h(k) does not apply. The apportionment defendants are correct in their contentions, however, they must still plead sufficient facts to support a breach of fiduciary duty claim, separate and apart from the negligence and the legal malpractice claim, which the apportionment defendants, on behalf of the plaintiffs, have failed to do. The complaint against the defendant, as currently drafted, does not adequately support a breach of fiduciary duty claim because the apportionment defendants have not alleged any facts which would support a claim of fraud, self-dealing, conflict of interest, or the like. Absent such claims on the part of the defendant, the allegations that may support a claim of ordinary negligence and legal malpractice do not suffice to also encompass a claimed breach of fiduciary duty. As a result, the apportionment defendants' motion to strike shall be denied on this ground as well, because the apportionment defendants have not plead sufficient facts which would support a claim for breach of fiduciary duty.
III.
PERSONAL INJURY VERSUS LEGAL MALPRACTICE ACTION
In the alternative to the above mentioned arguments, the apportionment defendants argue that there can be no claim for apportionment liability pursuant to § 52-572h because this is not a personal injury action, but rather a legal malpractice action seeking economic loss suffered by the decedent's estate, which is outside the purview of § 52-572h. In Whitaker v. Erdos & Maddox, supra, Superior Court, Docket No. CV-00-0371896-S, the plaintiff filed a legal malpractice complaint against the defendants, a law firm and two of its attorney-employees, alleging that she hired the defendants to represent her in a medical malpractice action, but they failed to provide adequate representation. The defendants filed an apportionment complaint against the apportionment defendant, the plaintiff's new counsel who was representing her in the legal malpractice action against the defendant. Id. The apportionment defendant filed a motion to strike and argued that since a legal malpractice claim seeking economic loss is not a claim resulting from personal injury or property, § 52-572h(c) was inapplicable to the present case. Id. The defendants countered that first, apportionment is permitted in legal malpractice actions and second, the plaintiffs action is within § 52-572h because her medical malpractice action was a claim for personal injuries. Id.
The court rejected the defendants' first argument and found that, " [t]he cases cited by the defendants in support of their contention that apportionment is permitted in legal malpractice actions are inapplicable to the present case . . . These cases either pertain to attorneys who are defendants in legal malpractice actions and who subsequently file apportionment complaints against their former clients; or with apportionment complaints filed in cases not involving legal malpractice . . . [I]n the present case, an attorney is asserting a claim for apportionment against the plaintiff's current attorney, not against the client." (Emphasis in original.) Id. The court also rejected the defendants' second argument and found that, " [the defendants] fail to cite to any authority in support of their contention that the 'injury' referred to in § 52-572h(c) can be the injury alleged in a separate, related action and not the injury in the action in which apportionment is sought. The defendants misunderstand the injury referred to in § 52-572h. The statute plainly states that it applies to negligence actions in which a party seeks damages for wrongful death, personal injury or damage to property. In the present case, the defendants seek apportionment of damages in the plaintiff's legal malpractice action, not her medical malpractice action. Thus, the relevant injury is not the child-birth related injuries the plaintiff suffered as a result of [the] medical malpractice, but the injury the plaintiff allegedly suffered as a result of the defendant's legal malpractice. In the complaint, the plaintiff alleges that the defendant's negligence caused her to suffer economic loss. Clearly, this is not a claim for personal injury or wrongful death." Id.
Similarly here, the defendant filed the apportionment complaint seeking apportionment of damages in the plaintiffs' legal malpractice action, not in their wrongful death action. In applying the court's analysis in Whitaker, the relevant injury is not the injury the decedent suffered as a result of Groumousas' negligence, in which the plaintiffs, as co-administrators of the decedent's estate, sought damages for his wrongful death. Rather, the relevant injury is the injury the plaintiffs assert that the estate allegedly suffered as a result of the defendant's legal malpractice. This legal malpractice claim, in which the plaintiffs allege that the estate suffered economic loss, is not a claim for personal injury or wrongful death.
Additionally, because the plaintiffs seek monetary damages in their negligence and legal malpractice complaint, their action also does not fall within the purview of the phrase " damage to property" as used in § 52-572h. See Whitaker v. Erdos & Maddox, supra, Superior Court, Docket No. CV-00-0371896-S (stating that Supreme Court has held that monetary damage, or economic loss, does not fall within the purview of the phrase " damage to property" as used in § 52-572h). Therefore, because § 52-572h plainly states that it applies to negligence actions in which a party seeks damages for wrongful death, personal injury, or damage to property, and this is not a personal injury, wrongful death, or damage to property action, there can be no claim for apportionment liability. Based on the foregoing, the apportionment defendants' motion to strike shall be granted.
CONCLUSION
Based on the above considerations, the apportionment defendants' motion to strike the apportionment complaint in its entirety is granted.