Opinion
No. LLI CV 08 5005116S
July 29, 2009
MEMORANDUM OF DECISION
FACTS AND PROCEDURAL HISTORY
The plaintiff, Germaine Leblanc (Leblanc), initiated this action in November 2008, alleging that she fell on an unlighted walkway of a parking lot maintained by the defendant, Elderly Housing Management (Elderly Housing). The return date of the complaint was December 9, 2008. On April 14, 2009, Elderly Housing filed an apportionment complaint against a third party, Coppola Construction Company (Coppola). In the apportionment complaint, Elderly Housing alleges that it contracted with Coppola to install lighting in the parking lot and walkway where the plaintiff fell, and the installation was done negligently.
On April 28, 2009, Coppola moved to dismiss the apportionment complaint. On May 6, 2009, Leblanc moved to strike the apportionment complaint. Elderly Housing objects to the motion to dismiss and the motion to strike.
DISCUSSION Motion to Dismiss
"A motion to dismiss . . . properly attacks the jurisdiction of the court essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. as ground for dismissal, Coppola argues that the apportionment complaint was untimely filed more than 120 days after the return date of the complaint, in violation of General Statutes § 52-102b.
Section 52-102b provides, in relevant part: "Any . . . apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint."
"[N]oncompliance with § 52-102b implicates a court's personal jurisdiction, not subject matter jurisdiction." Lostritto v. Community Action Agency of New Haven, 269 Conn. 10, 14, 848 A.2d 418 (2004). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
In response to the motion to dismiss, Elderly Housing avers that it delivered the writ, summons and complaint to the marshal within the 120-day period, but the marshal did not deliver the same to the defendant until after the expiration of that period. Elderly Housing argues, therefore, that § 52-593a saves the apportionment complaint from dismissal. Coppola counters that the Supreme Court's decision in Lostritto, concluding that the 120-day time period in § 52-102b is mandatory, makes § 52-593a inapplicable.
Section 52-593a states: "Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery."
In Lostritto, the apportionment plaintiffs appealed the trial court's dismissal of the apportionment complaint for failure to comply with the 120-day time limitation in § 52-102b(a). The apportionment plaintiffs argued that the time limitation was directory rather than mandatory, and further, that the trial court had granted a 90-day extension pursuant to § 52-190a that should have extended the 120-day time period. The Supreme Court disagreed, holding that the 120-day time limitation contained in § 52-102b(a) is mandatory, implicating the court's personal jurisdiction, and, because § 52-190a(b) did not apply to apportionment claims, the court had no authority to extend the time period. In the absence of equitable reasons for excusing compliance, therefore, the apportionment complaint was properly dismissed. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 26, 35-38.
Although no appellate authority exists on the question of whether § 52-593a applies to apportionment actions, the majority of Connecticut's superior courts that have addressed this issue have held that the savings provision does apply. This, however, does not end the inquiry. It is necessary to determine, in light of Lostritto, whether § 52-593a does, in fact, apply to the present action and preserve this court's personal jurisdiction.
See Alicia v. Konover Residential Corp., Superior Court, judicial district of Windham, Docket No. CV 05 5000033 (April 3, 2006, Martin, J.); Uygur v. S.E. Minor Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0184035 (December 4, 2002, Lewis, J.T.R.) ( 33 Conn. L. Rptr. 464); Young v. Shelton, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 00 0072239 (February 4, 2002, Alander, J.) ( 31 Conn. L. Rptr. 277); Santangeli v. Rivera, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0374749 (June 13, 2001, Skolnick, J.) [ 29 Conn. L. Rptr. 656]; Gillette v. Knaus Development Co., Superior Court, judicial district of Waterbury, Docket No. CV 99 0155985 (September 28, 2000, Wiese, J.) ( 29 Conn. L. Rptr. 656) ( 28 Conn. L. Rptr. 277); Martidis v. Lombard Realty, Superior Court, judicial district of Waterbury, Docket No. CV 97 0142374 (July 30, 1998, Pellegrino, J.) ( 22 Conn. L. Rptr. 534).
The Lostritto court did not decide this specific issue, and the applicability of § 52-593a to the mandatory time period was not part of the court's holding. The court recognized certain equitable reasons for excusing compliance with § 52-102b(a), including waiver and consent. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 37. According to Coppola, this language implies that the saving statute in § 52-593a does not apply to complaints filed under § 52-102b because the court recognized only equitable reasons for excusing noncompliance. This argument extends the Lostritto holding beyond what its rationale warrants.
Central to the Lostritto holding was the court's determination that the time limit contained in § 52-102b(a) could not be extended by motion pursuant to § 52-190a. The court reasoned that, because the time limitation in 52-102b(a) was mandatory and § 52-190a(b) did not apply to apportionment complaints, the trial court could not extend the time period by granting a motion. The court never considered whether another statutory exception could apply and excuse noncompliance with § 52-102b(a). as a result, the present action is factually distinguishable from Lostritto and lies outside the scope of that holding.
In fact, the court's discussion of whether a motion for extension of time pursuant § 52-190a(b) could extend the time limitation contained in § 52-102b(a) illustrates the weakness of Coppola's position. After a thorough discussion of § 52-190a, the court found that the statute did not apply to apportionment complaints because it applied only to actions to recover damages. Apportionment complaints, reasoned the court, were actions to apportion liability, making the provisions of § 52-190a inapplicable. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 36-37. If the Lostritto court were of the mind that noncompliance with the mandatory time provision in § 52-102b may only be excused for equitable reasons, discussion of the applicability of § 52-190a to apportionment complaints would be superfluous.
Whether § 52-593a applies here and saves the apportionment complaint presents a question of statutory interpretation. "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Public Acts 2003, No. 03-154, § 1.
Based on the plain language of § 52-593a, it is clear that the statute applies to the present action. Section 52-593a explicitly provides that a cause of action will not be lost because of a failure to comply with a time limit established by law if its provisions are met. The sole exception to the provisions of § 52-593a is in the instance of an administrative appeal under § 4-183. If the legislature had intended to limit the applicability of § 52-593a to other statutorily created time limitations, it could have explicitly done so.
Furthermore, it bears noting that filing an appeal within the 45 days dictated by § 4-183(c) is a mandatory jurisdictional requirement. Hefti v. Commission on Human Rights Opportunities, 61 Conn.App. 270, 274-75, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001). Thus, if § 52-593a was never intended to apply to any mandatory time limitation, there would be no reason for the legislature to specifically except time limitations for filing administrative appeals under § 4-183.
Elderly Housing established that it served Coppola in accordance with the provisions of 52-593a. In his affidavit attached to Elderly Housing's memorandum, the Marshall swears to the following facts. The writ, summons and apportionment complaint were personally delivered to him on April 8, 2009. He did not serve the same on Coppola until April 14, 2009. Service was completed within 30 days of his personal receipt of the writ, summons and apportionment complaint.
Section 52-593a applies to apportionment complaints filed under § 52-102b. Consequently, the court does not lack personal jurisdiction in this matter. Accordingly, the motion to dismiss is denied.
Motion 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). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegation are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
"A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
Leblanc asserts two grounds for the motion to strike: (1) expiration of the 120-day time limit; and (2) an apportionment complaint of this nature is not allowed because Elderly owed a nondelegable duty as property owner to the plaintiff and, as such, cannot bring an apportionment complaint. The first ground has already been addressed above, and the only remaining issue is whether the nondelegable duty doctrine applies to Elderly.
"Under the general rule, an employer is not liable for the negligence of its independent contractors . . . One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons." (Citations omitted; internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 458, 899 A.2d 563 (2006). In Smith, the Supreme Court stated that "the owner or occupier of a premises owes a nondelegable duty to keep the premises safe by protecting third persons from foreseeable slip and fall injuries. Should the owner or occupier of the premises hire a contractor to maintain the property, the owner or occupier is vicariously liable for the consequences arising from that contractor's tortuous conduct . . . [A] defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties." (Emphasis added.) Id., 460.
"`In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading].' (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580; see also Saucier v. Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 03 0177767 (December 5, 2003, Matasavage, J.) ( 36 Conn. L. Rptr. 110) (only looking to facts alleged in the apportionment complaint on a motion to strike the apportionment complaint); Cintron v. Meriden Square #3, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 5000244 (January 23, 2007, Taylor, J.) (same); Jones v. Greater Waterbury YMCA, Superior Court, judicial district of Waterbury, Docket No. CV 07 5004504 (January 16, 2008, Roche, J.) ( 44 Conn. L. Rptr. 625) (same); Rosario v. Orlando Annulli Sons, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 5007896 (August 9, 2007, Wagner, J.T.R.) ( 44 Conn. L. Rptr. 9)." Callis v. Cumberland Farms, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 07 5009596 (March 20, 2009, Brunetti, J.).
At oral argument, Elderly Housing correctly pointed out that it is the apportionment complaint that must be viewed by this court in a manner most favorable to sustaining its legal sufficiency. The apportionment complaint contains no allegations that Elderly Housing owned, occupied or in any way controlled the subject premises. "When an apportionment complaint fails to allege ownership or control of premises, a court cannot find that a nondelegable duty exists and cannot grant an apportionment defendant's motion to strike." Rosario v. Orlando Annulli Sons, Inc., supra, 44 Conn. L. Rptr. 9; see also Cintron v. Meriden Square #3, supra, Superior Court, Docket No. CV 05 5000244; Jones v. Greater Waterbury YMCA, supra, 44 Conn. L. Rptr. 625.
Additionally, not even the plaintiff's complaint alleges sufficient facts to bring this matter within the ambit of the Smith holding. No allegation exists that Elderly Housing was the owner or occupier of the subject premises. It is alleged only that Elderly Housing "maintains and operates" the parking lot and walkway on which the plaintiff allegedly fell. If anything, it would appear from the plaintiff's complaint that the additional defendant, Harwinton Housing Authority, "owned" the subject property and "was in exclusive control and possession" of the parking lot and walkway. Thus, even if this court were to consider the allegations in the plaintiff's complaint, not only does it fail to allege facts to bring this action within the scope of Smith, but it contains allegations that tend to show affirmatively that Smith does not apply.
For the foregoing reasons, the motion to strike is denied. See Cretella v. HBNI Orange, LLC, Superior Court, judicial district of New Haven, Docket No. CV 06 500 7399 (November 30, 2007, Jones, J.) (denying a motion to strike because apportionment complaint did not allege facts sufficient to bring the matter within the holding of Smith v. Greenwich).